61990J0196

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1. Social security for migrant workers - Community rules - Matters covered - Employment relationship between worker and employer - Excluded

(Council Regulation No 1408/71, Art. 4(1) )

2. Social security for migrant workers - Applicable legislation - Mariners - Worker employed on board a vessel flying the flag of a Member State other than the one in which the undertaking remunerating him has its registered office - Legislation of the Member State in which the undertaking has its registered office and the worker is resident - Provision of the applicable national legislation making affiliation to the social security scheme and the validity of the mariner' s contract of employment subject to the condition that the vessel is flying the national flag - Application precluded

(Council Regulation No 1408/71, Art. 14(2)(c) )

1. Regulation No 1408/71, which applies only to legislation relating to the various branches of social security, contains no conflict rules concerning the legislation applicable to the employment relationship between worker and employer.

2. Article 14(2)(c) of Regulation No 1408/71, in the version in force in February 1980, must be interpreted as meaning that it has the effect of precluding the application to a worker employed on board a vessel flying the flag of a member State who is remunerated for that work by an undertaking whose registered office is in another Member State in which the worker is himself resident or to his beneficiaries of a provision of the legislation of the latter Member State under which admission to the social security scheme provided for is made subject to the condition that the vessel on board which the worker is employed is flying the flag of that Member State, and also of any provision of that legislation providing that a contract is null and void to the extent to which it has the effect of leaving without social security cover any person falling within the scope of the regulation and of preventing the conflict rule laid down in Article 14(2)(c) aforesaid from being fully effective.

In Case C-196/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Hof van Cassatie (Court of Cassation) Belgium for a preliminary ruling in the proceedings pending before that court between

Fonds voor Arbeidsongevallen

and

Madeleine De Paep

on the interpretation of Articles 48 and 51 of the EEC Treaty and of Articles 3(1), 13(2)(b) and 14(2)(c) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and to members of their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416, in the version in force in February 1980 (subsequently codified and published in Official Journal 1980 C 138, p. 1),

THE COURT (Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, T.F. O' Higgins, C.N. Kakouris, F. Schockweiler and P.J.G. Kapteyn, Judges,

Advocate General: G. Tesauro,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of the Commission of the European Communities by B.J. Drijber, a member of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the Commission at the hearing on 4 June 1991,

after hearing the Opinion of the Advocate General at the sitting on 9 July 1991,

gives the following

Judgment

1 By judgment of 18 June 1990, which was received at the Court on 28 June 1990, the Hof van Cassatie of Belgium referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Articles 48 and 51 of the EEC Treaty and of Articles 3(1), 13(2)(b) and 14(2)(c) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and to members of their families moving within the Community (Official Journal, English Special Edition 1971 (II), p. 416), in its version in force in February 1980 (subsequently codified and published in Official Journal 1980 C 138, p. 1).

2 Those questions were raised in the course of proceedings between the Fonds voor Arbeidsongevallen, a Belgian public body responsible for paying compensation for losses sustained as a result of accidents at work, the appellant in cassation (hereinafter referred to as the "Fund"), and Madeleine De Paep, the respondent in cassation, concerning the refusal by the Fund to grant to Mrs De Paep an annuity in compensation for the loss suffered by her as a result of the death of her son, Piet Ackx.

3 It is apparent from the documents before the Court that at the time of the accident Piet Ackx was working with Germain Ackx, the husband of Mrs De Paep, on board the vessel Hosanna. That vessel belonged to the De Paep company, whose registered office was at Knokke-Heist, (Belgium), and whose manager was Mrs De Paep. The vessel ran aground on 20 July 1979 sustaining considerable damage as a result of which it was declared to be unseaworthy. Under Belgian law the ban on sailing imposed on the vessel could be lifted only after duly approved repairs had been effected. However, no repairs to the vessel were carried out.

4 On 29 January 1980 the vessel was sold to a British company, Minerva Fisheries Ltd, which had it registered in the United Kingdom. Mrs De Paep, and her husband Germain Ackx, held one half of the shares in that company.

