Avis juridique important

Judgment of the Court (Third Chamber) of 24 March 1994. - Guido Van Poucke v Rijksinstituut voor de Sociale Verzekeringen der Zelfstandigen and Algemene Sociale Kas voor Zelfstandigen. - Reference for a preliminary ruling: Arbeidshof Gent - Belgium. - Social security for migrant workers - Determination of the legislation applicable. - Case C-71/93. European Court reports 1994 Page I-01101

Summary Parties Grounds Decision on costs Operative part

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1. Social security for migrant workers - Community rules - Scope ratione personae - Professional soldier on active service subject to the general insurance scheme for employed persons - Inclusion - Required cover limited by national legislation to one specific branch of social security - Immaterial

(Regulation No 1408/71, Art. 2(3))

2. Social security for migrant workers - Activities as a person "employed" within the meaning of Article 14c of Regulation No 1408/71 - Definition - Employment as a civil servant in a Member State of a person falling within the scope of the regulation - Inclusion

(EEC Treaty, Art. 48; Regulation No 1408/71 of the Council, Art. 14c)

3. Social security for migrant workers - Legislation applicable - Worker employed in one Member State but simultaneously self-employed in another Member State - Subject to the legislation of the first State - Required cover in respect of activities as a person "employed" limited to one specific branch of social security - No effect on application of the legislation concerning self-employed activities

(Regulation No 1408/71 of the Council, Art. 14c and d)

1. A professional soldier on active service in a Member State is a person covered by Regulation No 1408/71 if, under national law, he is subject to the medical care provisions of the general sickness and invalidity insurance scheme for employed persons.

It is immaterial that a person in that situation is subject to only one specific branch of social security; if the branch of social security in question is part of legislation to which the regulation applies within the meaning of Article 2(3), the person covered thereby is properly subject to that legislation, with the consequence that he falls within the scope ratione personae of the regulation

2. In the scheme of the Treaty civil servants are regarded as employed persons. On the one hand, the Community meaning of the term "worker" within the meaning of Article 48 of the Treaty must be defined in accordance with objective criteria which distinguish the employment relationship, the essential feature of which is that a person performs services for and under the direction of another person in return for which he receives remuneration. On the other hand, both the position in the Treaty and the wording of Article 48(4), which refers to employment in the public service in order to exclude it from its scope of application, without distinguishing between employment as civil servants and employment as other staff, show that civil servants are counted as employees or salaried workers.

It follows that employment as a civil servant of a person falling within the scope of Regulation No 1408/71 is an activity as a person "employed" within the meaning of Article 14c, which lays down special rules applicable to persons simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State.

3. A person who is simultaneously employed in one Member State and self-employed in another must, pursuant to Article 14c and d of Regulation No 1408/71 be subject, as a result of the latter activity, to the appropriate legislation of the first Member State under the same conditions as if he was self-employed there too. The fact that, in respect of his salaried employment, the legislation to which Regulation No 1408/71 is applicable is limited to certain branches of social security has no effect on the application of the legislation concerning the self-employed activity.

The provisions of Title II of the regulation, of which the said article forms part, constitute a complete and uniform system of conflict rules the aim of which is to ensure that workers moving within the Community shall be subject to the social security scheme of only Member State, in order to prevent more than one legislative system from being applicable and to avoid the complications which may result from that situation.

In Case C-71/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Arbeidshof, Ghent, for a preliminary ruling in the proceedings pending before that court between

Guido Van Poucke

and

(1) Rijksinstituut voor de Sociale Verzekeringen der Zelfstandigen

(2) Algemene Sociale Kas voor Zelfstandingen

on the interpretation of Articles 1, 2, 13 and 14c of Regulation No 1408/71 (EEC) of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the codified version annexed to Council Regulation (EEC) No 2001/83 of 2 June 1983 (Official Journal 1983 L 230, p. 6),

THE COURT (Third Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, F. Grévisse (Rapporteur) and M. Zuleeg, Judges,

Advocate General: C. Gulmann,

Registrar: H. A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

- the Commission of the European Communities, by Maria Patakia and Pieter Van Nuffel, members of its Legal Service, acting as Agents,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 2 February 1994,

gives the following

Judgment

1 By judgment of 9 March 1993, which was received at the Court on 16 March 1993, the Arbeidshof (Higher Labour Court), Ghent, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty several questions concerning the interpretation of Articles 1, 2, 13 and 14c of Regulation No 1408/71 (EEC) of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the codified version annexed to Council Regulation (EEC) No 2001/83 of 2 June 1983 (Official Journal 1983 L 230, p. 6) (hereinafter referred to as "the regulation").

