CELEX: C1999/121/25
Language: en
Date: 1999-05-01 00:00:00
Title: Case C-75/99: Reference for a preliminary ruling from the Bundessozialgericht (Federal Social Court) by order of that court of 21 January 1999 in the case of Edmund Thelen v. Bundesanstalt für Arbeit

1.5.1999                 EN                   Official Journal of the European Communities                                        C 121/13
2. If the answer to question 3(1) above is yes: in proceedings           liable, even where the journalists in question are not themselves
     by company Y against company X in the national court of             liable to contribute to the artists’ social insurance scheme.
     Member State A, is that court obliged, by virtue of the
     said Directive, to override any provision which prevents            In the Commission’s view, the artists’ social security charge
     reliance by Company Y on the substantive provisions of              objectively constitutes an employer’s contribution which ulti-
     those implementing rules?                                           mately has the effect, both for the marketing undertaking and
                                                                         for the artist of journalist concerned, of a social insurance
                                                                         contribution. That outcome, is so far as it concerns artists or
(1) Council Directive 86/653/EEC of 18 December 1986 on the              journalists who are insured, pursuant to Regulation (EEC)
    coordination of the laws of the Member States relating to            No 1408/71, under the social insurance scheme of another
    self-employed commercial agents (OJ L 382, 31.12.1986, p. 17).
                                                                         Member State, is inconsistent with the wording and purpose
                                                                         of that Regulation, according to which, in order to avoid
                                                                         double liability to pay social security contributions, persons
                                                                         liable to contribute to social security are in principle subject to
                                                                         the legislation of a single Member State only.
                                                                         Moreover, the artists’ social security charge is incompatible, in
                                                                         the form which it takes, with the principles of freedom of
Action brought on 25 February 1999 by the Commission                     establishment (Article 52 of the EC Treaty) and freedom to
of the European Communities against the Federal Repub-                   provide services (Article 59 of the EC Treaty). Where provisions
                            lic of Germany                               of Community law exempt an artist of journalist from the
                                                                         obligation to contribute to the — German — artists’ social
                                                                         insurance fund, the absence of the obligation to contribute is
                            (Case C-68/99)                               not based on particular characteristics of national legislative
                                                                         sovereignty and cannot be adjusted in accordance with purely
                           (1999/C 121/24)                               internal criteria (such as the prevention of possible distortions
                                                                         of competition).
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-             (1) OJ, English Special Edition 1971 (II), p. 416.
ties on 25 February 1999 by the Commission of the European
Communities, represented by Peter Hillenkamp, Legal Adviser,
of its Legal Service, and Andreas Buschmann, a national civil
servant on secondment to its Legal Service, with an address for
service in Luxembourg at the office of Carlos Gómez de la
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                         Reference for a preliminary ruling from the Bundessozial-
The applicant claims that the Court should:                              gericht (Federal Social Court) by order of that court of
                                                                         21 January 1999 in the case of Edmund Thelen v.
                                                                                             Bundesanstalt für Arbeit
a) Declare that, by applying Section 23 et seq. of the
     Künstlersozialversicherungsgesetz (law on social insurance
     for artists) inter alia to artists and journalists who reside                                  (Case C-75/99)
     in another EU Member State and normally pursue a
     self-employed activity both in that other Member State and                                    (1999/C 121/25)
     in the Federal Republic of Germany, and who are thus
     exclusively subject, as regards the social security system, to      Reference has been made to the Court of Justice of the
     the legislation of the Member State in the territory of             European Communities by an order of the Bundessozialgericht
     which they reside, the Federal Republic of Germany has              (Federal Social Court) of 21 January 1999, which was received
     failed to fulfil its obligations under Articles 51, 52 and/or       at the Court Registry on 3 March 1999, for a preliminary
     59 of the EC Treaty and Title II of Regulation (EC)                 ruling in the case of Edmund Thelen v. Bundesanstalt für
     No 1408/71 (1) (first sentence of Article 14a(2) in conjunc-        Arbeit on the following question:
     tion with Article 13(1) and 13(2)(b);
                                                                             Are Articles 6 and 7 of Regulation (EEC) No 1408/71 (1)
b) Order the Federal Republic of Germany to pay the costs.                   to be interpreted as meaning that, because of the principe
                                                                             of freedom of movement for workers, they do not preclude
                                                                             the continuance in force of a convention concluded
                                                                             between states in the field of unemployment insurance
Pleas in law and main arguments adduced in support:                          which is more advantageous for the insured person,
                                                                             although in consequence of the reference period
The funds of the German artists’ social insurance scheme are                 entitlement to unemployment insurance benefits can no
provided, as to half, by contributions made by the persons                   longer be derived from the period before the entry into
insured and, as to the other half, by an artists’ social security            force of the Regulation?
charge. The latter is levied in the form of a contribution
payable inter alia by press undertakings and other publishing
                                                                         (1) OJ, English Special Edition 1971 (II), p. 416.
houses and press agencies, and consists of a percentage of a
basis of assessment composed of the remuneration for artistic
or journalistic works or services paid to journalists by a person