Institut national d'assurances sociales pour travailleurs indépendants (Inasti) v Claude Hervein and Hervillier SA (C-393/99) and Guy Lorthiois and Comtexbel SA (C-394/99).
Date: 2002-03-19
49 Similarly, in the absence of due justification, such as the provision of additional social security cover to the persons concerned, Article 52 of the Treaty precludes legislation of a Member State which requires contributions to be made to the scheme for self-employed persons by persons already working as self-employed persons in another Member State where they have their habitual residence and are affiliated to a social security scheme (judgment in Kemmler, cited above, paragraphs 12 and 13). Such legislation disadvantages the pursuit of occupational activity in a second Member State because the social security contributions it entails yield no return for the persons concerned.
50 However, the Treaty did not provide for the harmonisation of the social security legislation of the Member States. In particular, as regards employees, Article 51 provides only for the coordination of the legislation. Substantive and procedural differences between the social security systems of individual Member States, and hence in the rights of persons working there, are therefore unaffected by that provision (see, in particular, Case 41/84 Pinna [1986] ECR 1, paragraph 20, De Jaeck, cited above, paragraph 18, and Hervein I, cited above, paragraph 16).
51 Accordingly, the Treaty offers no guarantee to a worker that extending his activities into more than one Member State or transferring them to another Member State will be neutral as regards social security. Given the disparities in the social security legislation of the Member States, such an extension or transfer may be to the worker's advantage in terms of social security or not, according to circumstance. It follows that, in principle, any disadvantage, by comparison with the situation of a worker who pursues all his activities in one Member State, resulting from the extension or transfer of his activities into or to one or more other Member States and from his being subject to additional social security legislation is not contrary to Articles 48 and 52 of the Treaty if that legislation does not place that worker at a disadvantage as compared with those who pursue all their activities in the Member State where it applies or as compared with those who were already subject to it and if it does not simply result in the payment of social security contributions on which there is no return.
52 Thus, the system put in place by Regulation No 1408/71 is merely a system of coordination, concerning inter alia, in Title II of that regulation, the determination of the legislation applicable to employed and self-employed workers who make use, under various circumstances, of their right to freedom of movement. It is inherent in such a system that the level of contributions to be paid in respect of the pursuit of the same activity will differ according to the Member State where that activity is wholly or partly pursued or according to the social security legislation to which that activity is subject (see, to that effect, Case C-68/99 Commission v Germany [2001] ECR I-1865, paragraph 29).
61 It was in pursuit of the same objective that the Council adopted Regulation No 3811/86, applicable as from 1 January 1987. First, by inserting a new paragraph 2 in Article 14d, providing that the person referred to in Article 14c(b) is to be treated, for the purposes of determining the rates of contributions to be charged to self-employed workers under the legislation of the Member State in whose territory he is self-employed, as if he pursued his paid employment in the territory of that Member State, the Council reminded the Member States of their obligation to treat workers subject to the provisions of Article 14c(b) without discrimination as compared with workers pursuing all their activities in a single Member State. Second, in adopting several provisions, listed in Article 2 of Regulation No 3811/86, intended to facilitate the aggregation of benefits provided under the two sets of applicable legislation, the Council reminded the Member States of their obligation to ensure that no social security contribution is to be charged if it does not yield any return.
64 Thus, in a situation such as that in which Mr Lorthiois finds himself, where, given the extent of his activities in Belgium, the contributions he is required to pay do not afford him any additional social security cover, Article 52 clearly precludes a claim for such contributions from him (see Kemmler, cited above, paragraphs 12 and 13; see also, to that effect, Joined Cases 62/81 and 63/81 Seco and Desquenne & Giral [1982] ECR 223, paragraph 10).