61975J0008

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1 . SOCIAL SECURITY FOR MIGRANT WORKERS - WORKER'S RESIDENCE IN ONE MEMBER STATE - OCCASIONAL WORK IN ANOTHER MEMBER STATE - LEGISLATION APPLICABLE

( REGULATION NO 3 OF THE COUNCIL, FIRST SENTENCE OF ARTICLE 13 ( 1 ) ( C ) ( AS AMENDED ))

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - EMPLOYER - EMPLOYER ESTABLISHED IN A MEMBER STATE OTHER THAN THE STATE WHOSE LEGISLATION IS APPLICABLE TO THE WORKER - OBLIGATION TO PAY THE CONTRIBUTIONS PRESCRIBED BY THAT LEGISLATION

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 8 )

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - WORKER'S RESIDENCE IN ONE MEMBER STATE - OCCASIONAL WORK IN ANOTHER MEMBER STATE - ACCIDENT AT WORK - ACCIDENT ON WAY TO OR FROM WORK - BENEFITS IN KIND - GRANT BY THE SOCIAL SECURITY INSTITUTION OF THE COUNTRY WHERE THE OCCASIONAL WORK IS CARRIED OUT AT THE EXPENSE OF THE INSTITUTION OF THE COMPETENT STATE

( REGULATION NO 3 OF THE COUNCIL, ARTICLE 29 ( 1 ))

1 . BY VIRTUE OF THE FIRST SENTENCE OF ARTICLE 13 ( 1 ) ( C ) ( AS AMENDED ) OF REGULATION NO 3, A WORKER HAVING HIS PERMANENT RESIDENCE IN ONE STATE WHO OCCASIONALLY PURSUES HIS ACTIVITY IN ANOTHER MEMBER STATE, IN CIRCUMSTANCES CAPABLE OF MAKING HIM SUBJECT TO THE SOCIAL SECURITY SCHEME ESTABLISHED BY THE LATTER STATE FOR WAGE-EARNERS AND ASSIMILATED WORKERS, IS SUBJECT TO THE LEGISLATION OF THE STATE OF HIS RESIDENCE IN SO FAR AS HE IS AFFILIATED AS A WAGE-EARNER OR ASSIMILATED WORKER TO THE SOCIAL SECURITY SCHEME OF THAT STATE .

BY VIRTUE OF ARTICLE 12 OF THAT REGULATION, IF HE IS NOT SO AFFILIATED HE IS SUBJECT TO THE SOCIAL SECURITY LEGISLATION OF THE MEMBER STATE IN WHICH HE OCCASIONALLY PURSUES HIS ACTIVITY .

2 . IF AN EMPLOYER ESTABLISHED IN A MEMBER STATE OTHER THAN THE ONE WHOSE SOCIAL SECURITY LEGISLATION IS APPLICABLE TO THE WORKER, IS NOT BOUND TO PAY CONTRIBUTIONS TO THE SOCIAL SECURITY AUTHORITIES OF HIS OWN STATE, HE IS OBLIGED TO PAY THOSE LAID DOWN BY THE LEGISLATION WHICH IS APPLICABLE TO THE WORKER .

3 . IN THE CASE OF AN ACCIDENT AT WORK, INCLUDING AN ACCIDENT ON THE WAY TO OR FROM WORK, WHICH HAPPENS TO A WAGE-EARNER OR ASSIMILATED WORKER SUBJECT TO THE LEGISLATION OF THE STATE OF HIS PERMANENT RESIDENCE, WHO IS OCCASIONALLY EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE, THE SOCIAL SECURITY INSTITUTION OF THE LATTER STATE, AS THE INSTITUTION OF THE PLACE WHERE THE WORKER IS, IS ONLY OBLIGED, UNDER ARTICLE 29 ( 1 ) OF REGULATION NO 3, SHOULD THE OCCASION ARISE, TO ISSUE BENEFITS IN KIND PROVIDED FOR BY ITS OWN LEGISLATION AT THE EXPENSE OF THE INSTITUTION OF THE COMPETENT STATE .

