Avis juridique important

Judgment of the Court (Third Chamber) of 10 July 1986. - M. E. S. Luijten v Raad van Arbeid. - Reference for a preliminary ruling: Raad van Beroep 's-Hertogenbosch - Netherlands. - Social security for migrant workers - Family allowances. - Case 60/85. European Court reports 1986 Page 02365

Summary Parties Subject of the case Grounds Decision on costs Operative part

SOCIAL SECURITY FOR MIGRANT WORKERS - LEGISLATION APPLICABLE - SIMULTANEOUS APPLICATION OF MORE THAN ONE NATIONAL LEGISLATIVE SYSTEM - NOT POSSIBLE

( REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL , ART . 13 ( 2 ) ( B ), AS AMENDED BY REGULATION ( EEC ) NO 1390/81 )

THE EFFECT OF DETERMINING THAT A GIVEN MEMBER STATE ' S LEGISLATION IS THE LEGISLATION APPLICABLE TO A SELF-EMPLOYED PERSON PURSUANT TO ARTICLE 13 ( 2 ) ( B ) OF REGULATION

NO 1408/71 , AS AMENDED BY COUNCIL REGULATION NO 1390/81 , IS THAT ONLY THAT LEGISLATION IS APPLICABLE TO HIM .

IN CASE 60/85

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE RAAD VAN BEROEP ( SOCIAL SECURITY COURT ), ' S-HERTOGENBOSCH ( NETHERLANDS ), FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

M . E . S . VAN VERMOOLEN , NEE LUIJTEN ,

AND

RAAD VAN ARBEID ( LABOUR COUNCIL ), BREDA ,

ON THE INTERPRETATION OF THE PROVISIONS OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY , AS EXTENDED TO SELF-EMPLOYED PERSONS BY COUNCIL REGULATION ( EEC ) NO 1390/81 ( OFFICIAL JOURNAL 1981 , L 143 , P . 1 ),

2 THAT QUESTION AROSE IN A DISPUTE BETWEEN MRS VAN VERMOOLEN , NEE LUIJTEN , THE PLAINTIFF IN THE MAIN PROCEEDINGS , AND THE RAAD VAN ARBEID , BREDA , THE COMPETENT SOCIAL SECURITY INSTITUTION , THE DEFENDANT IN THE MAIN PROCEEDINGS . AS IS CLEAR FROM THE ORDER FOR REFERENCE AND THE DOCUMENTS BEFORE THE COURT , THE PLAINTIFF , WHO IS A NETHERLANDS NATIONAL , RESIDED IN THE NETHERLANDS WITH HER HUSBAND WHO , FROM JULY 1982 TO 1 NOVEMBER 1983 , RAN A RESTAURANT AS A SELF-EMPLOYED PERSON IN BELGIUM WHILST CONTINUING TO RESIDE IN THE NETHERLANDS . AFTER HER CHILD WAS BORN IN FEBRUARY 1983 , THE PLAINTIFF WAS PAID FAMILY ALLOWANCES IN RESPECT OF THE SECOND QUARTER OF 1983 BY THE DEFENDANT ; THE LATTER SUBSEQUENTLY DEMANDED REPAYMENT OF THOSE ALLOWANCES ON THE GROUND THAT THE PLAINTIFF WAS NOT INSURED UNDER THE ALGEMENE KINDERBIJSLAGWET ( GENERAL LAW ON FAMILY ALLOWANCES ) ON 1 APRIL 1983 . THE REASON GIVEN BY THE DEFENDANT WAS THAT THE PLAINTIFF ' S HUSBAND , WHO RESIDED IN THE NETHERLANDS , ALTHOUGH NOT EXCLUDED FROM INSURANCE UNDER THE ALGEMENE KINDERBIJSLAGWET , WAS AFFILIATED TO THE BELGIAN INSTITUT NATIONAL D ' ASSURANCES SOCIALES POUR TRAVAILLEURS INDEPENDANTS ( NATIONAL SOCIAL SECURITY INSTITUTION FOR SELF-EMPLOYED PERSONS ) AND WAS THEREFORE ENTITLED TO CLAIM FAMILY ALLOWANCES IN BELGIUM .

