Judgment of the Court (Fourth Chamber) of  26 January 2006  in Case C-2/05: Reference for a preliminary ruling from the Arbeidshof te Brussel in Rijksdienst voor Sociale Zekerheid v Herbosch Kiere NV (Social security for migrant workers — Determination of the legislation applicable — Workers posted to another Member State — Scope of E 101 certificate)
Date: 2006-04-08
Institutions: Court of Justice
Subjects: EU Member State, form, interpretation of the law, labour mobility, social security, worker (EU)

8.4.2006

EN

Official Journal of the European Union

C 86/9

Article 13A(1)(g) and (h) of Sixth Council Directive 77/388/EEC of
17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes — Common system of value added
read together with Article
tax: uniform basis of assessment,
13A(2)(b) thereof, must be interpreted as meaning that services as an
intermediary between persons seeking, and persons offering, a child-
care service, provided by a body governed by public law or an organi-
sation recognised as charitable by the Member State concerned, may
benefit from exemption under those provisions only where:

— the childcare service itself meets the conditions for exemption laid

down in those provisions;

— that service is of such a nature or quality that parents could not
be assured of obtaining a service of the same value without the
assistance of an intermediary service such as that which is the
subject-matter of the dispute in the main proceedings;

— the basic purpose of the intermediary services is not to obtain
additional income for the service provider by carrying out transac-
tions which are in direct competition with those of commercial
enterprises liable for value added tax.

(1) OJ C 284, 20.11.2004.

Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave
a judgment on 9 February 2006, in which it ruled:

1. Council Regulation (EC) No 1348/2000 of 29 May 2000 on
the service in the Member States of judicial and extrajudicial docu-
ments in civil or commercial matters must be interpreted as
meaning that
it does not establish any hierarchy between the
method of transmission and service under Articles 4 to 11 thereof
and that under Article 14 thereof and, consequently, it is possible
to serve a judicial document by one or other or both of those
methods.

2. Regulation No 1348/2000 must be interpreted as meaning that,
where transmission and service are effected by both the method
under Articles 4 to 11 thereof and the method under Article 14
thereof, in order to determine vis-à-vis the person on whom service
is effected the point from which time starts to run for the purposes
of a procedural time-limit linked to effecting service, reference must
be made to the date of the first service validly effected.

(1) OJ C 19, 22.01.2005.

JUDGMENT OF THE COURT

(Third Chamber)

of 9 February 2006

in Case C-473/04: Reference for a preliminary ruling from
the Hof van Cassatie in Plumex v Young Sports NV (1)

(Judicial cooperation — Regulation (EC) No 1348/2000 —
Articles 4 to 11 and 14 — Service of judicial documents —
Service through agencies — Service by post — Relationship
between the methods of transmission and service — Prece-
dence — Time-limit for an appeal)

(2006/C 86/15)

(Language of the case: Dutch)

In Case C-473/04: reference for a preliminary ruling under
Articles 68 EC and 234 EC from the Hof van Cassatie
(Belgium), made by decision of 22 October 2004, received at
the Court on 9 November 2004, in the proceedings between
Plumex and Young Sports NV — the Court (Third Chamber),
composed of A. Rosas, President of the Chamber, J. Malenovský
(Rapporteur), A. La Pergola, S. von Bahr and A. Borg Barthet,

JUDGMENT OF THE COURT

(Fourth Chamber)

of 26 January 2006

in Case C-2/05: Reference for a preliminary ruling from
in Rijksdienst voor Sociale
the Arbeidshof

te Brussel

Zekerheid v Herbosch Kiere NV (1)

(Social security for migrant workers — Determination of the
legislation applicable — Workers posted to another Member
State — Scope of E 101 certificate)

(2006/C 86/16)

(Language of the case: Dutch)

In Case C-2/05: Reference for a preliminary ruling under
Article 234 EC from the Arbeidshof te Brussel (Belgium), made
by decision of 23 December 2004, received at the Court on 5
January 2005,
in the proceedings between Rijksdienst voor
Sociale Zekerheid and Herbosch Kiere NV — the Court (Fourth
Chamber), composed of N. Colneric (Rapporteur), acting for
the President of the Fourth Chamber, J.N. Cunha Rodrigues and
K. Lenaerts, Judges; D. Ruiz-Jarabo Colomer, Advocate General;
R. Grass, Registrar, gave a judgment on 26 January 2006, in
which it ruled:

