61983J0237

1 . COMMUNITY LAW - PRINCIPLES - PROHIBITION OF DISCRIMINATION BASED ON NATIONALITY - TERRITORIAL SCOPE - LOCATION OF LEGAL RELATIONSHIPS WITHIN THE TERRITORY OF THE COMMUNITY - CRITERIA

2 . FREE MOVEMENT OF PERSONS - WORKERS - EQUALITY OF TREATMENT - NATIONAL OF A MEMBER STATE EMPLOYED BY AN UNDERTAKING OF ANOTHER MEMBER STATE - TEMPORARY WORK OUTSIDE THE COMMUNITY - RETENTION OF AFFILIATION TO THE SOCIAL SECURITY SCHEME OF THE MEMBER STATE IN WHICH THE UNDERTAKING IS ESTABLISHED

( EEC TREATY , ART . 48 ; REGULATION NO 1612/68 OF THE COUNCIL )

1 . THE PRINCIPLE WHEREBY DISCRIMINATION BASED ON NATIONALITY IS PROHIBITED APPLIES IN JUDGING ALL LEGAL RELATIONSHIPS IN SO FAR AS THOSE RELATIONSHIPS , BY REASON EITHER OF THE PLACE WHERE THEY WERE ENTERED INTO OR OF THE PLACE WHERE THEY TOOK EFFECT , COULD BE LOCATED WITHIN THE TERRITORY OF THE COMMUNITY .

2 . THE PROVISIONS OF COMMUNITY LAW CONCERNING THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY , IN PARTICULAR THE PROVISIONS OF REGULATION NO 1612/68 OF THE COUNCIL , MUST BE INTERPRETED AS MEANING THAT THE PRINCIPLE OF NON-DISCRIMINATION APPLIES TO THE CASE OF A NATIONAL OF A MEMBER STATE WHO IS EMPLOYED BY AN UNDERTAKING OF ANOTHER MEMBER STATE , EVEN DURING A PERIOD IN WHICH THE EMPLOYEE TEMPORARILY WORKS OUTSIDE THE TERRITORY OF THE COMMUNITY FOR THAT COMMUNITY UNDER TAKING , AND THAT IN CONNECTION WITH THE APPLICATION OF THE NATIONAL PROVISIONS OF THE MEMBER STATE IN WHICH THAT UNDERTAKING IS ESTABLISHED CONCERNING THE RETENTION OF AFFILIATION TO THE GENERAL SOCIAL SECURITY SCHEME OF THAT STATE DURING THE TEMPORARY POSTING OF THE EMPLOYEE IN QUESTION TO A NON-MEMBER COUNTRY , ANY PROVISION WHICH DISCRIMINATES AGAINST NATIONALS OF OTHER MEMBER STATES MUST BE DISREGARDED .

IN CASE 237/83

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE ET DE LA MUTUALITE SOCIALE AGRICOLE ( SOCIAL SECURITY TRIBUNAL OF FIRST INSTANCE ), PARIS , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

SARL PRODEST

AND

CAISSE PRIMAIRE D ' ASSURANCE MALADIE ( LOCAL SICKNESS INSURANCE FUND ) PARIS ,

ON THE INTERPRETATION OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY , ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 465 ),

1 BY A DECISION OF 3 JUNE 1983 , WHICH WAS RECEIVED AT THE COURT ON 21 OCTOBER 1983 , THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE ET DE LA MUTUALITE SOCIALE AGRICOLE ( SOCIAL SECURITY TRIBUNAL OF FIRST INSTANCE ), PARIS , REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 ON FREEDOM OF MOVEMENT FOR WORKERS WITHIN THE COMMUNITY ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ), P . 475 ).

2 THE QUESTION WAS RAISED IN PROCEEDINGS BETWEEN THE FRENCH COMPANY PRODEST SARL , CAISSE PRIMAIRE D ' ASSURANCE MALADIE ( LOCAL SICKNESS INSURANCE FUND ), PARIS ( HEREINAFTER REFERRED TO AS ' ' THE FUND ' ' ), IN WHICH THE ISSUE WAS WHETHER THE INSURANCE OF A BELGIAN NATIONAL EMPLOYED BY THE COMPANY SHOULD BE MAINTAINED UNDER THE FRENCH SOCIAL SECURITY SCHEME WHILE HE WAS WORKING TEMPORARILY IN NIGERIA .

