Bestuur van de Sociale Verzekeringsbank v M. G. J. Kits van Heijningen.
Date: 1990-05-03
9 The expression "employed persons" used in Article 2(1 ) of Regulation No 1408/71 is defined in Article 1(a ). It means any person who is insured under one of the social security schemes referred to in Article 1(a ) for the contingencies and on the conditions mentioned in that provision .
10 There is nothing in Article 1(a ) or Article 2(1 ) of Regulation No 1408/71 which permits certain categories of persons to be excluded from the scope of the regulation on the basis of the amount of time they devote to their activities . Consequently, a person must be considered to be covered by Regulation No 1408/71 if he meets the conditions laid down in Article 1(a ) in conjunction with Article 2(1 ) of the regulation, irrespective of the amount of time which that person devotes to his activities .
12 As the Court has pointed out on a number of occasions, the provisions of Title II of Regulation No 1408/71, which include Article 13, constitute a complete system of conflict rules ( see, in particular, the judgment of 10 July 1986 in Case 60/85 Luijten v Raad van Arbeid (( 1986 )) ECR 2365 ). Those provisions are intended not only to prevent the simultaneous application of a number of national legislative systems and the complications which might ensue, but also to ensure that the persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation which is applicable to them .
14 Article 13(2)(a ) makes no distinction between full-time and part-time employment . Moreover, the objective which it pursues would be frustrated if it were to be considered that the legislation of the Member State in question was applicable only during the periods when the person concerned pursued his activity, and not during those periods when he did not .
15 Consequently, the reply to the second question must be that Article 13(2)(a ) of Regulation No 1408/71 must be interpreted as meaning that a person covered by that regulation who is employed part-time in the territory of a Member State is subject to the legislation of that State both on the days on which he pursues that activity and on the days on which he does not .
Question 3
19 The sole purpose of Article 13(2)(a ) of Regulation No 1408/71 is to determine the national legislation applicable to persons employed in the territory of a Member State . As such, it is not intended to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme . As the Court has pointed out several times, it is for the legislature of each Member State to lay down those conditions ( see, in particular, the judgment of 23 September 1982 in Case 275/81 Koks v Raad van Arbeid (( 1982 )) ECR 3013 ).
20 However, when the Member States lay down the conditions creating the right or the obligation to become affiliated to a social security scheme, they are under an obligation to comply with the provisions of the Community law in force ( see, in particular, the judgment in Koks, cited above ). In particular, those conditions may not have the effect of excluding from the scope of the legislation at issue persons to whom it applies pursuant to Regulation No 1408/71 .
21 Article 13(2)(a ) of Regulation No 1408/71 expressly provides that a person employed in the territory of one Member State is to be subject to the legislation of that State "even if he resides in the territory of another Member State ". That provision would have no practical effect if the residence condition laid down by the legislation of the Member State in whose territory the person is employed for affiliation to the insurance scheme which it establishes could be relied on against the persons referred to in Article 13(2)(a ). With regard to those persons, the effect of Article 13(2)(a ) is to replace the residency condition with a condition based on employment in the territory of the Member State concerned .
22 Consequently, the answer to the fourth question must be that the effect of Article 13(2)(a ) of Regulation No 1408/71 is that a provision of the applicable national legislation pursuant to which cover by the insurance scheme established by that legislation is conditional on residence in the Member State in whose territory the activity as an employed person is pursued may not be relied on against the persons referred to in Article 13(2)(a ).
Question 5