61984CJ0300_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 300/84
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE RAAD VAN BEROEP ( SOCIAL SECURITY COURT ), UTRECHT, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
A . J . M . VAN ROOSMALEN, OF POSTEL ( BELGIUM )
AND
BESTUUR VAN DE BEDRIJFSVERENIGING VOOR DE GEZONDHEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN ( ADMINISTRATION OF THE PROFESSIONAL ASSOCIATION FOR HEALTH, SPIRITUAL AND SOCIAL WORK ), ZEIST ( NETHERLANDS )
Subject of the case
ON THE INTERPRETATION OF ARTICLES 52 AND 53 OF THE EEC TREATY, ARTICLES 1 AND 2 OF REGULATION 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 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND ARTICLE 2 ( 4 ) OF COUNCIL REGULATION NO 1390/81 OF 12 MAY 1981 EXTENDING REGULATION NO 1408/71 TO SELF-EMPLOYED PERSONS AND THEIR FAMILIES ( OFFICIAL JOURNAL 1981, L 143, P . 1 ),
Grounds
1 BY ORDER OF 11 DECEMBER 1984, WHICH WAS RECEIVED AT THE COURT ON 19 DECEMBER 1984, THE RAAD VAN BEROEP, UTRECHT, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY SIX QUESTIONS ON THE INTERPRETATION OF ARTICLES 52 AND 53 OF THE TREATY, AS WELL AS CERTAIN PROVISIONS OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ON THEAPPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF COUNCIL REGULATION NO 1390/81 OF 12 MAY 1981 EXTENDING REGULATION NO 1408/71 TO SELF-EMPLOYED PERSONS AND THEIR FAMILIES ( OFFICIAL JOURNAL, L 143, P . 1 ).
2 THOSE QUESTIONS AROSE IN PROCEEDINGS BETWEEN A . J . M . VAN ROOSMALEN, PLAINTIFF, AND THE BESTUUR VAN DE BEDRIJFSVERENIGING VOOR DE GEZONDHEID, GEESTELIJKE EN MAATSCHAPPELIJKE BELANGEN, ZEIST ( NETHERLANDS ), DEFENDANT, CONCERNING THE REFUSAL OF THE LATTER TO AWARD THE PLAINTIFF AN INVALIDITY PENSION UNDER THE ALGEMENE ARBEIDSONGESCHIKTHEIDSWET ( GENERAL LAW ON INCAPACITY FOR WORK, HEREINAFTER REFERRED TO AS ' THE LAW ON INCAPACITY ' ) ( STAATSBLAD 1975, P . 674 ).
3 AS CAN BE SEEN FROM THE ORDER FOR REFERENCE, THE PLAINTIFF, A ROMAN CATHOLIC PRIEST BELONGING TO THE PREMONSTRATENSIAN ( NORBERTINE ) ORDER, IS OF NETHERLANDS NATIONALITY AND COMES FROM THE NETHERLANDS MUNICIPALITY OF OOST-, WEST- EN MIDDELBEERS, IN WHICH HE LIVED UNTIL DECEMBER 1945 . HE THEN WENT TO LIVE IN POSTEL ( BELGIUM ), SITUATED IMMEDIATELY ON THE OTHER SIDE OF THE FRONTIER BETWEEN THE NETHERLANDS AND BELGIUM, IN ORDER TO PURSUE HIS STUDIES IN A MONASTERY BELONGING TO HIS ORDER AND WAS THEREFORE REMOVED FROM THE REGISTER OF INHABITANTS OF OOST-, WEST- EN MIDDELBEERS . BETWEEN 1955 AND 1980, HE WAS A MISSIONARY IN THE BELGIAN CONGO, WHICH IN 1960 BECAME ZAIRE .
4 WHILST ON LEAVE IN THE NETHERLANDS IN 1977 AND 1980, THE PLAINTIFF AGAIN HAD HIS NAME ENTERED IN THE REGISTER OF INHABITANTS FOR OOST-, WEST- ENMIDDELBEERS . IT SHOULD BE POINTED OUT THAT DURING HIS STAY IN ZAIRE, THE PLAINTIFF WAS NOT SUBJECT TO INCOME TAX IN THE NETHERLANDS BUT WAS SUBJECT TO IT DURING THE PERIODS SPENT ON LEAVE IN THE NETHERLANDS IN RESPECT OF BENEFITS PAID TO HIM UNDER THE ALGEMENE BIJSTANDSWET ( GENERAL LAW ON ASSISTANCE ) ( STAATSBLAD 1963, P . 284 ).
