Opinion of the Advocate General — ECLI:EU:C:2011:562
Date: 2011-09-08
Language of the case: Dutch
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary, the Netherlands legislature has chosen, even within a geographical area that is clearly unusual, a basis of differentiation which is highly suspect from the point of view of the free movement of workers. (29) Moreover, it has done so in a legislative context in which work carried out in the North Sea drilling industries is deemed even by national law to be carried out within Netherlands territory, as Netherlands law relating to employment contracts is applicable (Article 2 WAMN). In short, this is a context in which the links of the employment relationship with Netherlands law are particularly strong and thus there is no justification for an additional requirement, such as the residence of the worker, which constitutes an obstacle to the freedom of movement of employees within the territory of the Union. 77. In my view, the link of the employment relationship under consideration is not merely sufficient — as the Court of Justice found in the case of work carried out abroad for employers who were resident in the Member State (30) — but more than sufficient, given that in this case the continental shelf is functionally equivalent to State territory. If territory is defined as the space where the sovereign power of the State manifests itself through the exercise of the competences legitimately vested in it under international law, then the continental shelf adjacent to its coast is the territory of the Member State within this meaning, that is to say, it is the space over which the Member State exercises exclusive competence in relation to, in this case, employment relationships entered into for the purpose of the economic exploitation of such space. Furthermore, as State ‘territory’ within that precise meaning, it is also EU ‘territory’ for the purposes of the application of EU law. 78. Given that correlation, there is, in my view, no alternative but to apply the settled case-law on Regulation No 1408/71. Consequently, in the words of the judgment in Kits van Heijningen, (31) it should be remembered that when the Member States lay down the conditions creating the right to become affiliated to a social security scheme, they cannot ‘[exclude] from the scope of the legislation … persons to whom it applies pursuant to Regulation No 1408/71’. 79. Thus, on that occasion it was held that ‘Article 13(2)(a) of Regulation No 1408/71 expressly provides that a person employed in the territory of one Member State is to be subject to the legislation of that State “even if he resides in the territory of another Member State”. That provision would have no practical effect if the residence condition laid down by the legislation of the Member State in whose territory the person is employed for affiliation to the insurance scheme which it establishes could be relied on against the persons referred to in Article 13(2)(a). With regard to those persons, the effect of Article 13(2)(a) is to replace the residence condition with a condition based on employment in the territory of the Member State concerned’. VII – Conclusion 80. In the light of the foregoing, I propose that the Court reply as follows to the question submitted to it by the Rechtbank Amsterdam: The rules forming part of European Community law which are designed to bring about free movement for workers, in particular the rules set out in Titles I and II of Regulation (EEC) No 1408/71 as well as in Articles 39 and 299 of the EC Treaty (now respectively Articles 45 TFEU and 52 TEU, in conjunction with Article 355 TFEU) preclude an employee working outside Netherlands territory, as strictly defined, on a fixed installation on the Netherlands section of the continental shelf for an employer established in the Netherlands from being in a position in which he is not insured under national compulsory employee insurance solely on the ground that he is not resident in the Netherlands but in another Member State, even if he can avail himself of the option to take out voluntary insurance. 1– Original language: Spanish. 2– Case 237/83 Prodest [1984] ECR 3153. 3– Case C‑60/93 Aldewereld [1994] ECR I‑2991. 4– An area which ‘comprises the seabed and subsoil of the submarine areas that extend beyond [the] territorial sea throughout the natural prolongation of [the] land territory [of a coastal State] to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance’ (Article 76(1) of the United Nations Convention on the Law of the Sea (‘UNCLOS’), which was signed in Montego Bay, Jamaica, on 10 December 1982, entered into force on 16 November 1994, was ratified by the Netherlands on 28 June 1996 and approved on behalf of the European Community by Council Decision 98/392/EC of 23 March 1998 (OJ 1998 L 179, p. 1)). 