5 In the night of 15 to 16 February 1980 the vessel was shipwrecked. Germain Ackx, its captain and Piet Ackx, a member of its crew, were declared missing. They were officially declared to be dead by the Rechtbank van Eerste Aanleg (Court of First Instance, Bruges) by judgment of 15 September 1981. At the time of the accident Piet Ackx was still being remunerated by the De Pax company.

6 Since the Fund refused to grant the annuity claimed by Mrs De Paep for the loss of her son, Mrs De Paep brought an action before the Arbeidsrechtbank (Labour Court) Bruges. By judgment of 28 December 1982, that court upheld Mrs De Paep' s claim.

7 The Fund appealed against that judgment to the Arbeidshof (Labour Court of Appeal) Ghent. By judgment of 9 June 1988 the Arbeidshof held that, in accordance with the conflict rules laid down in Regulation No 1408/71 the Belgian legislation on accidents at work was applicable to the case before it and thus decided to grant Mrs De Paep an annuity equivalent to 20% of her son' s annual remuneration.

8 The Hof van Cassatie of Belgium to which the Fund appealed against the judgment of the Arbeidshof was confronted with two problems. First, it held that under Article 89(2) of the Belgian Law of 5 June 1928 governing mariners' contracts of employment (Moniteur Belge of 26 July 1928), the contract of employment, whatever might be its nature, is terminated inter alia by an official declaration of the vessel' s unseaworthiness. Finding that the Hosanna had been declared unseaworthy, the Hof van Cassatie concluded that, in accordance with Belgian legislation, Piet Ackx was not bound by a contract of employment at the time of the accident. However, it raised the question whether, for the purposes of the application of Article 13(2)(b) and 14(2)(c) of Regulation No 1408/71, the validity of a contract of employment or the existence of an employment relationship between a mariner and the undertaking remunerating him falls to be assessed in the light of the legislation of the country in which that undertaking has its registered office.

9 Secondly, the Hof van Cassatie pointed out that under the first subparagraph of Article 58(1) of the Belgian Law of 10 April 1971 on accidents at work (Moniteur Belge 1971, p. 5201), as applicable at the time of the accident, the Fund is entrusted with the task of paying compensation for accidents at work where the victims are mariners, but that under Article 76(1) of that law mariners are defined as: "4. the crew of a Belgian fishing vessel". Noting that at the time of the accident the vessel in question was flying the United Kingdom flag, it concluded that the Belgian law on accidents at work could not apply. Nevertheless, it raised the question as to the extent to which it was appropriate to apply Regulation No 1408/71, where the person concerned was being remunerated by an undertaking whose registered office was in Belgium.

10 It was in that context that the Hof van Cassatie of Belgium referred the following questions to the Court:

"Assuming that a person resident in Belgium, employed on a fishing vessel flying the British flag and remunerated by an undertaking whose registered office is in Belgium, has an accident at work on board that vessel:

(1) Must Article 13(2)(b) (now Article 13(2)(c) ) and Article 14(2)(c) (now Article 14b) of Regulation (EEC) No 1408/71 be interpreted as meaning that the employment relationship between the person concerned and the undertaking by which he is remunerated must be assessed in accordance with the law of the country in which the undertaking has its registered office?

(2) Must the provisions of EEC law relating to the free movement and equal treatment of workers from the Member States, in particular Articles 48 and 51 of the EEC Treaty and Articles 3(1), 13(2)(b) (now Article 13(2)(c) ) and Article 14(2)(c) (now Article 14b) of Regulation No 1408/71, be interpreted as meaning that the competent country' s legislation governing the contract of employment and on compensation for accidents at work may not have the result that, in his relationship to the undertaking by which he is remunerated and in his and his beneficiaries' relationship to the insurance institution for accidents at work, the person concerned cannot rely on that legislation because the vessel was not fitted out under the flag of the country in which the undertaking has its registered office?"

11 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The first question

12 It is sufficient to point out with respect to this question that by virtue of Article 4(1) of Regulation No 1408/71 that regulation is to apply to the Member States' legislation concerning the various branches of social security. It is thus to that legislation alone that the conflict rules set out in Title II of the regulation, including Articles 13 and 14, refer.

13 Consequently, the reply to the first question should be that Regulation No 1408/71 contains no conflict rules concerning the legislation applicable to the employment relationship existing between worker and employer.

