Judgment of the Court of 5 May 1977. - H.O.A.G.M. Perenboom v Inspecteur der directe belastingen of Nijmegen. - Reference for a preliminary ruling: Hoge Raad - Netherlands. - Case 102-76.



European Court reports 1977 Page 00815

Greek special edition Page 00259

Portuguese special edition Page 00307



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

SOCIAL SECURITY FOR MIGRANT WORKERS - WORK PERFORMED IN ANOTHER MEMBER STATE - PAYMENT OF CONTRIBUTIONS ON REMUNERATION REQUIRED BY THE STATE OF RESIDENCE - NOT PERMISSIBLE

( REGULATION NO 3 OF THE COUNCIL , ARTICLE 12 , REGULATION NO 1408/71 OF THE COUNCIL , ARTICLE 13 )

Summary

BOTH ARTICLE 12 OF REGULATION NO 3 AND ARTICLE 13 OF REGULATION NO 1408/71 PREVENT THE STATE OF RESIDENCE FROM REQUIRING PAYMENT , UNDER ITS SOCIAL LEGISLATION , OF CONTRIBUTIONS ON THE REMUNERATION RECEIVED BY A WORKER IN RESPECT OF WORK PERFORMED IN ANOTHER MEMBER STATE AND THEREFORE SUBJECT TO THE SOCIAL LEGISLATION OF THAT STATE .

Parties

IN CASE 102/76

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HOGE RAAD OF THE NETHERLANDS FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

H.O.A.G.M . PERENBOOM , NIJMEGEN ,

AND

INSPECTEUR DER DIRECTE BELASTINGEN ( INSPECTOR OF DIRECT TAXES ) OF NIJMEGEN ,

Subject of the case

ON THE INTERPRETATION OF CERTAIN PROVISIONS OF REGULATIONS NOS 3 AND 1408/71 OF THE COUNCIL IN RELATION TO THE OBLIGATION , IMPOSED ON AN EMPLOYED PERSON IN THE MEMBER STATE IN WHICH HE RESIDES , TO PAY CONTRIBUTIONS ON WAGES EARNED IN ANOTHER MEMBER STATE WHICH ARE SUBJECT , IN THAT STATE , TO ASSESSMENT TO SOCIAL SECURITY CONTRIBUTIONS ,

Grounds

1 BY ORDER OF 13 OCTOBER 1976 , WHICH REACHED THE COURT ON 21 OCTOBER 1976 , THE HOGE RAAD OF THE NETHERLANDS HAS REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF ARTICLE 12 OF REGULATION NO 3 ( JO 1958 , NO 30/561 OF 16 DECEMBER 1958 ) AND OF ARTICLE 13 OF REGULATION NO 1405/71 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THOSE QUESTIONS HAVE BEEN REFERRED IN THE CONTEXT OF A DISPUTE BETWEEN THE NETHERLANDS ADMINISTRATION AND A NETHERLANDS WORKER WHO , ALTHOUGH HE WAS RESIDENT IN THE NETHERLANDS IN 1972 , WORKED , DURING THE COURSE OF THAT SAME YEAR , IN THE FEDERAL REPUBLIC OF GERMANY , FIRST FROM 14 JUNE TO 18 AUGUST AND THEN FROM 2 OCTOBER TO 21 DECEMBER .

3 IT APPEARS FROM THE FILE IN THE CASE THAT THE WORKER WAS COVERED BY THE SOCIAL LEGISLATION OF THE FEDERAL REPUBLIC OF GERMANY AND PAID CONTRIBUTIONS IN RESPECT OF THE SAID PERIODS OF WORK , WHILE FOR THE REMAINDER OF THE YEAR HE WAS SUBJECT TO THE NETHERLANDS GENERAL INSURANCE SCHEME ( ' VOLKSVERZEKERINGEN ' ), WHICH IS APPLICABLE TO ALL PERSONS BETWEEN THE AGES OF 15 AND 65 WHO ARE RESIDENT IN THE NETHERLANDS OR WHO , ALTHOUGH NOT SO RESIDENT , ARE EMPLOYED ON THE TERRITORY OF THE SAID STATE .

4 BECAUSE HE WAS SUBJECT TO THAT SCHEME , THE WORKER PAID TAXES UNDER THE LEGISLATION OF THE STATE OF RESIDENCE BY WAY OF CONTRIBUTIONS ON THE SALARY RECEIVED IN THE STATE IN WHICH HE WAS EMPLOYED , IN PROPORTION TO THE PART OF THE YEAR DURING WHICH HE DID NOT WORK IN THAT STATE .

5 THE PERSON CONCERNED CONTESTED THE LEGALITY OF THAT TAXATION , ARGUING IN PARTICULAR THAT SINCE HE WAS TAXED IN THE STATE IN WHICH HE WAS EMPLOYED , ON THE BASIS OF THE SALARY WHICH HE RECEIVED THERE , HE CANNOT ALSO BE REQUIRED TO PAY CONTRIBUTIONS IN RESPECT OF A PART OF THAT INCOME IN THE STATE OF RESIDENCE AND THUS BE SUBJECTED TO DOUBLE TAXATION , WHICH IS CONTRARY TO THE GENERAL PRINCIPLES OF LAW AND UNACCEPTABLE FROM THE POINT OF VIEW OF COMMUNITY LAW .

6 THE COMPETENT NATIONAL AUTHORITY HAS OBSERVED , ON THE CONTRARY , THAT FOR THE PURPOSES OF THE APPLICATION OF THE NETHERLANDS GENERAL INSURANCE SCHEME IT DOES NOT MATTER , IN DETERMINING THE INCOME LIABLE TO TAX UNDER THAT SCHEME , WHETHER THAT INCOME AROSE IN THE NETHERLANDS OR IN ANOTHER STATE .