5 IN 1977, WHILST ON LEAVE IN OOST-WEST-EN-MIDDELBEERS, THE PLAINTIFF REGISTERED FOR THE VOLUNTARY INSURANCE INTRODUCED FOR PERSONS PURSUING AN ACTIVITY IN A DEVELOPING COUNTRY BY ARTICLE 77 OF THE LAW ON INCAPACITY, WHICH CAME INTO FORCE ON 1 OCTOBER 1976 . UNDER THAT LAW, ALL PERSONS RESIDING IN THE EUROPEAN TERRITORY OF THE KINGDOM OF THE NETHERLANDS ARE IN PRINCIPLE INSURED . HOWEVER, ARTICLE 77 PROVIDES THAT PERSONS FORMERLY INSURED, AND ALSO PERSONS WHO RESIDED IN THE NETHERLANDS BEFORE 1 OCTOBER 1976 AND AFTER REACHING THE AGE OF 15 YEARS, ARE AUTHORIZED TO PAY CONTRIBUTIONS IN RESPECT OF PERIODS IN WHICH THEY ARE UNINSURED, IF THEY LEAVE TO PURSUE AN ACTIVITY IN A DEVELOPING COUNTRY . ZAIRE IS REGARDED AS A DEVELOPING COUNTRY . ACCORDING TO ARTICLE 13 OF THE ROYAL DECREE OF 19 NOVEMBER 1976 ( STAATSBLAD, P . 622 ), IMPLEMENTING ARTICLE 77 OF THE LAW ON INCAPACITY, THE RIGHT TO PAY VOLUNTARY INSURANCE CONTRIBUTIONS UNDER THE LAW ON INCAPACITY ALSO APPLIES TO PERSONS WHO WERE ALREADY PURSUING AN ACTIVITY IN A DEVELOPING COUNTRY ON 1 OCTOBER 1976 AND WHO RESIDED IN THE NETHERLANDS AFTER THE AGE OF 15 YEARS .
6 THE PLAINTIFF CONTRACTED AN ILLNESS IN ZAIRE WHICH LEFT HIM INCAPACITATED FOR WORK AND RETURNED IN MARCH 1981 TO OOST-, WEST- EN MIDDELBEERS, WHEREUPON HE RECEIVED FROM THE DEFENDANT INVALIDITY BENEFITS UNDER THE LAW ON INCAPACITY WITH EFFECT FROM 12 JANUARY 1982 . HOWEVER, WHEN THE DEFENDANT BECAME AWARE THAT THE PLAINTIFF HAD SETTLED IN POSTEL ON A PERMANENT BASIS ON 2 JULY 1982, IT SUSPENDED, BY A DECISION OF 8 DECEMBER 1982, PAYMENT OF THOSE BENEFITS WITH EFFECT FROM 1 DECEMBER 1982 ON THE GROUND THAT THE PLAINTIFF HAD NOT FULFILLED THE RESIDENCE REQUIREMENT LAID DOWN IN ARTICLE 10 OF THE ABOVEMENTIONED ROYAL DECREE OF 19 NOVEMBER 1976 .
7 THAT PROVISION READS AS FOLLOWS :
' 1 . NOTWITHSTANDING ARTICLE 6 OF THIS LAW, A PERSON WHO IS REGARDED AS INSURED SHALL BECOME ENTITLED TO INVALIDITY BENEFITS ONLY AFTER HE HAS BEEN INCAPACITATED FOR WORK IN THE NETHERLANDS FOR A CONTINUOUS PERIOD OF 52 WEEKS AND IF THE INCAPACITY FOR WORK CONTINUES AFTER THE END OF THAT PERIOD .
2 . IF IT CAN BE ESTABLISHED TO THE SATISFACTION OF THE PROFESSIONAL AND TRADE ASSOCIATION THAT THE PERSON REGARDED AS INSURED BECAME INCAPACITATED FOR WORK AT A DATE PRIOR TO THAT ON WHICH HE RETURNED TO THE NETHERLANDS, THAT PERSON IS ENTITLED TO INVALIDITY BENEFITS AFTER HE HAS BEEN INCAPACITATED FOR WORK FOR A CONTINUOUS PERIOD OF 52 WEEKS SINCE THAT DATE, PROVIDED THAT THE INCAPACITY FOR WORK CONTINUES AFTER THE END OF THAT PERIOD ; HOWEVER, SUCH BENEFITS SHALL IN NO CIRCUMSTANCES BE PAID BEFORE THE DATE ON WHICH THAT PERSON RETURNED TO THE NETHERLANDS . '
8 SINCE THE RAAD VAN BEROEP, UTRECHT, BEFORE WHICH THE PLAINTIFF HAD BROUGHT AN ACTION FOR THE ANNULMENT OF THE ABOVEMENTIONED DECISION, HAD SERIOUS DOUBTS AS TO THE COMPATIBILITY OF THAT RESIDENCE REQUIREMENT WITH COMMUNITY LAW, IT REFERRED, BY ORDER OF 11 DECEMBER 1984, THE FOLLOWING QUESTIONS TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :
' ( 1 ) MUST ARTICLE 52 OR 53 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY OR ANY OTHER PROVISION OF COMMUNITY LAW BE INTERPRETED IN THE SENSE THAT IT IS NECESSARY TO CONSIDER INCOMPATIBLE THEREWITH THE ADOPTION BY A MEMBER STATE OF LEGISLATION WHICH INTER ALIA OFFERS NATIONALS OF THAT STATE THE OPPORTUNITY TO INSURE THEMSELVES ON A VOLUNTARY BASIS AGAINST THE FINANCIAL CONSEQUENCES OF INCAPACITY FOR WORK ARISING IN THE COURSE OF EMPLOYMENT IN A DEVELOPING COUNTRY OUTSIDE THE TERRITORY OF THE COMMUNITY, IF SUCH LEGISLATION CONTAINS, FOR THE PURPOSE OF VERIFICATION, AN ADDITIONAL CONDITION AS REGARDS ENTITLEMENT TO BENEFITS TO THE EFFECT THAT THE PERSON CONCERNED MUST, AFTER THE MATERIALIZATION OF THE CONTINGENCY INSURED AGAINST, HAVE RESIDED OR STAYED FOR A CONTINUOUS PERIOD OF 52 WEEKS WITHIN THE TERRITORY OF THAT MEMBER STATE ALONE IN ORDER TO BE ENTITLED TO BENEFITS, RESIDENCE OR STAY WITHIN THE TERRITORY OF ANOTHER MEMBER STATE AFTER THE MATERIALIZATION OF THE CONTINGENCY INSURED AGAINST NOT BEING TREATED AS EQUIVALENT TO RESIDENCE OR STAY IN THE FIRST-NAMED MEMBER STATE?