3 THE FUND REJECTED AN APPLICATION MADE BY THE COMPANY FOR THAT PURPOSE , ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 39 OF THE LAW OF 3 JANUARY 1972 , WHICH BECAME THE THIRD PARAGRAPH OF ARTICLE L 341-3 OF THE CODE DU TRAVAIL ( LABOUR CODE ); IT PROVIDES AS FOLLOWS :

' ' WITHOUT PREJUDICE TO INTERNATIONAL AGREEMENTS , NO TEMPORARY-EMPLOYMENT UNDERTAKING MAY PLACE FOREIGN WORKERS AT THE DISPOSAL OF ANY PERSON WHATSOEVER IF THE SERVICE IN QUESTION IS TO BE PROVIDED OUTSIDE FRENCH TERRITORY . ' '

IN THE VIEW OF THE FUND , THAT PROVISION EXTENDS TO COMMUNITY NATIONALS EXCEPT IN THE CASE OF A POSTING TO A MEMBER STATE .

4 CONSIDERING THAT THE DECISION TO BE GIVEN DEPENDED UPON THE INTERPRETATION OF THE AFOREMENTIONED COMMUNITY REGULATION , THE NATIONAL COURT STAYED THE PROCEEDINGS AND REQUESTED THE COURT OF JUSTICE TO ANSWER THE FOLLOWING QUESTION :

' ' MAY AN INSURED PERSON WHO IS A NATIONAL OF A MEMBER STATE OF THE EUROPEAN ECONOMIC COMMUNITY , IS EMPLOYED BY A FRENCH COMPANY AND IS RESIDENT IN FRANCE , CLAIM THAT HIS INSURANCE UNDER THE FRENCH GENERAL SOCIAL SECURITY SCHEME SHOULD BE MAINTAINED FOR THE DURATION OF HIS POSTING TO NIGERIA , BY VIRTUE OF REGULAION NO 1612/68 OF THE COUNCIL , AND IN THOSE CIRCUMSTANCES IS IT APPROPRIATE TO DISREGARD THE RESTRICTION CONTAINED IN THE SECOND PARAGRAPH OF ARTICLE 39 OF THE LAW OF 3 JANUARY 1972 WHICH HAS BEEN ADOPTED AS THE THIRD PARAGRAPH OF ARTICLE L 341-3 OF THE LABOUR CODE?

' '

5 IT SHOULD BE STATED IN THE FIRST PLACE THAT THE MAIN PROCEEDINGS CONCERN A NATIONAL OF A MEMBER STATE WHO IS AN EMPLOYEE OF A COMPANY ESTABLISHED IN ANOTHER MEMBER STATE AND THAT IN PRINCIPLE SUCH A CASE COMES WITHIN THE SCOPE OF THE COMMUNITY PROVISIONS ON THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY . ESSENTIALLY THE NATIONAL COURT WISHES TO KNOW WHETHER THOSE RULES MAY BE DISREGARDED WHEN THE COMMUNITY EMPLOYER ASSIGNS A WORKER TO A TEMPORARY POSTING OUTSIDE THE COMMUNITY .

6 IN ITS JUDGMENT OF 12 DECEMBER 1974 ( CASE 36/74 WALRAVE V UNION CYCLISTE INTERNATIONALE ( 1974 ) ECR 1405 ), IN WHICH ONE OF THE QUESTIONS WAS WHETHER OR NOT IT WAS IMPORTANT THAT THE ACITIVITIES AT ISSUE WERE CARRIED OUT PARTLY OUTSIDE THE TERRITORY OF THE COMMUNITY , THE COURT RULED THAT THE PRINCIPLE OF NON-DISCRIMINATION AS LAID DOWN , INTER ALIA , IN ARTICLE 48 OF THE TREATY AND IN THE AFOREMENTIONED REGULATION NO 1612/68 APPLIED IN JUDGING ALL LEGAL RELATIONSHIPS IN SO FAR AS THOSE RELATIONSHIPS , BY REASON EITHER OF THE PLACE WHERE THEY WERE ENTERED INTO OR OF THE PLACE WHERE THEY TOOK EFFECT , COULD BE LOCATED WITHIN THE TERRITORY OF THE COMMUNITY . IT FOLLOWS THAT ACTIVITIES TEMPORARILY CARRIED ON OUTSIDE THE TERRITORY OF THE COMMUNITY ARE NOT SUFFICIENT TO EXCLUDE THE APPLICATION OF THAT PRINCIPLE , AS LONG AS THE EMPLOYMENT RELATIONSHIP RETAINS A SUFFICIENTLY CLOSE LINK WITH THAT TERRITORY .

7 IN A CASE SUCH AS THIS , A LINK OF THAT KIND CAN BE FOUND IN THE FACT THAT THE COMMUNITY WORKER WAS ENGAGED BY AN UNDERTAKING ESTABLISHED IN ANOTHER MEMBER STATE AND , FOR THAT REASON , WAS INSURED UNDER THE SOCIAL SECURITY SCHEME OF THAT STATE , AND IN THE FACT THAT HE CONTINUED TO WORK ON BEHALF OF THE COMMUNITY UNDERTAKING EVEN DURING HIS POSTING TO A NON-MEMBER COUNTRY .

