Keywords
Summary

Keywords

1. Freedom of movement for persons - Freedom of establishment - Workers - Regulation No 1408/71 - Paid employment in one Member State and self-employment in another

(EC Treaty, Arts 48, 51 and 52 (now, after amendment, Arts 39 EC, 42 EC and 43 EC); Council Regulation No 1408/71, Art 14c(b); Council Regulation No 3811/86)

2. Freedom of movement for persons - Freedom of establishment - Workers - Regulation No 1408/71 - Situations covered by the legislation of two Member States at the same time - Conditions

(EC Treaty, Arts 48 and 52 (now, after amendment, Arts 39 EC and 43 EC); Council Regulation No 1408/71, Art 14c(b))

Summary

1. Articles 48, 51 and 52 of the Treaty, (now, after amendment, Articles 39 EC, 42 EC and 43 EC) are intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community, and preclude national legislation which might place Community citizens at a disadvantage when they wish to extend their activities beyond the territory of a single Member State. However, the Treaty did not provide for the harmonisation of the social security legislation of the Member States. Accordingly, the Treaty offers no guarantee to a worker that extending his activities into more than one Member State or transferring them to another Member State will be neutral as regards social security, and, given the disparities in the social security legislation of the Member States, such an extension or transfer may be to the worker's advantage in terms of social security or not, according to circumstance. In principle, any disadvantage, by comparison with the situation of a worker who pursues all his activities in one Member State, resulting from the extension or transfer of his activities into or to one or more other Member States and from his being subject to additional social security legislation is not contrary to Articles 48 and 52 of the Treaty if that legislation does not place that worker at a disadvantage as compared with those who pursue all their activities in the Member State where it applies or as compared with those who were already subject to it and if it does not simply result in the payment of social security contributions on which there is no return.

It does not follow from Articles 48 and 52 of the Treaty that the exercise of the right to freedom of movement for persons pursuing an occupational activity will never result in variations in the level of social security contributions which they may be required to pay or in the level of social security cover afforded to them, nor does it follow from those articles that, in the absence of harmonisation of social security legislation, neutrality as regards the complexity, for the persons concerned, of the administration of their social security cover will be guaranteed in all circumstances. Thus, the system put in place by Regulation No 1408/71 is merely a system of coordination, and the question of the compliance of the provisions of Article 14c(b), under which a person who is employed in certain Member States and self-employed in certain other Member States is simultaneously subject to the legislation of two Member States, with the requirements of Articles 48, 51 and 52 of the Treaty cannot be determined on the basis of the differences, in terms of social security contributions or benefits, between situations in which a worker is simultaneously in paid employment and self-employed in a single Member State and situations in which a worker pursues such activities in different Member States.

( see paras 47, 50-52, 54, 58 )

2. As regards Article 14c of Regulation No 1408/71, the Council fulfilled its function of coordinating the application of social security legislation for migrant workers by determining the legislation applicable to the persons concerned. The Council provided that a person who is employed in certain Member States and self-employed in certain other Member States is to be subject to the legislation of two different Member States simultaneously, one by virtue of his employment and the other by virtue of his self-employment, whereas if those activities were pursued simultaneously in other Member States, he would be subject to the legislation of only one State, determined on the basis of his paid employment.

In situations falling within Article 14c(b), the Member States whose legislation is applicable simultaneously must ensure compliance with the requirements of Articles 48, 51 and 52 of the Treaty (now, after amendment, Articles 39 EC, 42 EC and 43 EC). It is, where appropriate, for the national court hearing disputes in the context of the application of Article 14c(b), first, to ascertain that the legislation of the States concerned applied in that context is applied in accordance with Articles 48 and 52 of the Treaty, and in particular that the national legislation whose conditions for application are at issue does afford social security cover for the person concerned, and, second, to determine whether that provision should, exceptionally, be disapplied at the request of the worker concerned where it would cause him to lose a social security advantage which he originally enjoyed under a social security convention in force between two or more Member States.

( see paras 59, 63, 67, operative part )