( 2)MAY THE CRITERIA SET OUT IN ARTICLE 1 ( A ) ( II ) OF REGULATION NO 1408/71, INCLUDING THOSE SET OUT IN ANNEX I THERETO, ALSO BE APPLIED IN ORDER TO DETERMINE WHETHER A PERSON WITHIN THE MEANING OF ARTICLE 1 ( A ) ( IV ) ' ' CARRIES OUT AN ACTIVITY AS AN EMPLOYED OR SELF-EMPLOYED PERSON ' '
UNDER A SOCIAL SECURITY SCHEME FOR RESIDENTS, OR DOES THAT PHRASE HAVE ANOTHER, INDEPENDENT MEANING AND, IF SO, WHAT?
( 3)DOES THE EXPRESSION ' ' SELF-EMPLOYED PERSON ' ', AS DEFINED INTER ALIA IN ARTICLE 1 ( A ) ( II ) OF REGULATION NO 1408/71, ALSO INCLUDE A PERSON WHO UNDER A SOCIAL SECURITY SCHEME FOR ALL RESIDENTS CAN DERIVE ENTITLEMENT TO BENEFITS ON THE BASIS OF INCOME FROM WORK, OTHER THAN INCOME FROM EMPLOYMENT OR FROM A PROFESSION OR TRADE ENGAGED IN ON A SELF-EMPLOYED BASIS WITHIN THE MEANING OF THE NATIONAL LEGISLATION?
( 4)DOES THE EXPRESSION ' ' SELF-EMPLOYED PERSON ' ', AS DEFINED INTER ALIA IN ARTICLE 1 ( A ) ( II ) OF REGULATION NO 1408/71, OR THE PHRASE ' ' CARRIES OUT AN ACTIVITY AS A . . . SELF-EMPLOYED PERSON ' '
IN ARTICLE 1 ( A ) ( IV ) ALSO INCLUDE A PERSON WHO CAN BE VOLUNTARILY INSURED, WHETHER CONTINUOUSLY OR OTHERWISE, UNDER A SOCIAL SECURITY SCHEME FOR ALL RESIDENTS WHO PURSUE AN ACTIVITY, EVEN THOUGH THAT PERSON CANNOT BE REGARDED AS AN EMPLOYED PERSON OR AS A SELF-EMPLOYED PERSON WITHIN THE MEANING OF THE RELEVANT NATIONAL LEGISLATION BUT ENJOYS BY VIRTUE OF SUCH VOLUNTARY INSURANCE THE SAME DEGREE OF PROTECTION AS A ' ' REAL ' '
EMPLOYED OR SELF-EMPLOYED PERSON?
( 5)IS LEGISLATION WHICH IN SCOPE APPLIES TO AREAS OUTSIDE THE TERRITORY OF THE COMMUNITY TO BE REGARDED AS ' ' LEGISLATION ' '
WITHIN THE MEANING OF ARTICLE 2 OF REGULATION NO 1408/71?
IF THAT QUESTION IS ANSWERED IN THE AFFIRMATIVE, DOES THIS MEAN THAT AN EMPLOYED OR SELF-EMPLOYED PERSON WHO HAS BEEN EXCLUSIVELY SUBJECT TO THAT LEGISLATION IN RESPECT OF ACTIVITIES PURSUED OUTSIDE THE TERRITORY OF THE COMMUNITY MAY CLAIM THE PROTECTION AFFORDED BY REGULATION NO 1408/71?
( 6)IF ON THE BASIS OF A PROVISION OF NATIONAL LEGISLATION THE AWARD OF BENEFITS TO A PERSON IS REFUSED ON THE GROUND THAT HE WAS NOT INCAPACITATED FOR WORK IN THE MEMBER STATE IN QUESTION FOR A CONTINUOUS PERIOD OF 52 WEEKS, DOES THIS MEAN THAT BENEFITS HAVE NOT BEEN AWARDED BY REASON OF THE PLACE OF RESIDENCE, WITHIN THE MEANING OF ARTICLE 2 ( 4 ) OF REGULATION ( EEC ) NO 1390/81?
WOULD THE ANSWER TO THIS QUESTION BE DIFFERENT IF THE PHRASE ' ' INCAPACITATED FOR WORK IN THE MEMBER STATE IN QUESTION ' '
WERE INTERPRETED AS MEANING THAT THE PERSON CONCERNED MUST HAVE HAD A PLACE OF RESIDENCE IN THAT MEMBER STATE?
'
9 BY A DECISION OF 26 NOVEMBER 1985, THE COURT ASSIGNED THE CASE TO THE SECOND CHAMBER .
10 THE NETHERLANDS GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES HAVE SUBMITTED WRITTEN OBSERVATIONS TO THE COURT .
