Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 11 January 1996. - Inasti (Institut National d'Assurances Sociales pour Travailleurs Indépendants) v Hans Kemmler. - Reference for a preliminary ruling: Tribunal du travail de Tournai - Belgium. - Freedom of establishment - Social security for self-employed persons working in two Member States. - Case C-53/95.



European Court reports 1996 Page I-00703



Opinion of the Advocate-General

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1 The Tribunal du Travail, Tournai (Belgium) seeks a preliminary ruling on the interpretation of the provisions of the EEC Treaty on the free movement of persons and services in order to give judgment in relation to events which occurred before the entry into force on 1 July 1982 of Council Regulation (EEC) No 1390/81 of 12 May 1981 extending to self-employed persons and members of their families Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and to members of their families moving within the Community (1) (hereinafter `Regulation No 1390/81').

2 The facts of the case before the national court may be summarized as follows: the defendant, Hans Kemmler, is a German lawyer who was habitually resident and practised his profession in Germany, while at the same time maintaining a residence in Belgium. He was also a member of the Bar of Brussels, where he practised in partnership with other lawyers. According to the file, the Institut National d'Assurances Sociales pour Travailleurs Indépendants (hereinafter `Inasti'), the plaintiff in the main proceedings, called on Mr Kemmler to pay BFR 331 271 by way of unpaid contributions in respect of 1981 and the first half of 1982. The defendant declined to pay those contributions on the ground that during those periods he was affiliated to the German compulsory social security scheme for self-employed persons, a fact which he has proved.

3 In order to determine the dispute, the national court considers that an answer is needed to the following question:

`Is the effect of Articles 48, 51, 52 and 59 of the Treaty of Rome that before 1 July 1982 a Member State (in this case Belgium) could not require nationals of another Member State (in this case the former Federal Republic of Germany) who were pursuing the same professional activity as self-employed persons both in its territory and in the former Federal Republic of Germany, where they were habitually resident and subject to the social security scheme, to pay contributions to the Belgian social security scheme for self-employed persons, particularly since such contributions could not entitle them to any additional social security cover?'

4 In short, the national court wishes to know whether, before that date, a Member State was entitled to require a national of another Member State, who practised the same profession in two Member States as a self-employed person, to pay contributions to its social security scheme for self-employed persons, having regard to the fact that he was already affiliated to an equivalent social security scheme in the other Member State, where he was habitually resident, and that the payment of contributions to a second social security scheme would not have afforded him any additional protection.

5 Only the Commission has submitted observations in this case. It points out, first, that, pursuant to Article 2 thereof, Regulation No 1390/81 does not give rise to any rights as regards the period prior to its entry into force on 1 July 1982. Since the periods for which contributions are claimed in the main proceedings preceded that date, the Commission takes the view that Regulation No 1390/81 is not applicable to them and that, in order to answer the question submitted, it is necessary to refer to the provisions of the Treaty, in particular Article 52, since Mr Kemmler has been self-employed in both Germany and Belgium.

6 The Commission refers to previous decisions of the Court of Justice on Article 52 of the Treaty which it considers to be relevant to the present question, in particular the judgments in Stanton (2) and Wolf, (3) and it suggests that the answer to be given to the national court is that Article 52 of the Treaty precludes a Member State from requiring persons pursuing an activity of the same kind in another Member State, where they are habitually resident and are affiliated to that State's social security scheme for self-employed persons, to pay contributions to its own social security scheme for self-employed persons where that obligation affords them no additional social protection.

7 Regulation No 1390/81 extended to self-employed persons certain principles set out in 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 (4) (hereinafter `Regulation No 1408/71') which had previously been applicable only to employed persons. One of those principles is that, as far as social security is concerned, a worker is to be subject to the legislation of only one Member State.

8 Mr Kemmler's specific circumstances are covered by Article 14a(2) of Regulation No 1408/71, as amended by Regulation No 1390/81, according to which:

`A person normally self-employed in the territory of two or more Member States shall be subject to the legislation of the Member State in whose territory he resides if he pursues any part of his activity in the territory of that Member State. ...'

9 Regulation No 1390/81, by virtue of Article 2 thereof, conferred no rights in respect of periods prior to its entry into force. Since it entered into force on 1 July 1982, that is to say after the period for which Inasti is calling for the payment of contributions, its provisions are not applicable to the main proceedings - which, for that reason, must be determined exclusively by reference to the provisions of the Treaty.

10 In view of the account of the facts given by the national court, I consider, like the Commission, that Mr Kemmler's situation is not covered by Articles 48 and 51 of the Treaty, which refer to freedom of movement for workers, or by Article 59, on the freedom to provide services, but that it is covered by Article 52, which upholds the right of establishment in the following terms:

`Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be abolished by progressive stages in the course of the transitional period. Such progressive abolition shall also apply to restrictions on the setting up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.

Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of Article 58, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.'

11 The Court of Justice has already held - in Klopp (5) - that `freedom of establishment is not confined to the right to create a single establishment within the Community ... [but also] includes the freedom to set up and maintain, subject to observance of the professional rules of conduct, more than one place of work within the Community'.

