No C 269/40 Official  Journal  of the European  Communities 13. 11. 78 
Opinion  on the proposals  for: 
— a Council  Regulation  concerning  the adaptation  of Council  Regulation  (EEC)  No 1408/71 
of 14 June  1971  on the application  of social  security  schemes  to employed  persons  and their 
families  moving  within  the Community,  with  a view  to applying  it to self-employed  persons 
and their  families 
— a Council  Regulation  concerning  the adaptation  of the Annexes  to Council  Regulation 
(EEC)  No 1408/71  of 14 June  1971  on the application  of social  security  schemes  to 
employed  persons  and  their  families  moving  within  the Community,  with  a view  to 
applying  it to self-employed  persons  and their  families 
The text  referred  to the Committee  has been  published  in Official  Journal  of the European 
Communities  No  C 14 of 18 January  1978,  page  9. 
A. LEGAL  BASIS  FOR  THE  OPINION 
On 12 January  1978,  the Council  referred  the abovementioned  proposal  to the Economic  and 
Social  Committee  in accordance  with  Articles  51, 198  and 235  of the Treaty  establishing  the 
European  Economic  Community. 
B. OPINION  OF THE  ECONOMIC  AND  SOCIAL  COMMITTEE 
The Economic  and Social  Committee  prepared  its opinion  on the above  matter  at its 159th 
plenary  session,  held  in Brussels  on 31 May  and  1 June  1978. 
The full  text  of the opinion  is as follows: 
THE  ECONOMIC  AND  SOCIAL  COMMITTEE, 
Having  regard  to the Treaty  establishing  the European 
Economic  Community,  and in particular  Articles  51, 198 
and 235, 
Having  regard  to the request  made  by the Council  of the 
European  Communities  on 13 January  1978  for  an 
opinion  of the Committee, 
Having  regard  to the decision  taken  on 18 January  1978 
by the chairman  of the Committee,  under  Article  22 of 
the Rules  of Procedure,  instructing  the Section  for Social 
Questions  to prepare  a draft  opinion  and a report  on the 
matter, 
Having  regard  to the opinion  given  by the Section  for 
Social  Questions,  dated  18 May  1978, 
Having  regard  to the report  drawn  up by the rapporteur, 
Mr Purpura,  and  submitted  by Mr Pronk, 
Having  regard  to the discussions  at its 159th  plenary 
session  of 31 May  and  1 June  1978  (meeting  of 31 May 
1978), 
Whereas  social  security  for employed  persons  and  their 
families  moving  within  the Community  is covered  by 
Council  Regulation  (EEC)  No 1408/71  of 14 June  1971 
and by Council  Regulation  (EEC)  No 574/72  of 21 March 
1972; 
Whereas  Regulations  (EEC)  No  1408/71  and  (EEC) 
No 574/72  have  been  subsequently  amended  and supplemented  by further  Community  measures,  namely 
Council  Regulation  (EEC)  No 1392/74  of 4 June  1974, 
Council  Regulation  (EEC)  No 1209/76  of 30 April  1976 
and Council  Regulation  (EEC)  No  2595/77  of 21 
November  1977;  whereas  the  Implementing  Council 
Regulation  has  also  been  amended  by  Council 
Regulation  (EEC)  No 2139/74  of 15 October  1974; 
Whereas  the  Economic  and  Social  Committee  has 
requested  the Commission  and  the Council  on several 
occasions  in the last  decade  to adopt  social  security 
provisions  for self-employed  persons,  in particular  in its 
recent  opinion  of 26 October  1977  on the proposal  for a 
Regulation  amending  Regulations  (EEC)  No 1408/71  and 
(EEC)  No 574/72  on social  security  for employed  persons 
and their  families  moving  within  the Community,  as well 
as in its opinion  of 14 November  1977  on the proposal  for 
a Directive  to coordinate  the laws  of the Member  States 
relating  to self-employed  commercial  agents; 
Whereas  the  time  has  now  come  to take  the  action 
requested  by the  Committee  and  extend  Regulations 
(EEC)  No 1408/71  and (EEC)  No 574/72,  several  times 
amended,  to cover  self-employed  persons  and  their 
families  moving  within  the Community  in order  to pursue 
a professional  or trade  activity  on the basis  of the right  of 
establishment  and  the freedom  to provide  services, 
HAS  ADOPTED  THE  FOLLOWING  OPINION 
nem.  con.,  with  three  abstentions: 
13. 11. 78 Official  Journal  of the European  Communities  No  C 269/41 
1. Introduction 
1.1. The  Committee  welcomes  the  Commission's 
initiative,  even  though  it is rather  late  (15 years  after  the 
European  Conference  on Social  Security  in December 
1962  and  some  five  years  after  the  Social  Action 
Programme  was submitted  in April  1973).  For this reason, 
the Committee  requests  the  Council  to adopt  the 
proposed  Regulations  as soon  as the European  Parliament 
and the Committee  have  given  their  opinions,  so as to 
make  up for the time  taken  in preparing  these  proposals. 
