IV —

The Insurance Officer follows the wording of the Annex and considers that the claimant who, from the point of view of labour law, was self-employed at the material time, was not “required to pay contributions as an employed worker” and thus does not come within the scope of the definition in Article 1 (a) (ii). A — At first sight there appears to be a discrepancy between your case-law, according to which the term “worker” has a Community meaning, and Annex V, in particular its section dealing with the United Kingdom, which refers to national law for the purpose of defining this concept. As long as the Community concept of a worker also covered persons “required to pay contributions as employed workers”, no difficulty arose. But we have seen in your case-law the extent to which this concept departs from this criterion. In fact, your case-law is influenced by two considerations: In the first place, you consider that the regulation cannot be given an application which depends on a definition or a modification of national law. Secondly, although you have sometimes held that the regulation could not be regarded as a measure to harmonize or approximate the laws of the Member States, but merely to coordinate them, you have done so solely in order to maintain or strengthen the rights which workers enjoy under the laws of the Member States: it is for this reason that you have ruled that in no case could the regulation be interpreted or applied as reducing these rights. You confirmed this principle again after the accession of the new Member States in Case 24/75 (Judgment of 21 October 1975, Petroni v Office National des Pensions pour Travailleurs Salariés, [1975] ECR 1149). Giving more direct consideration to the first question which is referred to you, I must therefore reply that the term “worker” is defined exhaustively in Articles 1 and 2 of the regulation, in the sense in which they must, according to your case-law, be interpreted. The sole aim of Annex V is, in accordance with Article 89 of the regulation, to determine the special procedures for implementing the legislation of certain Member States on the basis of this definition and not to determine the procedures for implementing the regulation on the basis of the variations between national legislations. I will go further: to the extent to which the “restrictions” (Article 1 (a) (i)) or contingency “specified” (Article 1 (a) (ii), second indent) contained in this Annex exclude or seek to exclude from the application of the regulation certain persons who are workers within the meaning of Article 51, as this article has been interpreted by you, this Annex is unlawful. The fact that the section concerning the United Kingdom, in the wording existing at the material time, was drawn up by agreement among the Member States makes no difference. If the definition laid down in Annex V in relation to the United Kingdom had contained a new aspect, then, in accordance with Article 30 of the Act concerning the conditions of accession and the adjustments to the Treaties, the whole of Regulation No 49/71, including its preamble, should have been amended to take account of this aspect. This section forms part of a regulation which you have supreme power to interpret and declare valid in the light of the whole of the Treaty and of your own case-law. However, I do not think that it is necessary to take this heroic step: the phrase “required to pay contributions as employed workers” is not incompatible with a wider interpretation based on your earlier case-law. In case of an amendment of national law, the Annex expressly although not exhaustively states what is contained by implication in the regulation, as it must be interpreted and applied in the light of this case-law. It has been amended and supplemented on various occasions by means of the procedures referred to in Article 95 of the regulation. Thus, Article 1 (5) of Regulation No 1392/74 of the Council of 4 June 1974 (OJ L 152 of 8. 6. 1974, p. 1) added six new paragraphs concerning the United Kingdom with retroactive effect to 1 April 1973. Changes were also made by Regulation No 1209/76 of the Council of 30 April 1976 (OJ L 138 of 26. 5. 1976, p. 1) which, “having regard to the changes that have been made in United Kingdom legislation” amended, in particular by Article 1 (4) (b), the Annex concerning that country and added thereto, with retroactive effect to 1 April 1973, a paragraph 16 according to which: “For the purposes of Article 10 (1) of the Regulation” (which deals with the “waiving of residence clauses”) “any beneficiary under United Kingdom legislation who is staying in the territory of another Member State, shall, during that stay, be considered as if he resided in the territory of that other Member State”. Consequently, invalidity, old-age or survivors' pensions cannot be subject to any reduction, modification, suspension or withdrawal 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. This regulation also added, with effect to 6 April 1975, a paragraph 17 which provides that … ‘for each week of insurance, employment or residence as a worker, the person concerned shall be deemed to have paid contributions as an employed earner on the basis of earnings equivalent to two-thirds of that year's upper earnings limit’. I consider this interpretation to be compatible with the nature of the Annex which, as I have said, is merely declaratory and which, formally at least, does not even require bringing up to date. Although it is good legislative practice for Community texts to be adjusted in good time in order to guide the competent authorities responsible for applying the Community regulations and the national texts, the