7 BY THE FIRST QUESTION , THE NATIONAL COURT ASKS THE COURT TO STATE WHETHER , IN THE CASE OF A WORKER WHO HAS BEEN EMPLOYED DURING A PART OF THE YEAR IN A MEMBER STATE OTHER THAN THE STATE OF RESIDENCE AND HAS BEEN SUBJECT , DURING THAT PERIOD , TO THE SOCIAL LEGISLATION OF THE STATE OF EMPLOYMENT , WHILE BEING SUBJECT TO THE SOCIAL LEGISLATION OF THE STATE OF RESIDENCE FOR THE REMAINDER OF THE YEAR , ARTICLE 12 OF REGULATION NO 3 PERMITS THE SALARY RECEIVED BY THAT WORKER AND TAXED IN THE STATE IN WHICH HE WAS EMPLOYED , IN ACCORDANCE WITH THE SOCIAL LEGISLATION APPLICABLE THERE , ALSO TO BE TAXED BY WAY OF CONTRIBUTIONS IN THE STATE OF RESIDENCE IN PROPORTION TO THE PART OF THE YEAR DURING WHICH THE PERSON CONCERNED WAS NOT WORKING IN THE STATE IN WHICH HE WAS EMPLOYED .

8 BY ITS SECOND QUESTION , THE NATIONAL COURT PUTS THE SAME QUESTION IN RELATION TO THE INTERPRETATION OF ARTICLE 13 OF REGULATION NO 1408/71 .

9 THOSE TWO QUESTIONS MUST BE EXAMINED JOINTLY .

10 ARTICLE 12 OF REGULATION NO 3 PROVIDES AS FOLLOWS : ' SAVE AS OTHERWISE PROVIDED UNDER THIS HEAD , WAGE-EARNERS OR ASSIMILATED WORKERS EMPLOYED IN THE TERRITORY OF ONE MEMBER STATE SHALL BE SUBJECT TO THE LEGISLATION OF THAT STATE EVEN IF THEY RESIDE IN THE TERRITORY OF ANOTHER MEMBER STATE . . . ' .

11 ARTICLE 13 ( 1 ) OF REGULATION NO 1408/71 , WHICH PROVIDES THAT A WORKER ' SHALL BE SUBJECT TO THE LEGISLATION OF A SINGLE MEMBER STATE ONLY ' , EXCLUDES ANY POSSIBILITY OF THE OVERLAPPING OF SEVERAL NATIONAL LEGISLATIONS IN RESPECT OF ONE AND THE SAME PERIOD .

12 MOREOVER , IT IS PERFECTLY CLEAR THAT IN THE SITUATION ENVISAGED BY THE NATIONAL COURT THE WORKER WAS NOT SUBJECT TO THE GENERAL INSURANCE LEGISLATION OF THE STATE OF RESIDENCE IN RESPECT OF THE PERIOD DURING WHICH HE WORKED IN THE OTHER MEMBER STATE AND BY VIRTUE OF WHICH HE WAS SUBJECT TO THE SOCIAL LEGISLATION OF THAT STATE .

13 THE FACT THAT A WORKER IS REQUIRED TO PAY , IN RESPECT OF THE SAME EARNED INCOME , SOCIAL CHARGES ARISING UNDER THE APPLICATION OF SEVERAL NATIONAL LEGISLATIONS , ALTHOUGH HE CAN BE AN INSURED PERSON ONLY IN RESPECT OF ONE OF THOSE LEGISLATIONS , INVOLVES THE WORKER IN PAYMENT OF CONTRIBUTIONS TWICE OVER , CONTRARY TO THE PROVISIONS OF REGULATION NO 3 AND OF REGULATION NO 1408/71 CITED ABOVE .

14 ACCORDINGLY , SINCE THE SOCIAL LEGISLATION OF THE MEMBER STATE OF RESIDENCE IS NOT APPLICABLE IN RESPECT OF PERIODS OF WORK PERFORMED IN ANOTHER MEMBER STATE , THE REMUNERATION RECEIVED BY A WORKER FOR THAT WORK DOES NOT CONSTITUTE A BASIS OF ASSESSMENT FOR CONTRIBUTIONS LEVIED , EVEN PARTIALLY , UNDER THAT LEGISLATION AND IS EXEMPT , THEREFORE , FROM THE SOCIAL CHARGES ARISING FROM ITS APPLICATION .

15 FOR THESE REASONS , THE ANSWER TO THE QUESTIONS REFERRED IS THAT BOTH ARTICLE 12 OF REGULATION NO 3 AND ARTICLE 13 OF REGULATION NO 1408/71 PREVENT THE STATE OF RESIDENCE FROM REQUIRING PAYMENT , UNDER ITS SOCIAL LEGISLATION , OF CONTRIBUTIONS ON THE REMUNERATION RECEIVED BY A WORKER IN RESPECT OF WORK PERFORMED IN ANOTHER MEMBER STATE AND THEREFORE SUBJECT TO THE SOCIAL LEGISLATION OF THAT STATE .

Decision on costs

COSTS

16 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

17 AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE HOGE RAAD OF THE NETHERLANDS BY ORDER OF 13 OCTOBER 1976 , HEREBY RULES :

BOTH ARTICLE 12 OF REGULATION NO 3 AND ARTICLE 13 OF REGULATION NO 1408/71 PREVENT THE STATE OF RESIDENCE FROM REQUIRING PAYMENT , UNDER ITS SOCIAL LEGISLATION , OF CONTRIBUTIONS ON THE REMUNERATION RECEIVED BY A WORKER IN RESPECT OF WORK PERFORMED IN ANOTHER MEMBER STATE AND THEREFORE SUBJECT TO THE SOCIAL LEGISLATION OF THAT STATE .