1.2. The  Committee  approves  the  two  proposed 
Council  Regulations  to amend  the  social  security 
provisions  for  employed  persons  and  their  families 
moving  within  the  Community,  extending  them  to 
self-employed  persons  and their  families  who  move  within 
the Community  on the basis  of the right  of establishment 
and the freedom  to provide  services.  Approval  is subject, 
however,  to the following  general  and specific  comments. 
2. General  comments 
2.1.1.  In  its  general  appraisal  of the  proposed 
Regulations,  the Committee  wishes  to emphasize  the close 
connection  between  social  security  for  self-employed 
persons  on the one  hand  and  the right  of establishment 
and freedom  to provide  services  on the other;  to make 
these  rights  fully  effective,  self-employed  persons  must  be 
given  not only  legal  protection  in the pursuit  of their  work 
but also  social  security  and  insurance  protection  as well. 
2.1.2.  This  will  supplement  and  strengthen  the 
protection  already  given  to self-employed  persons  under 
Community  legislation.  The  self-employed  will  then  be 
more  inclined  to move  freely  within  the nine  Member 
States  to establish  their  activities  on a permanent  or 
temporary  basis,  secure  in the knowledge  that  they  will 
enjoy  the  same  social  security  benefits  as national 
self-employed  persons. 
2.2.1.  In  examining  the  proposed  Regulations,  the 
Committee  notes  that,  following  established  practice,  the 
Commission  wished  to have  the Committee's  opinion, 
even  though  this is not mandatory.  The Committee  wishes 
to emphasize  its continuing  keen  interest  in the matter  of 
social  security  for  both  employed  and  self-employed 
persons  moving  within  the Community. 
2.3.1.  The  Committee  notes  that  the legal  basis  for the 
Commission's  two proposals  is provided  by Articles  2 and 
7 of the Treaty  (which  set out the political,  economic  and 
social  objectives  of the  Community  and  prohibit 
discrimination  on the grounds  of nationality);  by Article 
51 (social  security  for migrant  workers);  and Article  235, 
which  gives  the Council  the power  to take  appropriate 
measures  'if action  by the  Community  should  prove necessary  to attain  one  of the  objectives  of the 
Community,  and  this  Treaty  has  not  provided  the 
necessary  powers'. 
2.3.2.  The  Committee  agrees  with  the Commission 
and recalls  that  on more  than  one occasion  it has called  for 
Article  235  of the Treaty  to be implemented  to provide  a 
legal  solution  to social  problems. 
2.4.1.  As  far as the  form  of the  two  proposals  is 
concerned,  the Commission  has opted  for the following 
solution: 
(a) It has amended  Regulation  (EEC)  No 1408/71  on 
employed  persons  making  it applicable  also  to 
self-employed  persons  (craftsmen,  small 
businessmen,  owner-occupier  farmers  and  those 
engaged  in the professions),  instead  of drawing  up a 
single  new  Regulation  for both  categories  of workers, 
or drafting  a separate  Regulation  for  the 
self-employed  while  leaving  Regulation  (EEC)  No 
1408/71  unchanged.  In other  words  it has changed 
the title  of Regulation  (EEC)  No  1408/71  and 
amended  the content  of individual  Articles; 
(b) It has  prepared  two  separate  Regulations,  one 
amending  the text  of Regulation  (EEC)  No 1408/71 
and the other  amending  some  of the Annexes  to this 
Regulation. 