IN CASE 8/75 REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DE CASSATION OF FRANCE, SOCIAL CHAMBER, FOR A PRELIMINARY RULING IN THE CASE PENDING BEFORE THAT COURT BETWEEN

CAISSE PRIMAIRE D'ASSURANCE MALADIE DE SELESTAT

AND

ASSOCIATION DU FOOT-BALL CLUB D'ANDLAU

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATIONS NOS 3 AND 4 OF THE COUNCIL DETERMINING THE LEGISLATION APPLICABLE,

1 BY AN ORDER DATED 4 DECEMBER 1974, WHICH REACHED THE COURT REGISTRY ON 29 JANUARY 1975, THE COUR DE CASSATION OF FRANCE REFERRED TO THE COURT, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, QUESTIONS RELATING TO THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATION NO 3 OF THE COUNCIL CONCERNING SOCIAL SECURITY FOR MIGRANT WORKERS AND ITS IMPLEMENTING REGULATION NO 4 .

2 THESE QUESTIONS WERE RAISED IN THE COURSE OF A CASE BROUGHT BEFORE THAT COURT RELATING TO A DEMAND FOR SOCIAL SECURITY CONTRIBUTIONS UNDER THE FRENCH GENERAL SOCIAL SECURITY SCHEME MADE TO THE FRENCH EMPLOYER OF FIVE MUSICIANS OF GERMAN NATIONALITY, HAVING THEIR PERMANENT RESIDENCE IN THE FEDERAL REPUBLIC OF GERMANY, AND WHO MADE APPEARANCES IN FRANCE IN 1970 AT THREE BALLS ORGANIZED BY THE ASSOCIATION DU FOOT-BALL CLUB D'ANDLAU .

THE FIRST QUESTION

3 THE FIRST QUESTION ASKS WHETHER 'GERMAN SOCIAL SECURITY LEGISLATION IS APPLICABLE TO A GERMAN MUSICIAN, RESIDENT IN GERMANY, WHETHER OR NOT AFFILIATED IN THE FEDERAL REPUBLIC OF GERMANY TO A SOCIAL SECURITY INSTITUTION, EITHER AS AN EMPLOYEE OR AS AN INDEPENDENT WORKER, WHO OCCASIONALLY APPEARS AS A PUBLIC PERFORMER IN FRANCE WHERE SUCH PERFORMANCES WOULD NORMALLY ENTAIL HIS BEING SUBJECT TO THE FRENCH SOCIAL SECURITY SYSTEM FOR WAGE-EARNERS AND ASSIMILATED WORKERS '.

4 ARTICLE 12 ( 1 ) ( AS AMENDED ) OF REGULATION NO 3 PROVIDES : 'WAGE-EARNERS OR ASSIMILATED WORKERS EMPLOYED IN THE TERRITORY OF ONE MEMBER STATE SHALL BE SUBJECT TO THE LEGISLATION OF THAT STATE EVEN IF ... THEIR EMPLOYER OR THE REGISTERED OFFICE OF THE UNDERTAKING WHICH EMPLOYS THEM IS SITUATED IN THE TERRITORY OF ANOTHER MEMBER STATE '.

5 ARTICLE 13 ( 1 ) OF THE SAME REGULATION PROVIDES SOME EXCEPTIONS TO THIS PRINCIPLE, PARTICULARLY IN CASES WHERE, BY REASON OF THE PLACE WHERE THE REGISTERED OFFICE OF THE UNDERTAKING OR HIS EMPLOYER IS SITUATED, IT IS IMPOSSIBLE OR UNJUSTIFIABLE TO SUBJECT THE WORKER TO THE LEGISLATION OF THE STATE WHERE HE IS WORKING TEMPORARILY .

