Opinion of the Advocate General — ECLI:EU:C:2005:700
Date: 2005-11-17
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment Social security for migrant workers – Applicable legislation – Person simultaneously employed in one Member State and self-employed in another Member State (EC Treaty, Arts 48 and 52 (now, after amendment, Arts 39 EC and 43 EC); Council Regulation No 1408/71, Art. 14c(b), as amended by Regulation No 1606/98) As regards a person simultaneously employed in one Member State and self-employed in another Member State, Articles 48 and 52 of the Treaty (now, after amendment, Articles 39 EC and 43 EC) and Article 14c(b) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1606/98, must be interpreted as not precluding legislation of a Member State which includes, in the basis for calculating social security contributions, interest such as that paid by a company established in that Member State to a national of the first State resident in the second State and who is subject, under that regulation and taking into account the nature of his occupational activities, to the social security legislation of both those Member States. Even if the rule prohibiting the levy of double contributions, laid down under Article 14c(b) of Regulation No 1408/71, to the effect that each of the Member States concerned can levy contributions only on the part of the income obtained in its territory, applies not only to income from gainful employment and income from self-employed activity, but extends to all the income of persons falling within the provisions of that article, the fact that that regulation does not lay down any criterion connecting the income earned through interest payments to the Member State where the worker pursues an activity cannot in itself prevent that Member State from levying social security contributions in respect of that income where it is not subject to the levy of social contributions in the Member State in which the worker resides and pursues the other activity. In that regard, the Treaty offers no guarantee to a worker that extending his activities into more than one Member State or transferring them to another Member State will be neutral as regards social security. Given the disparities in the social security legislation of the Member States, to which, in the absence of harmonisation at Community level, it falls to determine the conditions governing the right or duty to be insured with a social security scheme, such an extension or transfer may be to the worker’s advantage in terms of social security or not, according to circumstance. It follows that, even where its application is less favourable, such legislation is still compatible with Articles 48 and 52 of the Treaty if it does not place the worker at a disadvantage as compared with those who pursue all their activities in the Member State where it applies or as compared with those who were already subject to it and if it does not simply result in the payment of social security contributions on which there is no return. (see paras 29-32, 34, 40, operative part)