2.4.2.  The  Committee  notes  first  of all that  although 
the provisions  introduced  by the Commission  improve 
social  security  protection  for all categories  of workers, 
some  of the provisions  of Regulation  (EEC)  No 1408/71 
unfortunately  still do not apply  to self-employed  workers. 
2.4.3.  The  Committee  believes  it is not  sufficient 
merely  to change  the  title  of Regulation  (EEC)  No 
1408/71  in order  to extend  its  applicability  to 
self-employed  persons,  when  the  recitals  remain 
unchanged,  making  no mention  of the need  to enlarge  the 
scope  of the Regulation.  However,  taking  into  account  the 
various  arguments  for and  against,  the  Committee  is 
prepared  to  accept  the  system  adopted  by  the 
Commission.  It nevertheless  hopes  that  the Commission 
will eventually  take  a fresh  look  at the matter  with  a view 
to consolidating  the legislation  and  thereby  clarifying 
certain  basic  issues. 
2.4.4.  With  regard  to the 'unity'  of the two  proposals, 
the Committee  believes  that  the Annexes  are an integral 
part of the Regulations  proper,  the amendments  proposed 
to some  of the Annexes  relating  directly  to the extension 
of the existing  rules  to self-employed  persons.  It is very 
doubtful  whether  Article  95.  of Regulation  (EEC)  No 
1408/71  alone  is enough  to provide  the legal  basis,  since 
the new  rules  have  changed  the  applicability  of the 
No C 269/42 Official  Journal  of the European  Communities 13. 11. 78 
legislation.  The Committee  therefore  requests  the Council 
to consider  whether  it would  not  be appropriate  to 
combine  the two proposals  into  a single  text,  as it has done 
on other  occasions.  The Council  should  bear  in mind  that, 
from  a practical  point  of view  and until  such  time  as the 
legislation  is consolidated,  we must  avoid  having  a large 
number  of different  legal  provisions  since  this can lead  to 
uncertainty  and  confusion  for Community  citizens.  The 
texts  must  be clear,  in order  to avoid  discrimination 
against  the workers  concerned. 
2.5.1.  The  two  proposed  Regulations  relate  solely  to 
the amendment  and  adaptation  of Regulation  (EEC) 
No 1408/71  of 14 June  1971,  with  its subsequent 
amendments.  The  Commission  also  intends  to prepare  as 
soon  as possible  a proposal  for  a Regulation  to 
'supplement  similarly  the implementing  procedure  laid 
down  in Regulation  (EEC)  No 574/72  of 21 March  1972, 
with subsequent  amendments'. 
2.5.2.  The  Committee  notes  that  the proposed  rules 
will only  come  into  effect  six months  after  publication  in 
the Official  Journal  of the European  Communities  of the 
Regulation  adapting  Regulation  (EEC)  No 574/72  to 
self-employed  persons.  It therefore  urges  the Commission 
to press  on faster  with  its work  and  submit  the proposed 
implementing  Regulation  (amending  Regulation  (EEC) 
No 574/72  and  Annexes)  to the Council  as soon  as 
possible,  so as to give  immediate  effect  to the social 
security  provisions  for self-employed  persons. 
3. Specific  comments  and  proposals 
3.1.1.  In  the proposed  Regulation,  an employed  or 
self-employed  person  is defined  as such,  not on the basis  of 
the occupation  he pursues,  but in accordance  with  the 
definitions  given  by national  social  security  legislation. 
Moreover,  the new  definition  of the beneficiaries  of social 
security  differs  from  the original  Article  1 of Regulation 
(EEC)  No 1408/71,  in that  the requirement  that  persons 
insured  under  a voluntary  scheme  must  have  previously 
been  compulsorily  insured  has now  been  dropped. 