5– Done at Geneva on 29 April 1958 and in force since 10 June 1964 (United Nations, Treaty Series, vol. 499, p. 311). 6– 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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997, L 28, p. 1), as amended by Council Regulation (EC) No 1606/98 of 29 June 1998 (OJ 1998 L 209, p. 1). 7– Case C‑37/00 Weber [2002] ECR I‑2013. 8– Case C‑141/10 Commission v Netherlands; case pending (OJ 2010 C 161, p. 19). 9– Case 9/88 Lopes da Veiga [1989] ECR 2989. 10– Joined Cases C‑396/05, C‑419/05 and C‑450/05 Habelt [2007] ECR I-11895, paragraph 122. 11– Which scope, pursuant to Article 52(2) TEU, ‘is specified in Article 355 of the Treaty on the Functioning of the European Union’. This specification is not relevant for the present purposes. 12– Lenaerts, K. and van Nuffel, P., European Union Law, 3rd edition, Sweet & Maxwell, London, 2011 (12-006). 13– Under international law, a boundary established by treaty ‘achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary’ (judgment of the International Court of Justice of 3 February 1994, Libyan Arab Jamahiriya/Chad (I.C.J.Reports of judgments, advisory opinions and orders 1994, p. 37). That boundaries have greater permanence than the treaties which establish them shows the extraordinary importance of territorial limits as a factor in the stability of the international community. 14– See, generally, González Campos, J.D., Sánchez Rodríguez, L.I., and Andrés Sáenz de Santa María, P.A., Curso de Derecho Internacional Público, 4th revised edition, Thomson-Civitas, Cizur Menor, 2008. 15– The belt of sea adjacent to the coast, whose breadth must not exceed 12 nautical miles, measured from baselines determined in accordance with UNCLOS (Articles 2 and 3 UNCLOS). 16– Case C‑286/90 Poulsen [1992] ECR I‑6019, paragraph 25. 17– These freedoms are listed in Article 87 UNCLOS and belong to ‘all States, whether coastal or land-locked’: ‘(a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines ...; (d) freedom to construct artificial islands and other installations permitted under international law …; (e) freedom of fishing …; (f) freedom of scientific research …’. 18– By virtue of Article 89 UNCLOS ‘[n]o State may validly purport to subject any part of the high seas to its sovereignty’. As for ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’, which make up the ‘Area’ defined and regulated by UNCLOS, this, together with its resources, is stated to be the common heritage of mankind (Article 136 UNCLOS), and no claim or exercise of sovereignty or sovereign rights on the part of any State is permitted (Article 137(1) UNCLOS). 19– Which ‘shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured’ (Article 57 UNCLOS). 20– And which, by virtue of Article 76(1) UNCLOS, ‘comprises the seabed and subsoil of the submarine areas that extend beyond [the] territorial sea throughout the [natural] prolongation of [the] land territory [of the coastal State] to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance’. 21– Defined as ‘the mineral and other non-living resources of the seabed and subsoil ...’ (Article 77(4) UNCLOS). 22– ‘… in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State’ (Article 77(2) UNCLOS). 23– As the International Court of Justice has stated, they are rights which exist ipso facto and ab initio, by virtue of the sovereignty of the State, and as an extension of it for the purpose of exploring the seabed and exploiting its resources (Judgment of 20 February 1969, North Sea Continental Shelf, I.C.J. Reports 1969, p. 3, paragraph 19). 24– The fact that the history of State power in the modern age is essentially that of the progressive imposition of territorial power means that we instinctively associate the area of exercise of State power with the territory over which a State can lawfully exercise its sovereignty (see, generally, Hespanha, A. M., ‘El espacio político’, La gracia del Derecho. Economía de la cultura en la Edad Media, Centro de Estudios Políticos y Constitucionales, Madrid, 1993, p. 85 et seq.). It is true that the area of exercise is basically a territorial area, but it is not limited to territory. In the context of international law, the power of a State can legitimately extend beyond its territory, in the same way that, vice versa, the advent of an emergency gives the international community a certain right to interfere in the affairs of a State on humanitarian grounds, which also leads us to question the traditional idea that a State has exclusive rights to exercise its competences in its own territory (Liakopoulos, D., L’ingerenza umanitaria nel Diritto internazionale e comunitario, Cedam, Padua, 