A. Salemink v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen.
Date: 2012-01-17
31. In that regard, reference must be made to the rules and principles of international law relating to the legal regime applicable to the continental shelf.
35. Since a Member State has sovereignty over the continental shelf adjacent to it — albeit functional and limited sovereignty (see, to that effect, Case C‑111/05 Aktiebolaget NN  [2007] ECR I‑2697, paragraph 59) — work carried out on fixed or floating installations positioned on the continental shelf, in the context of the prospecting and/or exploitation of natural resources, is to be regarded as work carried out in the territory of that State for the purposes of applying EU law (see, to that effect, Case C‑37/00 Weber  [2002] ECR I‑2013, paragraph 36, and Case C‑6/04 Commission  v United Kingdom  [2005] ECR I‑9017, paragraph 117).
38. In that regard, 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, the provision 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 stated on several occasions in its case-law, it is for the legislation of each Member State to lay down those conditions (see, inter alia, Case 275/81 Koks v Raad van Arbeid  [1982] ECR 3013, and C‑227/03 van Pommeren‑Bourgondiën  [2005] ECR I‑6101, paragraph 33).
39. However, although Member States retain the power to organise the conditions of affiliation to their social security schemes, they must none the less, when exercising that power, comply with EU law and, in particular, the Treaty provisions on freedom of movement for workers (see, to that effect, Case C‑2/89 Kits van Heijningen  [1990] ECR I‑1755, paragraph 20, and Case C‑135/99 Elsen [2000] ECR I‑10409, paragraph 33).
40. Consequently, those conditions may not have the effect of excluding from the scope of national legislation, such as that at issue in the main proceedings, persons to whom that legislation applies pursuant to Regulation No 1408/71 and the compulsory insurance schemes must be compatible with the provisions of Article 39 EC (see, to that effect, Kits van Heijningen , paragraph 20, and van Pommeren-Bourgondiën , paragraph 39).
41. 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 not be complied with if the residence condition laid down by the legislation of the Member State in whose territory the person is employed for affiliation to the compulsory 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 that provision is to replace the residence condition with a condition based on employment in the territory of the Member State concerned (see Kits van Heijningen , paragraph 21).
44. Even though the Court, in paragraph 40 of van Pommeren‑Bourgondiën , did not rule out that the residence requirement — as a condition for continuing to qualify for compulsory insurance in respect of some branches of social security — might be compatible with Article 39 EC, the option of taking out voluntary insurance open to Mr Salemink cannot invalidate the finding in paragraph 43 above. The steps which non-resident workers wishing to take out voluntary insurance must take on their own initiative, and the constraints associated with such insurance, such as complying with time-limits for applying for insurance, are factors which place non-resident workers — who have the option only of voluntary insurance — in a less favourable position than resident workers, who are covered by compulsory insurance.
45. Consequently, the answer to the question referred is that Article 13(2)(a) of Regulation No 1408/71 and Article 39 EC must be interpreted as precluding an employee, working on a fixed installation on the continental shelf adjacent to a Member State, from being in a position in which he is not compulsorily insured under national statutory employee insurance in that Member State solely on the ground that he is not resident there but in another Member State.
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