6 THE FIRST SENTENCE OF ARTICLE 13 ( 1 ) ( C ) ( AS AMENDED ) PROVIDES THAT : 'WAGE-EARNERS AND ASSIMILATED WORKERS ... WHO NORMALLY WORK IN THE TERRITORY OF MORE THAN ONE MEMBER STATE, SHALL BE SUBJECT TO THE LEGISLATION OF THE MEMBER STATE IN THE TERRITORY OF WHICH THEY HAVE THEIR PERMANENT RESIDENCE '.

7 THIS PROVISION IS MAINLY AIMED AT AVOIDING THE OVERLAPPING OF SEVERAL NATIONAL SYSTEMS OF LEGISLATION WHERE A WORKER WHO IS AFFILIATED TO THE SOCIAL SECURITY SCHEME OF THE MEMBER STATE WHERE HE IS PERMANENTLY RESIDENT, TRAVELS TEMPORARILY IN OTHER MEMBER STATES BY REASON OF HIS WORK, WHILST NOT CHANGING HIS PERMANENT RESIDENCE .

8 THEREFORE A PREREQUISITE FOR THE APPLICATION OF THIS PROVISION IS THAT THE WORKER IS AFFILIATED TO A SOCIAL SECURITY INSTITUTION IN THE STATE WHERE HE HAS HIS PERMANENT RESIDENCE .

9 IF THERE IS NO SUCH AFFILIATION, THE APPLICABLE LEGISLATION IS DETERMINED IN ACCORDANCE WITH THE GENERAL PRINCIPLE OF ARTICLE 12 OF REGULATION NO 3 IN SO FAR AS THE WORKER SATISFIES BY REASON OF HIS WORK THE CONDITIONS FOR AFFILIATION SET OUT BY THE SOCIAL SECURITY LEGISLATION OF THE COUNTRY WHERE HE IS EMPLOYED .

10 IN ADDITION, BY THE REFERENCE TO WORKERS WHO 'NORMALLY' WORK IN MORE THAN ONE MEMBER STATE, THE FIRST SENTENCE OF THE SAID ARTICLE 13 ( 1 ) ( C ) IS NOT INTENDED TO EXCLUDE FROM ITS SCOPE THE CASE OF A WORKER WHO, WHILST NOT COMPLYING WITH THE CONDITIONS SET OUT IN ARTICLE 13 ( 1 ) ( A ), IS EMPLOYED IN A MEMBER STATE OTHER THAN THAT OF HIS PLACE OF PERMANENT RESIDENCE, NOT HABITUALLY BUT OCCASIONALLY .

11 FOR THE ABOVE REASONS THE ANSWER TO BE GIVEN IS THAT A WORKER HAVING HIS PERMANENT RESIDENCE IN ONE MEMBER STATE WHO IS OCCASIONALLY EMPLOYED IN ANOTHER MEMBER STATE IS, BY VIRTUE OF THE FIRST SENTENCE OF THE SAID ARTICLE 13 ( 1 ) ( C ) OF REGULATION NO 3, SUBJECT TO THE LEGISLATION OF THE STATE OF HIS PERMANENT RESIDENCE IN SO FAR AS HE IS AFFILIATED AS A WAGE-EARNER OR ASSIMILATED WORKER TO THE SOCIAL SECURITY SCHEME OF THIS STATE AND IF HE IS NOT SO AFFILIATED HE IS SUBJECT TO THE SOCIAL SECURITY LEGISLATION OF THE MEMBER STATE WHERE HE WORKS OCCASIONALLY .

THE SECOND QUESTION

12 IN THE SECOND QUESTION IT IS ASKED 'WHETHER THE APPLICATION OF THE COMMUNITY REGULATIONS HAS THE EFFECT OF EXEMPTING A FRENCH EMPLOYER FROM THE CONTRIBUTIONS WHICH WOULD NORMALLY BE DUE FROM HIM TO THE FRENCH SOCIAL SECURITY INSTITUTIONS IN RESPECT OF THE EMPLOYMENT IN FRANCE OF PUBLIC PERFORMERS AND OF MAKING IT MORE ADVANTAGEOUS FOR HIM TO EMPLOY GERMAN MUSICIANS THAN FRENCH MUSICIANS '.

