Opinion of the Advocate General — ECLI:EU:C:2000:583
Date: 2000-10-24
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Social security for migrant workers
Procedure: Action for failure to fulfil obligations - unfounded
Origin: Germany

Summary of the Judgment 
1. Social security for migrant workers — Equal treatment —- National legislation 
providing for the collection of a contribution from undertakings marketing the work 
of artists and journalists, calculated on the basis of the remuneration paid to the 
latter — Account taken of remuneration paid to artists and journalists subject to the 
legislation of another Member State — Permissible 
(EC Treaty, Arts 51, 52 and/or 59 (now, after amendment, Articles 42 EC, 43 EC and/ 
or 49 EC); Council Regulation No 1408/71, Arts 13(1) and (2)(b) and 14a(2)) 
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SUMMARY — CASE C-68/99 
2. Social security for migrant workers — Equal treatment — National legislation 
providing for the collection of a contribution from undertakings marketing the work 
of artists and journalists, calculated on the basis of the remuneration paid to the 
latter — Account taken of remuneration paid to artists and journalists subject to the 
legislation of another Member State — Permissible 
(Council Regulation No 1408/71) 
3. Actions against Member States for failure to fulfil obligations — Examination by the 
Court of the merits — Situation to be taken into consideration — Failure to comply 
with a national provision — Not permissible — Limits — Proof of failure to fulfil 
obligations — Burden of proof on Commission 
(EC Treaty, Art. 169 (now Article 226 EC)) 
1. A Member State which collects a 
contribution intended to cover part of 
the funding for the social security 
scheme for self-employed artists and 
journalists, paid by the heads of press 
undertakings and other publishing 
houses and press agencies, the basis of 
assessment of which is composed of the 
remuneration relating to work or ser­
vices paid to artists or journalists, even 
where the latter have their habitual 
residence and work also in another 
Member State and are not subject to 
the social security legislation of the 
State levying the contribution does not 
fail to fulfil its obligations under Arti­
cles 13(1) and (2)(b) and the first 
sentence of 14a(2) of Regulation 
No 1408/71 and Articles 51, 52 and/ 
or 59 of the Treaty (now, after amend­
ment, Articles 42 EC, 43 EC and/or 49 
EC), since such a contribution does not 
affect the artists and journalists them­
selves but the undertakings which mar­
ket their work and the latter are not 
entitled to pass on the costs arising 
therefrom to the remuneration they pay 
artists and journalists. Such a contribu­
tion does not infringe the rule that the 
social security legislation of only one 
Member State must be applied to 
workers moving within the Commu­
nity, laid down in Article 13 of Reg­
ulation No 1408/71, and the rule laid 
down in Article 14a of the same reg­
ulation, according to which a person 
normally self-employed in the territory 
of two or more Member States is 
subject to the legislation of the Mem­
ber State in whose territory he resides if 
he pursues any part of his activity in 
the territory of that Member State. 
(see paras 26, 28, 32, 40-41, 50) 
2. National rules providing for the collec­
tion of a contribution from undertak­
ings marketing the work of artists and 
journalists, calculated on the basis of 
the remuneration paid to them, may, 
indeed depending on the level of per­
sonal contributions borne by self-
employed artists and journalists under 
the various legislative systems to which 
they are subject, lead, in certain cases, 
to a situation where, for the same 
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COMMISSION V GERMANY 
remuneration offered by the undertak­
ing using the services of various artists 
and journalists in a Member State, the 
final level of remuneration, after the 
levying of the aforementioned contri­
butions, is less for an artist or journalist 
falling within the scope of a scheme 
other than that established by the 
legislation of that Member State than 
for an artist or journalist insured under 
that legislation. However, such a situa­
tion is inherent in the mechanism of 
straightforward co-ordination resulting 
from Regulation No 1408/71, which 
leaves the Member States competent to 
determine their own social security 
schemes and, in particular, to set the 
level of the contributions required of 
workers and economic operators, while 
providing in certain cases that a worker 
working in a Member State falls under 
the social security legislation of 
another Member State. 
(see para. 29) 
3. In proceedings under Article 169 of the 
Treaty (now Article 226 EC) for failure 
to fulfil obligations, the question of 
whether national legislation complies 
with Community law cannot be deter­
mined on the assumption that that 
legislation is not complied with. Only 
established conduct on the part of the 
public authorities showing that that 
legislation does not in reality constitute 
the rule applied could provide grounds 
for departing, in the examination of 
such an action, from the national 
provisions in question and examining 
a practice diverging from them. It is 
incumbent upon the Commission to 
prove the existence of the alleged 
infringement and to place before the 
Court the information needed to enable 
it to determine whether there is such an 
infringement. 
(see paras 37-38) 
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