11 THE NATIONAL COURT HAS SUBMITTED A SERIES OF QUESTIONS RELATED TO THE PRINCIPAL ISSUE OF WHETHER A RESIDENCE REQUIREMENT, CONSTITUTING A CONDITION FOR THE AWARD OF AN INVALIDITY BENEFIT, IS, IN THE CIRCUMSTANCES OF THIS CASE, COMPATIBLE WITH COMMUNITY LAW . IN ORDER TO REPLY TO THAT POINT, WHICH IS RAISED IN THE FIRST AND SIXTH QUESTIONS, IT IS FIRST NECESSARY TO CONSIDER THE PRELIMINARY POINTS REFERRED TO IN THE REMAINING QUESTIONS, CONCERNING THE DEFINITION OF THE TERMS ' SELF-EMPLOYED PERSON '
AND ' LEGISLATION '
WITHIN THE MEANING OF REGULATION NO 1408/71, AS AMENDED BY REGULATION NO 1390/81 .
12 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR THE RELEVANT NETHERLANDS PROVISIONS AND FOR THE FACTS AND SUBMISSIONS AND ARGUMENTS OF THE PARTIES, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .
DEFINITION OF THE TERM ' SELF-EMPLOYED PERSON '
( SECOND TO FOURTH QUESTIONS )
13 THE NATIONAL COURT WISHES TO KNOW WHETHER PERSONS WHO PURSUE, OTHERWISE THAN UNDER A CONTRACT OF EMPLOYMENT OR BY WAY OF SELF-EMPLOYMENT IN A TRADE OR PROFESSION, AN ACTIVITY OF ANY KIND IN RESPECT OF WHICH THEY RECEIVE INCOME MAY BE REGARDED AS ' SELF-EMPLOYED PERSONS '
WITHIN THE MEANING OF REGULATION NO 1408/71, AS AMENDED BY REGULATION NO 1390/81, IN ORDER TO DETERMINE WHETHER A PRIEST WHO IS NOT PAID BY HIS ORDER BUT IS MAINTAINED BY HIS PARISHIONERS COMES WITHIN THE SCOPE OF THAT TERM .
14 IN THAT REGARD, THE NATIONAL COURT OBSERVES THAT IN NETHERLANDS TAX LAW THE EXPRESSION ' INCOME FROM WORK '
REFERS TO WORK PERFORMED IN ECONOMIC LIFE WHICH IS INTENDED TO PROVIDE, OR, ACCORDING TO THE RULES PREVAILING IN SOCIETY, CAN REASONABLY BE EXPECTED TO PROVIDE, SOME PECUNIARY ADVANTAGE .
15 THE NETHERLANDS GOVERNMENT OBSERVES THAT, UNDER SECTION I OF ANNEX I TO REGULATION NO 1408/71, THE TERM ' SELF-EMPLOYED PERSON '
MUST BE INTERPRETED IN REGARD TO THE NETHERLANDS AS MEANING ' ANY PERSON PURSUING AN ACTIVITY OR OCCUPATION WITHOUT A CONTRACT OF EMPLOYMENT ' . IT IS NOT THEREFORE NECESSARY THAT THE PERSON ' S INCOME SHOULD COME FROM AN EMPLOYMENT RELATIONSHIP OR FROM SELF-EMPLOYMENT IN A TRADE OR PROFESSION WITHIN THE MEANING OF NATIONAL LAW . CONSEQUENTLY, THE TERM EVEN EXTENDS TO PERSONS WHO, IN THE CONTEXT OF A SOCIAL SECURITY SCHEME APPLYING TO ALL RESIDENTS, MAY BE PERMITTED TO JOIN THE SCHEME ON A VOLUNTARY BASIS, IN RESPECT OF THE EXERCISE OF ANY ACTIVITY, EVEN IF THEY CANNOT BE REGARDED AS EMPLOYED PERSONS OR SELF-EMPLOYED PERSONS WITHIN THE MEANING OF NATIONAL LAW .
16 HOWEVER, THE NETHERLANDS GOVERNMENT POINTS OUT THAT, ALTHOUGH ITS SOCIAL SECURITY LEGISLATION DOES NOT DISTINGUISH BETWEEN THE DIFFERENT CATEGORIES OF INSURED PERSON, A DISTINCTION IS DRAWN IN CERTAIN CASES UNDER THE LAW ON INCAPACITY BETWEEN PERSONS WHO ARE COMPULSORILY INSURED AND THOSE WHO ARE INSURED ON A VOLUNTARY BASIS, INASMUCH AS ADDITIONAL CONDITIONS FOR OBTAINING THE RIGHT TO BENEFITS ARE LAID DOWN .
17 THE COMMISSION ALSO CONSIDERS THAT THE EXPRESSION ' SELF-EMPLOYED PERSON '
CANNOT BE LIMITED TO PERSONS WHO ENGAGE IN A TRADE OR PROFESSION ON A SELF-EMPLOYED BASIS WITHIN THE MEANING OF NATIONAL LAW, BUT IN FACT REFERS TO ANY PERSON WHO, IN THE CONTEXT OF A SOCIAL SECURITY SCHEME APPLYING TO ALL RESIDENTS, ARE ENTITLED TO BENEFITS ON THE BASIS OF INCOME FROM WORK PERFORMED IN ECONOMIC LIFE WHICH IS INTENDED TO PROVIDE, OR, ACCORDING TO THE RULES PREVAILING IN SOCIETY, CAN REASONABLY BE EXPECTED TO PROVIDE, A PECUNIARY ADVANTAGE .