fact that they have not been amended to take account of the case-law of the Court and the development of British legislation cannot be set up against the insured persons concerned. B — Having demonstrated that Point I of the provisions of Annex V concerning the United Kingdom cannot a priori prevent the claimant falling within the ambit of the persons covered by regulation, I would now like to try to give the reasons why I consider that a person such as the claimant ought normally to fall within Article 1 (a) (ii) of Regulation No 1408/71. It is in my opinion clear from the combined provisions of that article and of Annex V that the term ‘worker’ refers to any person who, having been liable as an employed person to insure himself, under a special security scheme applying inter alia to employed persons, against a contingency provided for in Regulation No 1408/71, must — whatever the nature of his occupational activity — continue to contribute to a general scheme organized inter alia for employed persons and whose employed person's contributions must be taken into account in order that he may qualify for the full rate of the benefit prescribed for a contingency against which employed workers are protected in an identical manner, even though such contingency is not expressly mentioned in Annex V. I condider that it is quite possible for the case-law which you developed in relation to Regulation No 3 to be transposed to the context of Regulation No 1408/71. Assuming that the expression ‘workers’ used by this latter regulation refers principally to employed persons, it covers, according to the express terms of Article 2 (1), not only workers who, as employed persons, are at present subject to the legislation of one or more Member States, but also to those who ‘have been’ so subject. This is shown by ground 12 of your judgment in the Janssen case, given on 27 October 1971. In particular, this expression refers to any person who is insured compulsorily on a continuing basis, under a scheme for employed workers, for one or more of the contingencies covered by the branches of social security to which the regulation applies. There is still room in Regulation No 1408/71 for the concept of assimilation, although the Community legislature made every effort to banish this expression and it is wrong to say, at least in the categorical form used by the Danish Government, that ‘It must therefore be excluded from the outset that independent persons for example are covered by the regulation although the regulation states that it also covers persons who have been workers’. The exact extent of that assimilation can only be determined by reference to the terms of the national legislation and it will therefore be necessary to refer to the law governing the claimant. However, in this respect you have established an important criterion: according to your case-law ‘Such an assimilation takes place on every occasion on which, as the result of the effect of a national legislation, the provisions of a general scheme of social security are extended to a category of persons other than the wage-earners referred to by [Regulation No 3], whatever may be the forms or methods employed by the national legislature’ (ground of judgment in Case 23/71; Janssen). Similarly, it will be for the national court to determine whether the extension of the provisions of the general scheme to those persons who are in the position of the claimant entitles them to a degree of protection against the risk in question comparable to that granted in respect of the same risk under the general scheme (ground 9 of judgment in the same case). Like the British Government I have no doubts as to the complete nature of this assimilation. In fact, the file sent by the National. Insurance Commissioner shows that the claimant had been an employed person and, as such, had been liable to pay contributions; although, strictly speaking, he was no longer liable to pay contributions in order to qualify for sickness benefit in cash as an insured person, this is because in normal circumstances he would have been entitled to a retirement pension which would have taken the place of such benefits. As he had temporarily refrained from drawing his retirement pension and was continuing to work on a self-employed basis, he was therefore liable to pay contributions in order to qualify for the cash sickness benefit payable to the self-employed. Furthermore, he could not have claimed the reimbursement of his contributions since he had not ceased to be subject to compulsory insurance (Article 10 (1) and (2) of Regulation No 1408/71). Since, according to the Commission's own findings, during his temporary stay in the territory of another Member State his condition required the immediate payment of benefits, he must be treated as if he was residing in the territory of that State and the benefit due under British legislation cannot be subject to any ‘reduction, modification, suspension, withdrawal or confiscation’ as a result of that residence (Article 10 (1)). Furthermore, Annex V lists several cases in which a condition of residence in the national territory cannot be set up against a claimant. Thus, under paragraph (4), any insured person who wishes to claim unemployment benefit in the United Kingdom is deemed to have been permanently resident in the United Kingdom in any period prior to the date of his application for benefit during which he was resident, insured or employed in the territory of another Member State. Again, under paragraph (7) (which no doubt refers to seamen) in the event of a worker subject to United Kingdom legislation being the victim of an accident after leaving the territory