3 HAVING REGARD TO THE PROVISIONS OF THE RELEVANT NATIONAL LEGISLATION , THE RAAD VAN BEROEP CONSIDERED THAT THE ANSWER TO THE QUESTION WHETHER THE PLAINTIFF WAS WRONGLY PAID FAMILY ALLOWANCES FOR THE SECOND QUARTER OF 1983 DEPENDED ON WHETHER HER HUSBAND WAS INSURED UNDER THE ALGEMENE KINDERBIJSLAGWET ON 1 APRIL 1983 . IN THAT REGARD , THE RAAD VAN BEROEP FOUND THAT THE PLAINTIFF ' S HUSBAND WAS NOT EXCLUDED FROM INSURANCE UNDER THAT LAW BY ANY PROVISION OF NETHERLANDS LAW BUT THAT , BY VIRTUE OF ARTICLE 13 ( 1 ) IN CONJUNCTION WITH ARTICLE 13 ( 2 ) ( B ) OF REGULATION NO 1408/71 , ONLY THE BELGIAN LEGISLATION WAS APPLICABLE TO HIM .

4 IN THOSE CIRCUMSTANCES THE RAAD VAN BEROEP REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :

' WHERE THE LEGISLATION OF A GIVEN MEMBER STATE IS DETERMINED TO BE THE LEGISLATION APPLICABLE TO A SELF-EMPLOYED WORKER PURSUANT TO ARTICLE 13 ( 2 ) ( B ) OF REGULATION NO 1408/71 , DOES THIS MEAN THAT THE SELF-EMPLOYED WORKER CANNOT SIMULTANEOUSLY BE REGARDED , BY VIRTUE OF ANOTHER MEMBER STATE ' S NATIONAL LAW ALONE , AS INSURED UNDER THE LEGISLATION OF THAT OTHER MEMBER STATE CONCERNING FAMILY ALLOWANCES , WITH THE RESULT THAT THE OPERATION OF COMMUNITY LAW DEPRIVES HIM OR HIS SPOUSE OF FAMILY ALLOWANCES TO WHICH HE OR SHE IS ENTITLED UNDER THE NATIONAL LEGISLATION OF THAT OTHER MEMBER STATE ALONE?

'

7 THE NETHERLANDS GOVERNMENT THEREFORE MAINTAINS THAT THE EFFECT OF DETERMINING THAT A GIVEN MEMBER STATE ' S LEGISLATION IS THE LEGISLATION APPLICABLE TO A SELF-EMPLOYED PERSON ON THE BASIS OF ARTICLE 13 ( 2 ) ( B ) IS THAT THAT PERSON CANNOT SIMULTANEOUSLY BE REGARDED , BY VIRTUE OF ANOTHER MEMBER STATE ' S NATIONAL LAW ALONE , AS INSURED UNDER THE LEGISLATION OF THAT OTHER MEMBER STATE CONCERNING FAMILY ALLOWANCES .

8 THE COMMISSION REFERS TO THE PURPOSE OF THE PROVISIONS SET OUT IN TITLE II OF REGULATION NO 1408/71 , WHICH , IT EMPHASIZES , IS TO PREVENT MORE THAN ONE NATIONAL LEGISLATIVE SYSTEM FROM BEING APPLICABLE BY PRECLUDING THE SIMULTANEOUS APPLICATION OF A NATIONAL LEGISLATIVE SYSTEM OTHER THAN THAT DETERMINED BY THOSE PROVISIONS .