18 WITH REGARD TO THE INTERPRETATION OF THE EXPRESSION ' SELF-EMPLOYED PERSON ', IT MUST FIRST BE POINTED OUT THAT INITIALLY THE PROVISIONS OF REGULATION NO 1408/71, ADOPTED FOR THE IMPLEMENTATION OF ARTICLE 51 OF THE TREATY, APPLIED ONLY TO THOSE WHO WERE COVERED BY THE TERM ' EMPLOYED PERSON ' . ACCORDING TO THE ESTABLISHED CASE-LAW OF THE COURT, ' EMPLOYED PERSON '
IS A TERM OF COMMUNITY LAW RATHER THAN NATIONAL LAW AND MUST BE INTERPRETED BROADLY, HAVING REGARD TO THE OBJECTIVE OF ARTICLE 51, WHICH IS TO CONTRIBUTE TOWARDS THE ESTABLISHMENT OF THE GREATEST POSSIBLE FREEDOM OF MOVEMENT FOR MIGRANT WORKERS, AN OBJECTIVE WHICH IS ONE OF THE FOUNDATIONS OF THE COMMUNITY .
19 IN THE PREAMBLE TO REGULATION NO 1390/81 THE COUNCIL STATED THAT FREEDOM OF MOVEMENT FOR PERSONS WAS NOT CONFINED TO EMPLOYED PERSONS BUT ALSO EXTENDED TO SELF-EMPLOYED PERSONS IN THE FRAMEWORK OF FREEDOM OF ESTABLISHMENT AND THE FREEDOM TO PROVIDE SERVICES AND THAT COORDINATION OF THE SOCIAL SECURITY SCHEMES APPLICABLE TO SELF-EMPLOYED PERSONS WAS NECESSARY TO ACHIEVE ONE OF THE OBJECTIVES OF THE COMMUNITY ; CONSEQUENTLY, IN THAT REGULATION IT EXTENDED THE GENERAL SCOPE OF REGULATION NO 1408/71 TO SELF-EMPLOYED PERSONS AND MEMBERS OF THEIR FAMILY .
20 SINCE REGULATION NO 1390/81 WAS ADOPTED IN ORDER TO ACHIEVE THE SAME OBJECTIVES AS REGULATION NO 1408/71, THE CONCEPT OF ' SELF-EMPLOYED PERSON '
IS INTENDED TO GUARANTEE TO SUCH PERSONS THE SAME PROTECTION AS IS ACCORDED TO EMPLOYED PERSONS AND MUST THEREFORE BE INTERPRETED BROADLY .
21 IN REGARD, MORE PARTICULARLY, TO THE DEFINITION OF THE EXPRESSION ' SELF-EMPLOYED PERSON ', IT MUST BE OBSERVED THAT ACCORDING TO ARTICLE 1 ( A ) ( IV ) OF REGULATION NO 1408/71, AS AMENDED BY REGULATION NO 1390/81, THAT EXPRESSION MEANS, IN THE CASE OF PERSONS WHO, LIKE THE PLAINTIFF, ARE VOLUNTARILY INSURED, ANY PERSON WHO ' CARRIES OUT AN ACTIVITY AS ( A ) SELF-EMPLOYED PERSON ' . WITH RESPECT TO PERSONS WHO ARE COMPULSORILY INSURED, ARTICLE 1 ( A ) ( II ) REFERS IN THAT REGARD EITHER TO THE MANNER IN WHICH THE APPLICABLE SOCIAL SECURITY SCHEME IS ADMINISTERED OR FINANCED OR, IN THE ALTERNATIVE, TO THE DEFINITION GIVEN IN ANNEX I TO THE REGULATION . ACCORDING TO SECTION I OF THAT ANNEX, WHICH IS EXCLUSIVELY CONCERNED WITH THE NETHERLANDS, A SELF-EMPLOYED PERSON WITHIN THE MEANING OF THE ABOVEMENTIONED ARTICLE MEANS ' ANY PERSON PURSUING AN ACTIVITY OR OCCUPATION WITHOUT A CONTRACT OF EMPLOYMENT ' .
22 CONSEQUENTLY, IN THE CONTEXT OF A VOLUNTARY SOCIAL INSURANCE SCHEME SET UP FOR EMPLOYED PERSONS, SELF-EMPLOYED PERSONS OR ALL RESIDENTS, THE QUESTION WHETHER OR NOT A PERSON IS ' SELF-EMPLOYED '
IS DETERMINED BY THE TYPE OF ACTIVITY WHICH HE PURSUES OR HAS PURSUED, AND THE ACTIVITY CANNOT BE AN ACTIVITY OF ANY KIND BUT MUST BE AN OCCUPATION . HOWEVER, HAVING REGARD TO THE BROAD INTERPRETATION WHICH MUST BE GIVEN TO THAT TERM, IT IS NOT NECESSARY THAT THE SELF-EMPLOYED PERSON SHOULD RECEIVE REMUNERATION AS A DIRECT REWARD FOR HIS ACTIVITY . IT IS SUFFICIENT IF HE RECEIVES, IN RESPECT OF THAT ACTIVITY, INCOME WHICH PERMITS HIM TO MEET ALL OR SOME OF HIS NEEDS EVEN IF THAT INCOME IS SUPPLIED, AS IN THIS CASE, BY THIRD PARTIES BENEFITING FROM THE SERVICES OF A MISSIONARY PRIEST .