3.1.2.  The  Committee  approves  the criterion  used  in 
the new  definition,  which  is modelled  on the case  law of 
the Court  of Justice  of the European  Communities.  The 
Committee  recognizes  the  importance  of the  new 
provision  and  agrees  that  the requirement  that  persons 
must  have  previously  been  insured  under  a compulsory 
insurance  scheme  should  be dropped. 
Thus,  under  Article  1 (a) (a) of the new  Regulation,  those 
who are insured  only  on a voluntary  basis  under  the 
legislation  of a Member  State,  without  having  been 
compulsorily  insured  previously  for the same  contingency 
in the same  Member  State,  will  also  be covered  by the 
Community's  social  security  provisions. 3.1.3.  However,  the definition  excludes  those  who  in 
some  Member  States  receive  national  insurance  benefits 
as residents,  but  not  as employed  or self-employed 
persons,  and who  cannot  show  that  they  have  previously 
been  insured  as workers. 
3.1.4.  The  Committee  regrets  this  unjustified 
discrimination  and urges  the Commission  and the Council 
to delete  the following  phrase  from  Article  1 (a) (a) (iv) of 
the proposed  Regulation:  'if he has  previously  been 
insured  under  such  a scheme  as an employed  or 
self-employed  person  within  the meaning  of (ii) or (iii)'. 
3.2.1.  The  proposed  Regulation  covers  'all legislations 
and social  security  schemes  of the  Member  States 
applicable  to self-employed  persons,  regardless  of 
whether  they  are special  schemes  for this  category  of 
insured  persons  or schemes  covering  all residents  or the 
whole  working  population',  with  two  exceptions:  (a) in 
France,  the  invalidity  and  life  insurance  schemes  for 
self-employed  persons  in occupations  outside  agriculture; 
and (b) in Germany,  the schemes  for the professions  set up 
by special  statute  and coming  under  the jurisdiction  of the 
Lander  and  not of the Federal  State. 
3.2.2.  Although  it appreciates  the legal  reasons  why 
these  schemes  have  been  excluded,  the Committee  points 
out that  they  may  in some  cases  make  acquisition  of 
benefit  rights  in each  of the countries  concerned  difficult 
by not allowing  aggregation  of insurance  periods  credited 
to the insured  in other  Member  States  despite  the Treaty 
provision  to the  contrary.  The  Committee  therefore 
advises  the Commission  to call upon  the Member  States 
to prompt  or support  action  by  the  professional 
organizations  concerned  to secure  application  of the 
Community  rules  in these  schemes  and  in particular  to 
secure  mutual  recognition  of insurance  periods  credited 
under  these  schemes  and under  schemes  in other  Member 
States. 
3.3.1.  The  newly  amended  Articles  13 and  14 of 
Regulation  (EEC)  No 1408/71  are still  based  on the 
'principle  that  only  one  legislation  shall  apply'.  This 
principle  therefore  also  applies  to self-employed  persons 
who pursue  their  professional  or trade  activities  in several 
Member  States.  With  a few exceptions,  this principle  is in 
the interests  of workers  both  as regards  contributions  and 
benefits.  The Committee  agrees  with  the Commission  on 
this. 
3.3.2.  It  must  be pointed  out,  however,  that  in the 
Italian  text  of the proposed  Regulation,  the revised  point 
2 (b) of Article  13 (2) was omitted,  no doubt  because  of a 
printing  error.  This  omission  must  be corrected  and  the 
following  phrase  added:  '(b) in the first  line of paragraph 
(b), the word  "employed"  shall  be replaced  by the words 
"who  pursues  his professional  or trade  activity".' 
13. 11. 78 Official  Journal  of the European  Communities No C 269/43 
3.3.3.  The  revised  version  of Article  14 may  lead  to 
uncertainty  and  confusion,  since  some  clauses  refer  only 
to self-employed  persons,  others  to employed  persons  and 
still others  to both  categories.  The  Committee  would 
therefore  like  the  Commission  to reword  Title  II of 
Regulation  (EEC)  No 1408/71  to make  it quite  clear 
whether  the  provisions  apply  to the  employed,  the 
self-employed  or both. 