2007). Both of these phenomena demonstrate a breakdown in the until recently almost perfect match of territory in terms of a physical space, on the one hand, and the area of exercise of sovereignty on the other. In reality, however, this match was the result of the historical development of the modern State and it is therefore a phenomenon which is more in the nature of a contingent truth than a necessary one. That aside, in terms of necessity, it is true that sovereignty, as a characteristic of a legal order, requires an area of exercise for the legal authority which it characterises. That legal authority, by definition, results in the creation of legal rules whose effectiveness must depend on the ability of whoever exercises such authority to impose their mandates. The fact that this ability is seen to be effective mainly within the confines of a physical territory does not mean that it cannot lay claim to (and achieve) ‘extraterritorial’ effectiveness. Indeed, as an expression of what ought to be (the sollen), what is (the sein) does not represent either the basis for the existence of a legal order or the limits of its aspirations, which are, by definition, always ideals, but only its subject-matter, being the behaviours sought to be regulated. Consequently, the fact that such regulation is effective only within the boundaries of a territory does not mean that it is only legally valid within them. This is not to say that we should forget that ‘territoriality is not a special component of State power, but only a condition and a characteristic of that power’ (Carré de Malberg, R., Contribution à la théorie générale de l´État, I, Sirey, Paris, 1920, p. 4). Evidence that this is more than just a theoretical debate is to be found in the problems of State enforcement of, for example, domestic legislation on gaming in the face of the impact of the internet. Advocate General Mengozzi referred to this problem in his Opinion of 4 March 2010 in Joined Cases C‑316/07, C‑358/07, C‑359/07, C‑360/07, C‑409/07 and C‑410/07 Markus Stoß [2010] ECR I‑8069, stating at point 79 that ‘the difficulties that a State may encounter in securing compliance with national law are not relevant with regard to judging its compatibility with Community law. A restriction laid down by national law is in itself either compatible or incompatible with the Treaty and the ease with which it is possible to act contrary to national rules is irrelevant in that connection …’. 25– OJ 1992 L 206, p. 7. 26– Case C‑6/04 Commission v United Kingdom [2005] ECR I-9017, paragraph 117. This approach had been taken even before this, in Joined Cases 3/76, 4/76 and 6/76 Kramer and others [1976] ECR 1279, paragraphs 30 to 33, where it had been stated that a particular authority of the Community ratione materiae extended, ‘in so far as the Member States have similar authority under public international law’ (paragraph 31), to fishing on the high seas. On EU law and maritime spaces in general, see Michael, M., L´applicabilité du Traité instituant la CEE. et du Droit dérivé au plateau continental des États membres, Librairie Général de Droit et de Jurisprudence, Paris, 1984, and Blanquet, M. and de Grove-Valdeyron, N., ‘Zones côtières et Droit Communautaire’, Revue Juridique de l´Environnement, special 2001 edition, pp. 53 to 84. More specifically, see Jarass, H. D., Naturschutz in der Ausschließlichen Wirtschaftszone, Nomos, Baden-Baden, 2002, and Czybulka, D., ‘Die Anwendung der Umwelthaftungsrichtlinie in der Ausschließlichen Wirtschaftszone und auf dem Festlandsockel’, Natur und Recht (2008) 30, pp. 304 to 311. 27– Case C‑227/03 van Pommeren-Bourgondiën [2005] ECR I‑6101, paragraph 33. 28– Case C‑282/91 Bestuur van de Sociale Verzekeringsbank [1993] ECR I‑1221, paragraph 16. 29– This suspect condition is one which I also referred to, in another context, in my Opinion in Case C‑503/09 Stewart [2011] ECR I‑6497, at point 36, and which is relevant in the case at issue, even though Mr Salemink has Dutch nationality. The fact is that the national legislation mentioned by the Rechtbank Amsterdam affects mainly foreign workers, to a large extent. As the Commission has stated, at the present time there is even a pending action against the Kingdom of the Netherlands under Article 258 TFEU (Case C‑141/10) which seeks to establish that this Member State has failed to comply with its obligations to the Union by refusing to pay certain social security benefits to nationals of other Member States who, like Mr Salemink, work on drilling platforms located on the Netherlands continental shelf and are not resident in the Netherlands. 30– See, for example, Habelt, paragraph 122. 31– Case C‑2/89 Kits van Heijningen [1990] ECR I‑1755, paragraphs 20 and 21.