14 It should first be observed that the case which the national court has in mind is that of a worker employed on board a vessel flying the flag of a Member State and remunerated for his work by an undertaking whose registered office is in another Member State in whose territory the worker resides.

15 Under Article 14(2)(c) of Regulation No 1408/71, in the version in force at the material time in the main proceedings, the national social security legislation applicable in such a case is that of the Member State in which the undertaking has its registered office.

16 According to the national court the legislation applicable by virtue of that provision is the Belgian Law of 10 April 1971, mentioned above, on accidents at work. Article 76(1)(4) of that law makes admission to the social security scheme which it establishes subject to the condition that the vessel on board which the worker is employed is flying the Belgian flag. That condition thus has the effect of excluding from the application of that law a worker employed on board a vessel flying the flag of a Member State other than Belgium, even if the undertaking by which he is remunerated has its registered office in Belgium and he himself resides in that country.

17 Therefore, the second question raised by the national court must be understood as seeking to ascertain whether Article 14(2)(c) of Regulation No 1408/71, in the version in force in February 1980, must be interpreted as meaning that it has the effect of precluding the application to the persons covered by it or their beneficiaries of (a) a provision of the applicable legislation of a Member State under which admission to the social security scheme provided for is made subject to the condition that the vessel on board which the worker is employed is flying the flag of that Member State, and (b) any provision of the legislation of that Member State providing that a contract of employment is null and void, to the extent to which such provision prevents the conflict rule laid down in Article 14(2)(c) from being fully effective.

18 In that connection it should be pointed out that according to the case-law of the Court the provisions of Title II of Regulation No 1408/71, including Article 14, constitute a complete and uniform system of conflict rules (see in particular the judgment in Case 60/85 Luijten v Raad van Arbeid [1986] ECR 2365) and that those provisions are intended not only to prevent the simultaneous application of a number of national legislative systems and the complications which might ensue, as a result, but also to ensure that the persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation applicable to them. In particular, the conditions concerning the right of a person to become affiliated to a social security scheme may not have the effect of excluding from the scope of the legislation at issue persons to whom it applies pursuant to Regulation No 1408/71 (judgment in Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraphs 12 and 20).

19 Consequently, Article 14(2)(c) of Regulation No 1408/71 would be deprived of all effectiveness if the affiliation condition relating to the flag of the vessel imposed by the legislation of the Member State in which the undertaking remunerating the worker has its registered office could be applied against the persons covered by Article 14(2)(c).

20 The above interpretation also applies to provisions of national law concerning the nullity of a contract of employment. Those provisions may not have the effect of impeding the application of the conflict rules set out in Regulation No 1408/71.

21 Having regard to the foregoing considerations, the reply to the second question should be that Article 14(2)(c) of Regulation No 1408/71, in the version in force in February 1980, must be interpreted as meaning that it has the effect of precluding the application to the persons covered by it or to their beneficiaries of (a) a provision of the applicable legislation of a Member State under which admission to the social security scheme provided for is made subject to the condition that the vessel on board which the worker is employed is flying the flag of that Member State, and (b) any provision of the legislation of that Member State providing that a contract of employment is null and void, to the extent to which it prevents the conflict rule laid down in Article 14(2)(c) from being fully effective.

Costs

22 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Sixth Chamber),

in answer to the questions referred to it by the Hof van Cassatie of Belgium, by judgment of 18 June 1990, hereby rules:

1. Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and to members of their families moving within the Community contains no conflict rules concerning the legislation applicable to the employment relationship between worker and employer;

2. Article 14(2)(c) of Regulation (EEC) No 1408/71, in its version in force in February 1980, must be interpreted as meaning that it has the effect of precluding the application to the persons covered by it or to their beneficiaries of: (a) a provision of the applicable legislation of a Member State under which admission to the social security scheme provided for is made subject to the condition that the vessel on board which the worker is employed is flying the flag of that Member State and (b) any provision of the legislation of that Member State providing that a contract is null and void, to the extent to which such provision prevents the conflict rule laid down in Article 14(2)(c) aforesaid from being fully effective.