12 In 1988 the Court of Justice gave judgment in Stanton (6) and Wolf. (7) The facts which gave rise to the questions submitted by the national courts - also Belgian - in those cases were very similar to those of this case. The issue in those cases, as in this, was the application of the same national legislation, namely Article 3(1) of Royal Decree No 38 of 27 July 1967 governing social security for self-employed persons. Pursuant to that provision, any natural person pursuing an occupational activity otherwise than under a contract of employment must pay contributions to the social security scheme. In short, the obligation to pay contributions derives from the activity carried on, not from the place where the person concerned works.

13 In those cases, the Belgian authorities required a British national, employed in the United Kingdom, and two German nationals, employed in Germany, who at the same time held the office of directors of Belgian companies and were therefore regarded as self-employed persons in Belgium, to pay contributions to the social security scheme for self-employed persons. The periods for which such payment was required also antedated the entry into force of Regulation No 1390/81. The only difference between those cases and Mr Kemmler's lies in the fact that the latter's activity in the other Member State, Germany in his case, was pursued as a self-employed person

14 In answering the question from the national court, I shall first consider whether the national legislation contravenes the principle that equal treatment is to be accorded to nationals of other Member States laid down in the second paragraph of Article 52 of the Treaty as regards access to activities as a self-employed person and the exercise thereof; secondly, whether it may constitute a restriction on freedom of establishment; and finally, if so, whether it should be regarded as justified.

15 As far as the principle of equal treatment is concerned, my view is the same as that expressed in Stanton and Wolf, namely that that national legislation applies without distinction to all self-employed persons working in Belgium and gives rise to no discrimination, not even indirectly, on grounds of nationality. First, the obligation to pay contributions arises merely from the fact of being self-employed in that country and, secondly, there is no reason why a provision to that effect should have an impact solely or mainly on nationals of other Member States.

16 Secondly, it must be borne in mind that according to the judgments in Stanton (8) and Wolf, (9) `the first paragraph of Article 52 of the Treaty requires the abolition of all restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State. It is settled law that it is a directly applicable rule of Community law.' The Court infers from this that the Member States are required to comply with that provision even where - as in those two cases and in Mr Kemmler's case - in the absence of Community legislation in force at the material time governing the social security status of self-employed persons, the Member States were still competent to legislate in that area.

17 It should also be borne in mind that `the provisions of the Treaty relating to the free movement of persons are ... intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude national legislation which might place Community citizens at a disadvantage when they wish to extend their activities beyond the territory of a single Member State'. (10)

18 In view of that case-law, it is beyond doubt that legislation of a Member State, of the kind described, which imposes the obligation to pay contributions to its scheme for self-employed persons on any person engaged in an economic activity on his own account in its territory, without any possibility of an exemption from the payment of such contributions for someone who also works on his own account in another Member State and is already contributing to an equivalent social security scheme in that State, adversely affects those who, like Mr Kemmler, extend their professional activity beyond the latter's territory.

19 As we know, `... as one of the fundamental principles of the Treaty, freedom of movement for persons may be restricted only by rules which are justified in the general interest and are applied to all persons and undertakings pursuing those activities in the territory of the State in question, in so far as that interest is not already safeguarded by the rules to which a Community national is subject in the Member State where he is established'. (11) It is necessary, therefore, to check whether in the case of Mr Kemmler, who was already paying contributions in Germany, there are compelling reasons in the public interest such as to justify the obligation to pay contributions in Belgium as well.

20 I consider that, in the event that there is a public interest in a Member State in ensuring that self-employed persons working in its territory are affiliated to its social security scheme, it must consist in the concern to ensure that such persons do not lack cover when certain risks materialize. Since, in the same period, Mr Kemmler was already covered by an equivalent social security scheme in another Member State, it follows that the application of the Belgian provision is not justified by reasons relating to the public interest in his case.

21 I should also add that the application of the contested national provision to the defendant in the main proceedings would amount to a tax burden for him, in that it would afford him no additional social protection.

22 It follows that the application of a national rule like the one at issue to a national of another Member State in circumstances like those of Mr Kemmler, making it more burdensome for him to pursue his profession in the territory of more than one Member State, constitutes an unjustified obstacle to his freedom of establishment, and is therefore incompatible with Article 52 of the Treaty.

Conclusion

23 In view of the foregoing considerations, I suggest that the Court of Justice give the following answer to the question referred to it by the Tribunal du Travail, Tournai:

Article 52 of the EEC Treaty must be interpreted as precluding a Member State from requiring a national of another Member State, who is pursuing the same activity simultaneously in both States, to pay contributions to its social security scheme for self-employed persons, where the person concerned demonstrates that, over the same period, he was affiliated to an equivalent social security scheme in the other Member State, where he habitually resides, and that the payment of contributions to a second social security scheme cannot give rise to any additional social protection for him.

(1) - OJ 1981 L 143, p. 1.

(2) - Case 143/87 [1988] ECR 3877.

(3) - Joined Cases 154/87 and 155/87 [1988] ECR 3897.

(4) - OJ, English Special Edition 1971 (II), p. 416.

(5) - Case 107/83 Klopp [1984] ECR 2971, paragraph 19.

(6) - See note 2 above.

(7) - See note 3 above.

(8) - See note 2 above, paragraph 10.

(9) - See note 3 above, paragraph 10.

(10) - See Stanton and Wolf, cited in notes 2 and 3 above, respectively, paragraph 13 in both cases.

(11) - Case C-106/91 Ramrath [1992] ECR I-3351, paragraph 29.