3.4.1.  There  are one  or two  cases  where  Community 
provisions  on employed  persons  are  not  extended  to 
self-employed  persons,  namely: 
(a) certain  methods  of aggregating  insurance  periods  for 
entitlement  to pensions; 
(b) the  possibility  of drawing  unemployment  benefits 
outside  the State  in question. 
The first  of these  exceptions,  (a),  relates  to special 
invalidity,  old-age  and  life  insurance  schemes,  under 
Article  38, revised  paragraph  3 of the Regulation.  The 
second,  (b),  relates  to self-employed  persons,  under 
Article  69 (1), Article  70 (1) (2) and Article  71 (1) (a) (i), 
and concerns  the  rules  governing  the  acquisition, 
conservation  and  transfer  of  entitlement  to 
unemployment  benefits. 
3.4.2.  The  Committee  recognizes  the  difficulties 
involved  in removing  these  two  exclusions  and is aware  of 
the resistance  on the part  of some  Member  States.  But it 
considers  them  to be rather  serious,  even  though  in 
practice  they  apply  only  to a limited  number  of cases. 
With  regard  to unemployment  benefits,  the law  is also 
unwise  in that  it does  not  take  into  account  the 
psychological  effects  on  self-employed  persons, 
particularly  those  in intellectual  jobs.  It therefore  calls 
upon  the Council  and  the Commission  to reconsider  the 
matter. 
We must  also  consider  another  case  where  the treatment 
accorded  to employed  persons  might  not be extended  to 
self-employed  persons.  This  concerns  the  revised 
paragraph  5 of Article  45 of Regulation  (EEC)  No 
1408/71. 
3.5.1.  Article  45 of Regulation  (EEC)  No  1408/71 
states  that  where  the legislation  of a Member  State  makes 
the granting  of invalidity  benefits  conditional  upon  a worker  being  subject  to its legislation  at the time  when  the 
risk materializes,  any  employed  person  who  becomes 
invalid  when  he is no longer  subject  to that  legislation  may 
obtain  such  benefits  if he can establish  a claim  to benefits 
under  the legislation  of another  Member  State. 
But self-employed  persons  are  excluded  from  this 
possibility  since  the  revised  paragraph  5 refers  to 
'employed  persons'. 
3.5.2.  Although  aware  that  this  discrimination  stems 
from  the specific  nature  of Dutch  legislation,  which  is of 
the typically  'risk-oriented'  kind,  the Committee  asks  the 
Commission  to reconsider  the matter  and come  up with  a 
fair solution. 
4. Conclusions 
4.1.1.  In  formulating  its conclusions  and proposals  on 
the draft  Regulation,  the  Committee  would  like  to 
emphasize  that  the problems  involved  in coordinating  the 
national  social  security  laws  over  the past  few  years  — first 
for employed  persons  and then  for self-employed  persons 
— are largely  attributable  to the wide  variety  of laws  in the 
individual  States. 
This  has  already  been  stated  by the Committee  in its 
opinion  of 25 January  1967  on the proposal  later  to 
become  Regulation  No 3 rev.;  in its opinion  of 27 October 
1971  on the proposal  for Regulation  (EEC)  No 574/72; 
and in other  subsequent  opinions. 
4.1.2.  The  Committee  believes  that  the time  has now 
come  to take  a bold  stand  and  gradually  adopt  a series  of 
concrete  measures  to align  national  laws,  within  the 
meaning  and  in the spirit  of Articles  117  and  118  of the 
Treaty.  What  is needed  is political  will,  since  European 
unity  in economic  and social  matters  can only  be achieved 
if individual  States  are  prepared  to abandon  their 
conflicting  legislation  and  harmonize  their  laws  in one 
'common  law'. 
Given  political  will,  the  lfegal  problems  hindering 
Community  action  can  be overcome,  now  that  the 
Commission  and  the Council  have  begun  to use Article 
235 of the Treaty. 
Done  at Brussels,  31 May  1978. 
The Chairman 
of the Economic  and  Social  Committee 
Basil  de FERRANTI