of one Member State while travelling, in the course of his employment, to the territory of another Member State, but before arriving there, his absence from the territory of the United Kingdom must be disregarded for the purposes of determining whether, by virtue of his employment, he was insured under British legislation. Finally, we must bear in mind paragraph (16) which was added by Regulation No 1209/76. Consequently, the residence clause must be waived in the case of a person such as the claimant and it would be a good thing if Annex V were amended appropriately. C — In the second question the National Insurance Commissioner asks whether, in contrast to an employed worker, a self-employed person insured under a scheme such as the British scheme is, either generally or in relation to the contingencies insured against, a ‘worker’ within the meaning of Article 1 (a) (i). For the purposes of the outcome of this action it would be unhelpful and premature to reply in the affirmative and to conclude that, as regards social security, the Community regulations consider that self-employed persons are, for all purposes and in all cases, in the same position as employed workers where they are subject to the same risks and the same contingencies and that they are covered by a compulsory insurance scheme applying to employed persons. It is sufficient to state, although it will be for the national court to say whether this is in fact the case and to give a final ruling on the exact status of the claimant, that in the United Kingdom the cooordination established by the legislature between the schemes covering employed and self-employed persons is such as to imply that a person such as the claimant, who was formerly employed and is now self-employed, is treated as an employed person. A further point arises from this question: does the assimilation of a class of persons for all aspects of a particular risk, for example, sickness, entail assimilation — and thus the application of Regulation No 1408/71 — as regards protection against all the other risks or contingencies from which all employed persons benefit? The concern of the Insurance Officer and of the National Insurance Commissioner, which I share, is to establish definite criteria which may be applied in cases other than the present. For my part, I would tend to accept the same solution for all the contingencies to which the regulation applies. This must be the case where assimilation extends to all the contingencies covered by the general scheme and where the effect of it has not been to create a separate scheme limited to that class of persons. Here again, however, it will be for the National Insurance Commissioner to rule whether this is in fact the case and the general reply which he is hoping to receive does not appear to me to be necessary in order to settle the particular case which is before him. D — In order to reply to the third question referred by the National Insurance Commissioner, it is necessary to consider whether, under the terms of the first indent to Article 1 (a) (ii) the claimant ‘can be identified as an employed person by virtue of the manner in which [the British] scheme is administered or financed’, by reason of the fact that his title to benefit is constituted ‘to a material extent’ by his having paid, or been credited with, contributions as an employed person. In the light of the reply which I have suggested it is no longer necessary for me to consider further the methods of administering and financing the scheme to which I have already referred. I consider that the criterion which takes account of the extent of the contributions paid as an employed person in relation to those paid as a self-employed person is too vague and imprecise. The pragmatic solution which consists in permitting the court to decide, in each individual case, on the basis of the extent of the contributions paid as an employed worker, must be dismissed on the ground that it creates legal uncertainty in an area in which the specific aim is to guarantee social security. For my part, I am inclined to think that once an insured person is entitled, under the British scheme, to a benefit made up, if only to a small extent, of the contributions which he has paid or with which he was credited as an employed person, he must be identified as a ‘worker’ for the purposes of the regulation. E — It is necessary to consider the fourth question referred to you by the National Insurance Commissioner only on the hypothesis either that the claimant voluntarily continued to pay contributions to the sickness insurance scheme during his short stay in France, although he. would no longer have been liable to do so in the United Kingdom had that contingency occurred in that country, or that his decision not to retire may be treated as an extension of his insurance on a voluntary basis. If a person who, in accordance with the desire of the British legislature, continues to pay contributions on a voluntary basis in order to insure himself against one or more of the contingencies covered by the branches dealt with in the regulation under a national social security scheme for the benefit of all residents, is a worker within the meaning of the regulation (Article 1 (a) (iii)), the same ought to apply a fortiori to a person who, having formerly been compulsorily insured against a contingency under a scheme for employed persons, is obliged to continue to insure himself against that same contingency. It is, however, unprofitable to continue an examination of this point since, as I have said, I consider that a worker such as the claimant must normally fall within the category referred to in Article 1 (a) (iii).