23 CONSEQUENTLY, THE REPLY TO THE NATIONAL COURT MUST BE THAT THE EXPRESSION ' SELF-EMPLOYED PERSON '
WITHIN THE MEANING OF ARTICLE 1 ( A ) ( IV ) OF REGULATION NO 1408/71, AS AMENDED BY REGULATION NO 1390/81, APPLIES TO PERSONS WHO ARE PURSUING OR HAVE PURSUED, OTHERWISE THAN UNDER A CONTRACT OF EMPLOYMENT OR BY WAY OF SELF-EMPLOYMENT IN A TRADE OR PROFESSION, AN OCCUPATION IN RESPECT OF WHICH THEY RECEIVE INCOME PERMITTING THEM TO MEET ALL OR SOME OF THEIR NEEDS, EVEN IF THAT INCOME IS SUPPLIED BY THIRD PARTIES BENEFITING FROM THE SERVICES OF A MISSIONARY PRIEST .
THE TERM ' LEGISLATION '
( FIFTH QUESTION )
24 IN THIS QUESTION, THE NATIONAL COURT WISHES TO KNOW WHETHER NATIONAL SOCIAL SECURITY RULES, SUCH AS THOSE CONTAINED IN THE LAW ON INCAPACITY, WHICH APPLY TO PERSONS WHO ARE PURSUING OR HAVE PURSUED ACTIVITIES PARTLY OR WHOLLY OUTSIDE THE COMMUNITY MAY BE REGARDED AS ' LEGISLATION '
WITHIN THE MEANING OF ARTICLE 2 OF REGULATION NO 1408/71 .
25 THE NETHERLANDS GOVERNMENT CONSIDERS THAT REGULATION NO 1408/71 PLACES NO TERRITORIAL LIMITATION ON THE SCOPE OF NATIONAL LEGISLATION AND THEREFORE MAKES IT POSSIBLE TO BRING WITHIN THE SCOPE OF SUCH LEGISLATION TERRITORIES SITUATED OUTSIDE THE COMMUNITY . EVEN AN EMPLOYED PERSON WHO HAS BEEN SUBJECT TO THAT LEGISLATION SOLELY ON THE BASIS OF ACTIVITIES PURSUED OUTSIDE THE COMMUNITY WILL THEREFORE, IN PRINCIPLE, COME WITHIN THE SCOPE OF THE REGULATION . HOWEVER, IF IT IS EXPRESSLY PROVIDED THAT APPLICABILITY OF THAT LEGISLATION DEPENDS ON RESIDENCE IN A TERRITORY FORMING PART OF THE COMMUNITY, SUCH A PERSON CANNOT RELY ON IT .
26 THE COMMISSION CONTENDS THAT THE FACT THAT NATIONAL SOCIAL SECURITY LEGISLATION MAKES IT POSSIBLE TO BE INSURED ON THE BASIS OF AN ACTIVITY PURSUED IN A NON-MEMBER COUNTRY AND CONFERS THE RIGHT TO THE CORRESPONDING SOCIAL BENEFITS IS SUFFICIENT TO BRING THE PERSONS INSURED WITHIN THE SCOPE OF REGULATION NO 1408/71 . CONSE QUENTLY, REGULATION NO 1408/71 ALSO APPLIES TO PERSONS RECEIVING BENEFITS PROVIDED FOR IN THE LEGISLATION OF A MEMBER STATE IN RESPECT OF ACTIVITIES PURSUED BY A NATIONAL OF A MEMBER STATE EXCLUSIVELY OUTSIDE THE TERRITORY OF THE COMMUNITY .
27 ATTENTION MUST FIRST BE DRAWN TO THE FACT THAT ACCORDING TO THE DEFINITION CONTAINED IN THE FIRST SUBPARAGRAPH OF ARTICLE 1 ( J ) OF REGULATION NO 1408/71,
' ' ' LEGISLATION ' '
MEANS IN RESPECT OF EACH MEMBER STATE STATUTES, REGULATIONS AND OTHER PROVISIONS AND ALL OTHER IMPLEMENTING MEASURES, PRESENT OR FUTURE, RELATING TO THE BRANCHES AND SCHEMES OF SOCIAL SECURITY COVERED BY ARTICLE 4 ( 1 ) AND ( 2 ). '
28 AS THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 31 MARCH 1977 ( CASE 87/76 BOZZONE V OFFICE DE SECURITE SOCIALE D ' OUTRE-MER, ( 1977 ) ECR 687 ) THAT DEFINITION IS REMARKABLE FOR ITS BREADTH SINCE IT INCLUDES ALL PROVISIONS LAID DOWN BY LAW, REGULATION AND ADMINISTRATIVE ACTION BY THE MEMBER STATES AND MUST BE TAKEN TO COVER ALL THE NATIONAL MEASURES APPLICABLE IN THE MATTER .
29 IN THE LIGHT OF THAT CONSIDERATION, THE ESSENTIAL CRITERION FOR DETERMINING THE SCOPE OF THE TERM IS NOT THE PLACE IN WHICH THE OCCUPATION WAS PURSUED BUT THE LINK WHICH EXISTS BETWEEN THE WORKER, REGARDLESS OF THE PLACE IN WHICH HE PURSUED OR IS PURSUING HIS OCCUPATION, AND THE SOCIAL SECURITY SCHEME IN A MEMBER STATE UNDER WHICH HE HAS COMPLETED PERIODS OF INSURANCE .
