Barry Banks and Others v Theatre royal de la Monnaie.
Date: 2000-03-30
25 In that respect, it should be pointed out that Article 14a(1)(a) of Regulation 1408/71 imposes the preliminary requirement that the person concerned be normally self-employed in the territory of a Member State. That obligation assumes that the person concerned habitually carries out significant activities in the territory of the Member State where he is established [see, by analogy, with regard to Article 14(1)(a) of Regulation No 1408/71 concerning the posting of employed persons, Case C-202/97 Fitzwilliam Executive Search v Bestuur van het Landelijk Instituut Sociale Verzekeringen [2000] ECR I-0000, paragraph 45]. Thus, such a person must already have been carrying out his activity for some time at the moment when he wishes to take advantage of the provision in question. Similarly, during the period in which he works in the territory of another Member State, that person must continue to maintain, in his State of origin, the necessary means to carry on his activity so as to be in a position to pursue it on his return.
38 It should be pointed out that the principle of sincere cooperation, laid down in Article 5 of the EC Treaty (now Article 10 EC), requires the issuing institution to carry out a proper assessment of the facts relevant to application of the rules for determining the applicable social security legislation and, consequently, to guarantee the correctness of the information contained in an E 101 certificate (see Fitzwilliam Executive Search, cited above, paragraph 51).
39 It is clear from the obligations to cooperate arising from Article 5 of the Treaty that those obligations would not be fulfilled - and the aims of Article 14a(1)(a) of Regulation No 1408/71 and Article 11(a) of Regulation No 574/72 would be thwarted - if the competent institution of the Member State in which the work assignment is carried out were to consider that it was not bound by the certificate and made the self-employed person subject to its own social security system (Fitzwilliam Executive Search, paragraph 52).
40 Consequently, in so far as an E 101 certificate establishes a presumption that the self-employed person concerned is properly affiliated to the social security system of the Member State in which he is established, it is binding on the competent institution of the Member State in which that person carries out a work assignment (Fitzwilliam Executive Search, paragraph 53).
41 If that were not so, the principle that self-employed persons are to be covered by only one social security system would be undermined, as would the predictability of the system to be applied and, consequently, legal certainty. In cases in which it was difficult to determine the system applicable, each of the competent institutions of the two Member States concerned would be inclined to take the view, to the detriment of the self-employed person concerned, that their own social security system was applicable (Fitzwilliam Executive Search, paragraph 54).
42 Consequently, so long as an E 101 certificate is not withdrawn or declared invalid, the competent institution of a Member State in which the self-employed person carries out a work assignment must take account of the fact that that person is already subject to the social security legislation of the Member State in which he is established, and that institution cannot therefore subject the self-employed person in question to its own social security system (Fitzwilliam Executive Search, paragraph 55).
43 However, it is incumbent on the competent institution of the Member State which issued the E 101 certificate to reconsider whether it was properly issued and, if appropriate, to withdraw the certificate if the competent institution of the Member State in which the self-employed person carries out a work assignment expresses doubts as to the correctness of the facts on which the certificate is based and, consequently, of the information contained therein, in particular because the information does not correspond to the requirements of Article 14a(1)(a) of Regulation No 1408/71 (Fitzwilliam Executive Search, paragraph 56).
44 Should the institutions concerned not reach agreement on, in particular, the question how the particular facts of a specific case are to be assessed and consequently on the question whether that case is covered by Article 14a(1)(a) of Regulation No 1408/71, it is open to them to refer the matter to the Administrative Commission (Fitzwilliam Executive Search, paragraph 57).
45 If the Administrative Commission does not succeed in reconciling the points of view of the competent institutions on the question of the legislation applicable, it is open to the Member State in the territory of which the self-employed person carried out a work assignment, without prejudice to any legal remedies existing in the Member State to which the issuing institution belongs, at the very least to bring infringement proceedings under Article 170 of the EC Treaty (now Article 227 EC) in order to enable the Court to examine in those proceedings the question of the legislation applicable to that self-employed person and, consequently, the correctness of the information contained in the E 101 certificate (Fitzwilliam Executive Search, paragraph 58).
47 Since, moreover, the E 101 certificate is binding on that competent institution, there can be no justification for the person who calls on that worker's services not to act upon that certificate. If he has doubts as to the validity of the certificate, that person must however inform the institution in question.
52 In that respect, it should first be noted that Article 11a of Regulation No 574/72 does not impose any time-limit for the issue of the certificate referred to therein.
53 Moreover, when issuing the E 101 certificate pursuant to Article 11a, the competent institution of a Member State does no more than state that the self-employed person concerned remains subject to the legislation of that Member State throughout a given period in the course of which he carries out a work assignment in the territory of another Member State. Although it should preferably be made before the beginning of the period concerned, such a statement may also be made during that period or indeed after its expiry.
54 There is therefore nothing to prevent the E 101 certificate from producing retroactive effects, according to the circumstances.
55 Thus, Decision No 126 of the Administrative Commission of 17 October 1985 concerning the application of Articles 14(1)(a), 14a(1)(a), 14b(1) and (2) of Regulation No 1408/71 (OJ 1986 C 141, p. 3) provides that the institution referred to in Articles 11 and 11a of Regulation No 574/72 is required to issue a certificate concerning the applicable legislation (the E 101 certificate), even if issue of that certificate is requested after the beginning of the activity carried out in the territory of the State other than the competent State by the worker concerned.
56 Moreover, the Court implicitly acknowledged that the E 101 certificate may produce retroactive effects when it held that the option which Article 17 of Regulation No 1408/71 confers on Member States to agree, in the interest of a worker, to apply a legislation different from that designated by Articles 13 to 16 also applies in respect of periods that have already expired (Case 101/83 Raad van Arbeid v Brusse [1984] ECR 2223, paragraphs 20 and 21; Case C-454/93 Rijksdienst voor Arbeidsvoorziening v Van Gestel [1995] ECR I-1707, paragraph 29). Articles 11 and 11a of Regulation No 574/72 also provide that, in such a situation, an E 101 certificate is to be issued.
57 The answer to the second part of the third question must therefore be that the E 101 certificate, issued in accordance with Article 11a of Regulation No 574/72, may have retroactive effect.