9 WITH REGARD TO THE QUESTION OF CONFLICTS BETWEEN RIGHTS ACQUIRED UNDER NATIONAL LAW AND THE RULES OF COMMUNITY LAW , THE COMMISSION EMPHASIZES THAT THE PRINCIPLE OF THE INVIOLABILITY OF RIGHTS ACQUIRED UNDER NATIONAL LAW HAS BEEN RECOGNIZED BY THE COURT AS APPLYING ONLY TO THE SUBSTANTIVE RULES GOVERNING COORDINATION WHICH ARE SET OUT IN TITLES I AND III OF REGULATION NO1408/71 . THE COMMISSION CONTENDS THAT NO CONFLICT CAN ARISE BETWEEN THE RULES OF COMMUNITY LAW AND NATIONALLY-ACQUIRED RIGHTS . SUCH A CONFLICT COULD ARISE ONLY IF THE NATIONAL LAW UNDER CONSIDERATION WERE APPLICABLE , AND THAT DEPENDS ON THE CONFLICT RULE ITSELF , WHICH IS THE RULE CONTAINED IN TITLE II OF REGULATION NO 1408/71 .

10 THE COMMISSION THEREFORE CONSIDERS THAT A SITUATION IN WHICH RIGHTS ACQUIRED UNDER THE NATIONAL LEGISLATION OF A MEMBER STATE ARE IMPAIRED COULD BE ENVISAGED ONLY IF THE LEGAL POSITION OF THE PERSON CONCERNED IN THE EVENT OF THE APPLICATION OF REGULATION NO 1408/71 WERE COMPARED WITH HIS LEGAL POSITION IN THE ABSENCE OF THAT REGULATION . IN THE COMMISSION ' S VIEW , THE COURT HAS NEVER TAKEN THAT APPROACH . REGULATION NO 1408/71 , WHICH WAS ADOPTED IN ORDER TO GIVE EFFECT TO ARTICLE 51 OF THE EEC TREATY , FORMS AN INTEGRAL PART OF THE BODY OF RULES WHICH , IN EACH MEMBER STATE , BRING TOGETHER PROVISIONS OF NATIONAL AND COMMUNITY LAW . ACCORDING TO THE COMMISSION , THE ONLY EFFECT OF THE COURT ' S CASE-LAW ON ' ACQUIRED RIGHTS ' IS THAT A PERSON WHO CAN AVAIL HIMSELF OF THE RIGHTS PROVIDED FOR BY NATIONAL LEGISLATION WITHOUT HAVING TO RELY ON COMMUNITY LAW ( FOR INSTANCE , WITHOUT RECOURSE TO AGGREGATION OR TO THE NEUTRALIZATION OF REQUIREMENTS RELATING TO NATIONALITY OR RESIDENCE ) MAY NOT BE DEPRIVED OF HIS RIGHTS BY THE OPERATION OF COMMUNITY LAW .

11 IN THE COMMISSION ' S VIEW , THEREFORE , IT FOLLOWS FROM ARTICLE 13 ( 1 ) OF REGULATION NO 1408/71 THAT WHERE , ACCORDING TO THE CRITERIA LAID DOWN BY THE COMMUNITY LEGISLATURE , THE LEGISLATION OF A MEMBER STATE IS HELD TO BE APPLICABLE , ANY CONCOMITANT APPLICATION OF THE LEGISLATION OF ANOTHER MEMBER STATE IS EXCLUDED .

COSTS

17 THE COSTS INCURRED BY THE NETHERLANDS GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE 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 ACTION 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 RAAD VAN BEROEP , ' S-HERTOGENBOSCH , BY ORDER OF 13 FEBRUARY 1985 , HEREBY RULES :

THE EFFECT OF DETERMINING THAT A GIVEN MEMBER STATE ' S LEGISLATION IS THE LEGISLATION APPLICABLE TO A SELF-EMPLOYED PERSON PURSUANT TO ARTICLE 13 ( 2 ) ( B ) OF REGULATION NO 1408/71 , AS AMENDED BY COUNCIL REGULATION NO 1390/81 , IS THAT ONLY THAT LEGISLATION IS APPLICABLE TO HIM .