C 86/10

EN

Official Journal of the European Union

8.4.2006

As long as it has not been withdrawn or declared invalid by the
authorities of the Member State which issued it, an E 101 certificate
issued under Article 11(1)(a) of Regulation (EEC) No 574/72 of the
Council of 21 March 1972 laying down the procedure for imple-
menting Regulation No 1408/71,
in the version amended and
updated by Council Regulation (EEC) No 2001/83 of 2 June 1983,
as amended by Council Regulation (EEC) No 2195/91 of 25 June
1991, binds the competent institution and the courts of the Member
State in which the workers are posted. Consequently, a court of the
host Member State of such workers is not entitled to scrutinise the
validity of an E 101 certificate as regards the certification of the
matters on the basis of which such a certificate was issued, in particu-
lar the existence of a direct relationship, within the meaning of Article
14(1)(a) of Regulation (EEC) No 1408/71 of the Council of 14 June
1971 on the application of social security schemes to employed
persons, self-employed persons and members of their families moving
within the Community, in the version amended and updated by Regu-
lation No 2001/83, as amended by Regulation No 2195/91, read
in conjunction with paragraph 1 of Decision No 128 of the Admin-
istrative Commission on Social Security for Migrant Workers of
17 October 1985 concerning the application of Articles 14(1)(a) and
14b(1) of Regulation No 1408/71, between the undertaking estab-
lished in a Member State and the workers which it has posted to
another Member State, during the period of their posting.

(1) OJ C 82 of 02.04.2005.

Action brought on 23 December 2005 by Commission of
the European Communities against the Federal Republic of
Germany

(Case C-456/05)

(2006/C 86/17)

(Language of the case: German)

An action against
the Federal Republic of Germany was
brought before the Court of Justice of the European Commu-
nities on 23 December 2005 by Commission of the European
Communities, represented by Hans Støvlbæk and Sabine Grün-
heid, acting as Agents, with an address for service in Luxem-
bourg.

The applicant claims that the Court should:

1. declare that the Federal Republic of Germany has failed to
fulfil its obligations under Article 43 of the EC Treaty by
applying the transitional rules and rules to protect estab-

lished rights, on the basis of which psychotherapists obtain
admission or a permit to practise the profession indepen-
dently of the applicable rules governing admission to prac-
tise the profession, only to those psychotherapists who have
carried out their activities under German statutory sickness
insurance schemes and by not
the
comparable or similar professional activities of psychothera-
pists in other Member States.

taking into account

2. order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Under the German transitional rule concerning admission to
practise the profession of psychotherapist
independently of
need, a psychotherapist is only authorised to practise in a place
of his choice without there being a need for him if he has in
the past carried out, under a statutory sickness insurance
scheme, previous activities which are worthy of protection.
According to the Commission that rule infringes the right of
establishment enshrined in Article 43 of the EC Treaty in that
only activities under a German statutory sickness insurance
scheme are taken into account in examining previous activities
which are worthy of protection and the issue of whether the
therapeutic care given to insured persons in other Member
States is of equal value or is to be regarded as being similar is
not examined.

The provisions of the EC Treaty regarding the right of establish-
ment are applicable in this case. The fact that the rule in
dispute is part of German Social Security Law does not
preclude that. Although Member States are entitled to develop
freely their social security systems and also to settle the issue of
the conditions under which psychotherapists can take part in
the care provided under health insurance schemes, those rules
should be in conformity with Community law provisions and,
in particular, with the fundamental freedoms guaranteed by the
EC Treaty. This German transitional rule does not meet that
requirement, as it lends itself to deterring persons from other
Member States who wish to establish themselves and who have
previously primarily treated insured persons in other Member
States, from moving their practices to Germany.

This German rule does not fulfil the justifying conditions which
were established by the Court with respect to national measures
which impede the right of establishment guaranteed by the
Treaty. On the one hand it causes indirect discrimination as its
nature is such that it tends to affect psychotherapists from
other Member States more than German psychotherapists.
the
Whereas German psychotherapists in the territory of
country have, namely, as a rule, also begun practising under a
German statutory sickness insurance scheme, psychotherapists
from other Member States have carried out no corresponding