Philippe Derouin v Union pour le recouvrement des cotisations de sécurité sociale et d’allocations familiales de Paris - Région parisienne (Urssaf de Paris - Région parisienne).
Date: 2008-04-03
20. In that regard, it must be borne in mind that the objective of Regulation No 1408/71, as stated in the second and fourth recitals in the preamble, is to ensure free movement of employed and self‑employed persons within the European Community, while respecting the special characteristics of national social security legislation. To that end, as is clear from the fifth, sixth and tenth recitals, that regulation upholds the principle of equality of treatment of workers under the various national legislation and seeks to guarantee the equality of treatment of all workers occupied on the territory of a Member State as effectively as possible and not to penalise workers who exercise their right to free movement. The system put in place by Regulation No 1408/71 is merely a system of coordination, concerning inter alia the determination of the legislation applicable to employed and self‑employed persons who make use, under various circumstances, of their right to freedom of movement (Case C‑493/04 Piatkowski  [2006] ECR I‑2369, paragraphs 19 and 20, and Case C‑50/05 Nikula  [2006] ECR I‑7029, paragraph 20).
22. Concerning, second, the applicability of Regulation No 1408/71 to the CSG and the CRDS, the Court has held that those contributions fall within the scope of that regulation. The Court essentially found that it could not agree with the proposition that, since the CSG and the CRDS are really to be categorised as taxes, they fall outside the scope of the regulation. It added that the fact that a levy is categorised as a tax under national legislation does not mean that, as regards that regulation, that same levy cannot be regarded as falling within its scope (see, to that effect, Case C‑34/98 Commission  v France  [2000] ECR I‑995, paragraphs 33 and 34, and Case C‑169/98 Commission  v France  [2000] ECR I‑1049, paragraphs 31 and 32). Moreover, it should be noted that the question referred by the national court assumes that the contributions at issue fall within the scope of Regulation No 1408/71.
23. In addition, the Court held that Community law does not detract from the power of the Member States to organise their social security systems (see Case C-385/99 Müller-Fauré and van Riet  [2003] ECR I‑4509, paragraph 100 and the case‑law cited).
24. Concerning more specifically the determination of the tax base for social contributions, according to settled case‑law, in the absence of harmonisation at Community level, it is for the legislation of the Member State concerned to determine the income to be taken into account when calculating those contributions (see, to that effect, Nikula , paragraph 24 and the case‑law cited).
25. It is, however, essential, when the Member State concerned exercises that power, that it comply with Community law (see, to that effect, in particular, Case C‑18/95 Terhoeve  [1999] ECR I‑345, paragraph 34, and Case C‑227/03 van Pommeren‑Bourgondiën  [2005] ECR I‑6101, paragraph 39). The power of Member States is thus not unlimited, since they are, in particular, required to respect the spirit and the principles of Regulation No 1408/71, including the single State principle applicable to social security, to ensure that a person is not penalised for exercising his right to free movement and to satisfy themselves that the system thus created does not deprive that person of social protection.
27. As a result, as Community law now stands, a Member State is entitled to forgo, unilaterally or in the context of tax treaty such as the Double Taxation Convention, the inclusion in the tax base for contributions such as the CSG and the CRDS of income earned in another Member State by a resident self‑employed person in a situation such as that of the applicant in the main proceedings. Although it is established that no provision of Regulation No 1408/71 prohibits a Member State from calculating the amount of the social contributions of a resident on the basis of his total income (see, to that effect, Nikula , paragraph 31), clearly no provision of that regulation requires it to do so.