30 SINCE THE DECISIVE CRITERION FOR THE APPLICABILITY OF REGULATION NO 1408/71 IS THE FACT THAT THE INSURED PERSON IS AFFILIATED TO A SOCIAL SECURITY SCHEME IN A MEMBER STATE, IT IS OF NO IMPORTANCE WHETHER OR NOT HE PURSUED HIS ACTIVITIES EXCLUSIVELY OUTSIDE THE TERRITORY OF THE MEMBER STATES OF THE COMMUNITY .
31 THE REPLY TO THIS QUESTION MUST THEREFORE BE THAT NATIONAL SOCIAL SECURITY RULES WHICH APPLY TO PERSONS WHO PURSUE OR WHO HAVE PURSUED ACTIVITIES EITHER WHOLLY OR PARTLY OUTSIDE THE COMMUNITY MUST BE REGARDED AS ' LEGISLATION '
WITHIN THE MEANING OF ARTICLE 2 OF REGULATION NO 1408/71 .
THE RESIDENCE REQUIREMENT ( FIRST AND LAST QUESTIONS )
32 IN THESE QUESTIONS, THE NATIONAL COURT IS ASKING WHETHER THE PROVISIONS OF THE TREATY AND OF ARTICLE 2 ( 4 ) OF REGULATION NO 1390/81 APPLY TO A REFUSAL BY A SOCIAL SECURITY INSTITUTION TO AWARD AN INVALIDITY BENEFIT ON THE GROUND THAT THE INSURED PERSON HAD NOT PREVIOUSLY RESIDED OR STAYED IN THE MEMBER STATE CONCERNED FOR A CONTINUOUS SPECIFIED PERIOD .
33 THE NETHERLANDS GOVERNMENT CONSIDERS THAT REGULATION NO 1390/81 MERELY EXTENDS THE SCOPE OF REGULATION NO 1408/71 TO SELF-EMPLOYED PERSONS WITHOUT CONFERRING UPON THEM FURTHER RIGHTS IN ADDITION TO THOSE GRANTED TO EMPLOYED PERSONS ; IN REGARD TO THE LATTER, THE PURPOSE OF ARTICLE 94 OF REGULATION NO 1408/71 IS NOT TO SECURE THE GENERAL ABOLITION OF NATIONALITY OR RESIDENCE REQUIREMENTS BUT MERELY TO ASSIMILATE PERIODS OF RESIDENCE FOR THE PURPOSES OF BENEFITS ALREADY ACQUIRED . CONSEQUENTLY, NEITHER THAT PROVISION NOR ARTICLE 2 OF REGULATION NO 1390/81 IS APPLICABLE TO A RESIDENCE REQUIREMENT SUCH AS THE ONE AT ISSUE, WHICH MUST BE MET BEFORE ENTITLEMENT TO THE BENEFIT CAN ARISE .
34 FURTHERMORE, THE NETHERLANDS GOVERNMENT CONSIDERS THAT THE AFOREMENTIONED PROVISIONS ARE APPLICABLE ONLY TO BENEFITS WHICH WERE NOT AWARDED OR WHICH WERE SUSPENDED BEFORE 1 JULY 1982, THE DATE ON WHICH REGULATION NO 1390/81 CAME INTO EFFECT, WHEREAS THE CONTESTED DECISION WAS ADOPTED SUBSEQUENT TO THAT DATE .
35 THE COMMISSION, ON THE OTHER HAND, CONSIDERS THAT THE ABOLITION OF RESIDENCE REQUIREMENTS GUARANTEES NOT ONLY THAT THE INSURED PERSON SHALL RETAIN THE RIGHT TO BENEFITS ALREADY ACQUIRED BUT ALSO ENSURES THAT HE CANNOT BE PREVENTED FROM ACQUIRING A RIGHT TO SUCH BENEFITS MERELY BECAUSE HE RESIDES ON THE TERRITORY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYING THE BENEFIT IS LOCATED .
36 IT SHOULD FIRST BE NOTED THAT OF ARTICLE 2 ( 4 ) OF REGULATION NO 1390/81 PROVIDES THAT
' ANY BENEFIT WHICH HAS NOT BEEN AWARDED OR WHICH HAS BEEN SUSPENDED BY REASON OF THE NATIONALITY OR PLACE OF RESIDENCE OF THE PERSON CONCERNED SHALL, ON THE APPLICATION OF THE PERSON CONCERNED, BE AWARDED OR RESUMED WITH EFFECT FROM THE ENTRY INTO FORCE OF THIS REGULATION . . . ' .
THE PURPOSE OF THAT PROVISION IS TO PERMIT PERSONS COMING WITHIN THE SCOPE OF THE REGULATION TO OBTAIN SOCIAL SECURITY BENEFITS WHICH THEY HAVE BEEN REFUSED, OR WHICH WERE INITIALLY AWARDED BUT LATER SUSPENDED, OWING TO THE FACT THAT THE INSURED PERSON IS OF FOREIGN NATIONALITY OR RESIDES OUTSIDE THE MEMBER STATE IN QUESTION .
37 CONSEQUENTLY, A PERSON WHO RESIDES OR HAS STAYED IN ANOTHER MEMBER STATE IS TO BE TREATED AS RESIDING OR AS HAVING STAYED IN THE MEMBER STATE CONCERNED .