8 BY VIRTUE OF ARTICLE 7 ( 2 ) OF THE AFOREMENTIONED REGULATION NO 1612/68 , THE PRINCIPLE OF NON-DISCRIMINATION ALSO APPLIES TO THE SOCIAL ADVANTAGES ENJOYED BY WORKERS . EVEN THOUGH THAT PROVISION IS STATED TO REFER TO THE ADVANTAGES ENJOYED BY COMMUNITY NATIONALS IN THE TERRITORY OF THE OTHER MEMBER STATES , IT MUST BE INTERPRETED , IN THE LIGHT OF THE DECISION OF THE COURT CITED ABOVE , AS ALSO APPLYING TO A SITUATION SUCH AS THAT DESCRIBED ABOVE .

9 CONSEQUENTLY , WHEN THE SOCIAL SECURITY AUTHORITIES OF THE MEMBER STATE IN WHICH AN EMPLOYER IS ESTABLISHED APPLY THEIR NATIONAL LEGISLATION IN CIRCUMSTANCES SUCH AS THOSE OF THE PRESENT CASE , THEY MUST DISREGARD ANY PROVISION WHICH LEADS TO DISCRIMINATION AGAINST WORKERS WHO ARE NATIONALS OF ANOTHER MEMBER STATE .

10 THE ANSWER TO THE QUESTION SUBMITTED MUST THEREFORE BE THAT THE PROVISIONS OF COMMUNITY LAW CONCERNING THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY , IN PARTICULAR THE PROVISIONS OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 , MUST BE INTERPRETED AS MEANING THAT THE PRINCIPLE OF NON-DISCRIMINATION APPLIES TO THE CASE OF A NATIONAL OF A MEMBER STATE WHO IS EMPLOYED BY AN UNDERTAKING OF ANOTHER MEMBER STATE EVEN DURING A PERIOD IN WHICH THE EMPLOYEE TEMPORARILY WORKS OUTSIDE THE TERRITORY OF THE COMMUNITY FOR THAT COMMUNITY UNDERTAKING , AND THAT IN CONNECTION WITH THE APPLICATION OF THE NATIONAL PROVISIONS OF THE MEMBER STATE IN WHICH THAT UNDERTAKING IS ESTABLISHED CONCERNING THE RETENTION OF AFFILIATION TO THE GENERAL SOCIAL SECURITY SCHEME OF THAT STATE DURING THE TEMPORARY POSTING OF THE EMPLOYEE IN QUESTION TO A NON-MEMBER COUNTRY , ANY PROVISION WHICH DISCRIMINATES AGAINST NATIONALS OF OTHER MEMBER STATES MUST BE DISREGARDED .

COSTS

11 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ( FIFTH CHAMBER )

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE COMMISSION DE PREMIERE INSTANCE DU CONTENTIEUX DE LA SECURITE SOCIALE ET DE LA MUTUALITE SOCIALE AGRICOLE DE PARIS BY A DECISION OF 3 JUNE 1983 , HEREBY RULES :

THE PROVISIONS OF COMMUNITY LAW CONCERNING THE FREE MOVEMENT OF WORKERS WITHIN THE COMMUNITY , IN PARTICULAR THE PROVISIONS OF REGULATION NO 1612/68 OF THE COUNCIL OF 15 OCTOBER 1968 , MUST BE INTERPRETED AS MEANING THAT THE PRINCIPLE OF NON-DISCRIMINATION APPLIES TO THE CASE OF A NATIONAL OF A MEMBER STATE WHO IS EMPLOYED BY AN UNDERTAKING OF ANOTHER MEMBER STATE EVEN DURING A PERIOD IN WHICH THE EMPLOYEE TEMPORARILY WORKS OUTSIDE THE TERRITORY OF THE COMMUNITY FOR THAT COMMUNITY UNDERTAKING , AND THAT IN CONNECTION WITH THE APPLICATION OF THE NATIONAL PROVISIONS OF THE MEMBER STATE IN WHICH THAT UNDERTAKING IS ESTABLISHED CONCERNING THE RETENTION OF AFFILIATION TO THE GENERAL SOCIAL SECURITY SCHEME OF THAT STATE DURING THE TEMPORARY POSTING OF THE EMPLOYEE IN QUESTION TO A NON-MEMBER COUNTRY , ANY PROVISION WHICH DISCRIMINATES AGAINST NATIONALS OF OTHER MEMBER STATES MUST BE DISREGARDED .