2 The questions were raised in the course of proceedings between Guido Van Poucke and the Rijksinstituut voor de Sociale Verzekeringen der Zelfstandigen (National Institution for the Social Insurance of Self-Employed Persons) and the Algemene Sociale Kas voor Zelfstandigen (General Social Fund for Self-Employed Persons) concerning contributions paid by the applicant to the social insurance scheme for self-employed persons in Belgium.

3 Mr Van Poucke pursues a twofold professional activity, as a military doctor in Belgium and as a self-employed doctor in the Netherlands. As a consequence of the latter activity he was asked to pay contributions to the Belgian institutions for the social insurance of self-employed persons.

4 Mr Van Poucke disputed that he was subject to the insurance rules for self-employed workers in Belgium and brought proceedings before the Arbeidsrechtbank (Labour Court), Bruges, for reimbursement of the sums paid in that respect. That court dismissed his claim and he subsequently appealed to the Arbeidshof, Ghent.

5 The Arbeidshof, Ghent, considered that the case turned on the interpretation of the regulation and decided to stay proceedings and refer the following questions to the Court for a preliminary ruling:

"1.(a) Must Article 1(a)(i) and Article 2(3) of Regulation No 1408/71 be interpreted as meaning that a professional soldier on active service in Belgium, to whom the medical care provisions of the compulsory sickness and invalidity insurance applicable to employed persons have been extended, ranks among the persons covered by the regulation?

(b) If so, does the Court consider that it may be inferred from the fact that a specific branch of social security, namely medical care under the sickness and invalidity insurance, is governed solely as regards its administration by legislation of a Member State to which Regulation No 1408/71 applies, that persons referred to in Article 2(3) of Regulation No 1408/71 are or have been in fact subject to the legislation of a Member State to which that regulation applies, as provided for in Article 2(3) aforesaid?

(c) Should the reply to questions (a) and (b) be in the affirmative, must the word 'where' in Article 2(3) of Regulation No 1408/71 be interpreted as meaning that the regulation is applicable to the persons referred to therein only as regards the legislation of a Member State to which that regulation applies?

2. Must Article 13(2)(d) and Article 14c of Regulation No 1408/71 be interpreted as meaning that the employment as a civil servant of a person falling within the scope of the regulation is to be treated as activities as a person 'employed' for the purposes of the application of Article 14c?

3. Must Title II of Regulation No 1408/71, including Article 14c thereof, be interpreted as meaning that the fact that a person who ranks among the persons covered by the regulation in respect of his activities as a person 'employed' , on account of which he is insured only for a single risk (in this case medical care under the sickness and invalidity insurance) is obliged with regard to his activities as a self-employed person to pay insurance premiums only in respect of the same risk, although the applicable national legislation provides for compulsory and indivisible insurance for several risks?"

The first question

6 In Question 1(a) the national court asks whether a professional soldier on active service in Belgium to whom, under national law, the medical care provisions of the compulsory sickness and invalidity insurance applicable to employed persons have been extended, ranks among the persons covered by the regulation.

7 The persons covered by the regulation are set out in Article 2. According to Article 2(1) the regulation is to apply to "employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States ...". According to Article 2(3), the regulation is to apply to "civil servants and to persons who, in accordance with the legislation applicable, are treated as such, where they are or have been subject to the legislation of a Member State to which this Regulation applies."

8 The matters covered by the regulation are set out in Article 4. Article 4(1) lists the different branches of social security covered. They include sickness benefits and invalidity benefits. Article 4(4) specifies that the regulation is not to apply to "special schemes for civil servants and persons treated as such."

9 In this case it appears from the order for reference that the person concerned is subject to the medical care provisions of the compulsory Belgian sickness and invalidity insurance scheme for employed persons, which was extended, pursuant to the Royal Decree of 28 November 1969, to civil servants and members of the armed forces posted in Belgium. Legislation of that type is legislation to which the regulation applies within the meaning of Article 2(3). In so far as persons in the situation described by the national court are subject to such legislation, they are thus persons covered by the regulation.