38 WITH REGARD MORE PARTICULARLY TO THE LEGAL EFFECT OF THE WAIVING OF RESIDENCE CLAUSES, IT SHOULD BE POINTED OUT THAT ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 PROVIDES AS FOLLOWS :
' SAVE AS OTHERWISE PROVIDED IN THIS REGULATION, INVALIDITY . . . BENEFITS, . . . ACQUIRED UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES SHALL NOT BE SUBJECT TO ANY REDUCTION, MODIFICATION, SUSPENSION, WITHDRAWAL OR CONFISCATION BY REASON OF THE FACT THAT THE RECIPIENT RESIDES IN THE TERRITORY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED . '
39 IN THAT CONNECTION, THE COURT, IN ITS JUDGMENTS OF 7 NOVEMBER 1973 ( CASE 51/73 SOCIALE VERZEKERINGSBANK V SMIEJA ( 1973 ) ECR 1213 ) AND OF 10 JUNE 1982 ( CASE 92/81 CARACCIOLO V INAMI ( 1982 ) ECR 2213 ) HELD THAT THE AIM OF THAT PROVISION IS TO PROMOTE THE FREE MOVEMENT OF WORKERS BY INSULATING THOSE CONCERNED FROM THE HARMFUL CONSEQUENCES WHICH MIGHT RESULT WHEN THEY TRANSFER THEIR RESIDENCE FROM ONE MEMBER STATE TO ANOTHER . AS THE COURT ADDED IN THE ABOVEMENTIONED JUDGMENT OF 10 JUNE 1982, IT IS CLEAR FROM THAT PRINCIPLE NOT ONLY THAT THE PERSON CONCERNED RETAINS THE RIGHT TO RECEIVE ' PENSIONS AND BENEFITS ACQUIRED UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES EVEN AFTER TAKING UP RESIDENCE IN ANOTHER MEMBER STATE, BUT ALSO THAT HE MAY NOT BE PREVENTED FROM ACQUIRING SUCH A RIGHT MERELY BECAUSE HE DOES NOT RESIDE IN THE TERRITORY OF THE STATE IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED ' .
40 HOWEVER, HAVING REGARD TO THE DATE ON WHICH REGULATION NO 1390/81, EXTENDING THE ABOVEMENTIONED PROVISION TO SELF-EMPLOYED PERSONS, CAME INTO FORCE, SUCH PERSONS, MAY UNDER ARTICLE 2 ( 1 ) OF THE SAID REGULATION, CLAIM THE BENEFIT OF ARTICLE 2 ( 4 ) ONLY FROM 1 JULY 1982 IN RESPECT OF BENEFITS ACQUIRED UNDER NATIONAL LAW .
41 THE REPLY TO THE NATIONAL COURT MUST THEREFORE BE THAT ARTICLE 2 ( 4 ) OF REGULATION NO 1390/81 APPLIES TO A REFUSAL BY A SOCIAL SECURITY INSTITUTION TO AWARD AN INVALIDITY BENEFIT ON THE GROUND THAT THE INSURED PERSON HAS NOT PREVIOUSLY STAYED OR RESIDED IN THE MEMBER STATE CONCERNED FOR A CONTINUOUS SPECIFIED PERIOD . HOWEVER, THE INSURED PERSON MAY CLAIM THE BENEFIT OF THAT PROVISION ONLY WITH EFFECT FROM 1 JULY 1982 .
Decision on costs
COSTS
42 THE COSTS INCURRED BY THE KINGDOM OF THE NETHERLANDS 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 PROCEEDINGS PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE RAAD VAN BEROEP, UTRECHT, BY ORDER OF 11 DECEMBER 1984, HEREBY RULES :
( 1 ) THE EXPRESSION ' SELF-EMPLOYED PERSON '
WITHIN THE MEANING OF ARTICLE 1 ( A ) ( IV ) OF REGULATION NO 1408/71, AS AMENDED BY REGULATION NO 1390/81, APPLIES TO PERSONS WHO ARE PURSUING OR HAVE PURSUED, OTHERWISE THAN UNDER A CONTRACT OF EMPLOYMENT OR BY WAY OF SELF-EMPLOYMENT IN A TRADE OR PROFESSION, AN OCCUPATION IN RESPECT OF WHICH THEY RECEIVE INCOME PERMITTING THEM TO MEET ALL OR SOME OF THEIR NEEDS, EVEN IF THAT INCOME IS SUPPLIED BY THIRD PARTIES BENEFITING FROM THE SERVICES OF A MISSIONARY PRIEST .
( 2)NATIONAL SOCIAL SECURITY RULES WHICH APPLY TO PERSONS WHO PURSUE OR WHO HAVE PURSUED ACTIVITIES EITHER WHOLLY OR PARTLY OUTSIDE THE COMMUNITY MUST BE REGARDED AS ' LEGISLATION '
WITHIN THE MEANING OF ARTICLE 2 OF REGULATION NO 1408/71 .
( 3)ARTICLE 2 ( 4 ) OF REGULATION NO 1390/81 APPLIES TO A REFUSAL BY A SOCIAL SECURITY INSTITUTION TO AWARD AN INVALIDITY BENEFIT ON THE GROUND THAT THE INSURED PERSON HAS NOT PREVIOUSLY STAYED OR RESIDED IN THE MEMBER STATE CONCERNED FOR A CONTINUOUS SPECIFIED PERIOD . HOWEVER, THE INSURED PERSON MAY CLAIM THE BENEFIT OF THAT PROVISION ONLY WITH EFFECT FROM 1 JULY 1982 .