13 ARTICLE 8 OF REGULATION NO 3 PROVIDES THAT : 'PERSONS PERMANENTLY RESIDENT IN THE TERRITORY OF ANY MEMBER STATE TO WHOM THIS REGULATION APPLIES SHALL HAVE THE SAME RIGHTS AND OBLIGATIONS UNDER THE SOCIAL SECURITY LEGISLATION OF EVERY OTHER MEMBER STATE AS THE LATTER'S NATIONALS '.

14 THUS IT FOLLOWS FROM THE ANSWER GIVEN TO THE FIRST QUESTION THAT THE SOCIAL SECURITY RELATIONSHIPS IN QUESTION ARE GOVERNED BY THE LEGISLATION OF THE STATE WHERE THE WORKER HAS HIS PERMANENT RESIDENCE IF HE IS AFFILIATED TO A SOCIAL SECURITY INSTITUTION OF THAT STATE .

15 THEREFORE THE OBLIGATION TO PAY THE CONTRIBUTIONS WHICH ARE LAID DOWN BY THE SOCIAL SECURITY LEGISLATION IS ALSO APPLICABLE TO AN EMPLOYER ESTABLISHED IN ANOTHER MEMBER STATE ON THE TERRITORY OF WHICH THE WORKER IS TEMPORARILY EMPLOYED .

16 IN SUCH A CASE ARTICLE 51 OF THIS REGULATION PROVIDES FOR THE RECOVERY OF CONTRIBUTIONS DUE TO AN INSTITUTION OF ONE MEMBER STATE AND LAYS DOWN THE GENERAL CONDITIONS UNDER WHICH THIS RECOVERY MAY BE MADE ON THE TERRITORY OF THE STATE WHERE THE WORKER IS EMPLOYED .

17 THE ANSWER TO THE SECOND QUESTION SHOULD THEREFORE BE THAT IF AN EMPLOYER ESTABLISHED IN A MEMBER STATE OTHER THAN THE ONE WHOSE SOCIAL SECURITY LEGISLATION IS APPLICABLE TO THE WORKER, IS NOT BOUND TO PAY CONTRIBUTIONS TO THE SOCIAL SECURITY AUTHORITIES OF HIS OWN STATE, HE IS OBLIGED TO PAY THOSE LAID DOWN BY THE LEGISLATION WHICH IS APPLICABLE TO THE WORKER .

THE THIRD QUESTION

18 IN THE THIRD QUESTION IT IS ASKED 'WHETHER OR NOT, IN THE CASE OF AN ACCIDENT AT WORK OR ON THE WAY TO OR FROM WORK, IN FRANCE, THE FRENCH SOCIAL SECURITY INSTITUTIONS WOULD NOT HAVE TO PAY BENEFITS TO GERMAN MUSICIANS '.

19 ARTICLE 29 OF REGULATION NO 3 RELATING TO 'ACCIDENTS AT WORK AND OCCUPATIONAL DISEASES' PROVIDES IN PARAGRAPH ( 1 ) THAT 'ANY WAGE-EARNER OR ASSIMILATED WORKER WHO SUSTAINS AN ACCIDENT AT WORK ... IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT OF THE COMPETENT COUNTRY ... SHALL BE ENTITLED TO RECEIVE AT THE EXPENSE OF THE COMPETENT INSTITUTION BENEFITS IN KIND ISSUED BY THE INSTITUTION OF THE PLACE OF TEMPORARY OR PERMANENT RESIDENCE '.

20 BY PARAGRAPH ( 6 ) OF THIS ARTICLE THE COST OF THE BENEFITS 'SHALL BE REIMBURSED TO THE INSTITUTIONS WHICH ISSUED THEM ..'.