10 In Question 1(b) the national court is asking, however, whether the persons referred to in Article 2(3) of the regulation are in fact subject to the legislation applicable within the meaning of that article if they are subject to only one specific branch of social security.

11 The fact that a person in the situation described in the order for reference is subject to only one specific branch of social security is not such as to modify the reply to Question 1(a). If the branch of social security in question is part of legislation to which the regulation applies within the meaning of Article 2(3), the person covered thereby is properly subject to that legislation.

12 In Question 1(c) the national court is querying the exact scope of the words "where" in Article 2(3) of the regulation.

13 Article 2(3) of the regulation, the wording of which was set out in paragraph 7 above, is a general provision defining persons covered by the regulation. It means simply that civil servants and persons who are treated as such fall within its scope of application if they are or have been subject to legislation to which the regulation applies.

14 The reply to the first question must therefore be that a professional soldier on active service in Belgium is a person covered by the regulation if, under national law, he is subject to the medical care provisions of the general sickness and invalidity insurance scheme for employed persons.

The second question

15 In its second question the national court asks whether employment as a civil servant of a person falling within the scope of the regulation and referred to in Article 13(2)(d) of the regulation is to be treated as activities as a person employed within the meaning of Article 14c, which lays down the special rules applicable to persons simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State.

16 This question calls for a reply in the affirmative.

18 It is true that Article 13(2) of the regulation, which lays down general rules for determining the legislation applicable, mentions civil servants in paragraph (d), whereas persons employed are mentioned in paragraph (a). It should, however, be noted that the two initial paragraphs of Article 13(2), (a) and (b), concern respectively persons employed and persons self-employed, whereas the subsequent paragraphs concern certain specific categories of persons who can also be engaged in either form of employment, which is the case, for instance, of seamen referred to in (c). Thus the fact that civil servants are mentioned separately in Article 13(2)(d) does not deprive them of their status as employed persons for the purposes of the regulation' s application.

19 The reply to the second question must therefore be that employment as a civil servant of a person falling within the scope of the regulation is an activity as a person "employed" within the meaning of Article 14c, which lays down special rules applicable to persons simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State.

The third question

20 In its third question the national court asks whether application of the legislation laid down in Article 14c(1)(a) must be restricted, as far as self-employed activities are concerned, solely to branches of social security in respect of which the person concerned is covered by the regulation with regard to his activity as a person "employed".

21 This question calls for a reply in the negative.

23 Article 14c(1)(a) of the regulation provides that a person who is employed simultaneously in the territory of one Member State and self-employed in the territory of another Member State shall be subject, with certain exceptions, to the legislation of the Member State in the territory of which he is engaged in paid employment.

24 Furthermore, Article 14d(1) specifies that the person thus referred to is to be treated, for the purposes of the application of the legislation laid down in accordance with the provisions of the regulation, as if he pursued all his professional activity or activities in the territory of the Member State concerned.

25 Consequently, a person in the situation described in the order for reference who is simultaneously employed in Belgium and self-employed in the Netherlands must be subject, as a result of the latter activity, to the appropriate Belgian legislation under the same conditions as if he was self-employed in Belgium. The fact that, in respect of his paid employment, the legislation to which the regulation is applicable is limited to certain branches of social security has no effect on the application of the legislation concerning the self-employed activity.

26 The reply to the third question must therefore be that the legislation laid down in Article 14(c)(1)(a) of the regulation must be applied, as far as the self-employed activity is concerned, in the same way as if that activity was pursued in the Member State concerned.

Costs

27 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 (Third Chamber),

in answer to the questions referred to it by the Arbeidshof, Ghent, by judgment of 9 March 1993, hereby rules:

1. A professional soldier on active service in Belgium is a person covered by Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community if, under national law, he is subject to the medical care provisions of the general sickness and invalidity insurance scheme for employed persons;

2. Employment as a civil servant of a person falling within the scope of the regulation is an activity as a person "employed" within the meaning of Article 14c, which lays down special rules applicable to persons simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State;

3. The legislation laid down in Article 14(c)(1)(a) of the regulation must be applied, as far as the self-employed activity is concerned, in the same way as if that activity was pursued in the Member State concerned.