21 IN ADDITION, IN RELATION TO CASH BENEFITS, PARAGRAPH ( 7 ) OF THIS ARTICLE PROVIDES THAT THE COST 'SHALL BE BORNE BY THE COMPETENT INSTITUTION IN ACCORDANCE WITH THE LEGISLATION APPLICABLE TO IT '.

22 IN THE CASE OF A WAGE-EARNER OR ASSIMILATED WORKER SUBJECT TO THE LEGISLATION OF THE STATE WHERE HE HAS HIS PERMANENT RESIDENCE WHO OCCASIONALLY IS EMPLOYED IN ANOTHER MEMBER STATE, THE 'COMPETENT COUNTRY' FOR THE PURPOSES OF THESE PROVISIONS IS THE STATE OF HIS PERMANENT RESIDENCE, AND THE 'COMPETENT INSTITUTION' IS THAT OF THE SAME STATE .

23 THUS THE ANSWER SHOULD BE THAT IN THE CASE OF AN ACCIDENT AT WORK, INCLUDING AN ACCIDENT ON THE WAY TO OR FROM WORK, WHICH HAPPENS TO A WAGE-EARNER OR ASSIMILATED WORKER SUBJECT TO THE LEGISLATION OF THE STATE WHERE HE HAS HIS PERMANENT RESIDENCE, WHO IS OCCASIONALLY EMPLOYED ON THE TERRITORY OF ANOTHER MEMBER STATE, THE SOCIAL SECURITY INSTITUTION OF THE LATTER STATE, AS THE INSTITUTION OF THE PLACE WHERE THE WORKER IS, IS ONLY OBLIGED, UNDER ARTICLE 29 ( 1 ) OF REGULATION NO 3, SHOULD THE OCCASION ARISE, TO ISSUE THE BENEFITS IN KIND PROVIDED BY ITS OWN LEGISLATION AT THE EXPENSE OF THE INSTITUTION OF THE COMPETENT STATE .

24 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE .

25 AS THESE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COUR DE CASSATION OF FRANCE, BY ITS ORDER OF 4 DECEMBER 1974 HEREBY RULES :

1 . BY VIRTUE OF THE FIRST SENTENCE OF ARTICLE 13 ( 1 ) ( C ) ( AS AMENDED ) OF REGULATION NO 3, A WORKER HAVING HIS PERMANENT RESIDENCE IN ONE STATE WHO OCCASIONALLY PURSUES HIS ACTIVITY IN ANOTHER MEMBER STATE IS SUBJECT TO THE LEGISLATION OF THE STATE OF HIS RESIDENCE IN SO FAR AS HE IS AFFILIATED AS A WAGE-EARNER OR ASSIMILATED WORKER TO THE SOCIAL SECURITY SCHEME OF THAT STATE . IF HE IS NOT SO AFFILIATED HE IS SUBJECT TO THE SOCIAL SECURITY LEGISLATION OF THE MEMBER STATE IN WHICH HE OCCASIONALLY PURSUES HIS ACTIVITY .

2 . IN THE CASE OF AN ACCIDENT AT WORK, INCLUDING AN ACCIDENT ON THE WAY TO OR FROM WORK, WHICH HAPPENS TO A WAGE-EARNER OR ASSIMILATED WORKER SUBJECT TO THE LEGISLATION OF THE STATE OF HIS PERMANENT RESIDENCE, WHO IS OCCASIONALLY EMPLOYED IN THE TERRITORY OF ANOTHER MEMBER STATE, THE SOCIAL SECURITY INSTITUTION OF THE LATTER STATE, AS THE INSTITUTION OF THE PLACE WHERE THE WORKER IS, IS ONLY OBLIGED, UNDER ARTICLE 29 ( 1 ) OF REGULATION NO 3, SHOULD THE OCCASION ARISE, TO ISSUE THE BENEFITS IN KIND PROVIDED FOR BY ITS OWN LEGISLATION AT THE EXPENSE OF THE INSTITUTION OF THE COMPETENT STATE .