D. H. M. Segers v Bestuur van de Bedrijfsvereniging voor Bank- en Verzekeringswezen, Groothandel en Vrije Beroepen.
Date: 1986-07-10
13 THE QUESTION SUBMITTED TO THE COURT CONCERNS A CASE IN WHICH THE REFUSAL TO GRANT BENEFITS IS BASED NOT ON THE NATIONALITY OF THE DIRECTOR BUT ON THE LOCATION OF THE REGISTERED OFFICE OF THE COMPANY WHICH HE DIRECTS . HOWEVER , AS FAR AS COMPANIES ARE CONCERNED , IT SHOULD BE RECALLED THAT ACCORDING TO THE JUDGMENT OF THE COURT OF 28 JANUARY 1986 ( CASE 270/83 COMMISSION V FRANCE ( 1986 ) ECR 273 ) THE RIGHT OF ESTABLISHMENT INCLUDES , PURSUANT TO ARTICLE 58 OF THE EEC TREATY , THE RIGHT OF COMPANIES OR FIRMS FORMED IN ACCORDANCE WITH THE LAW OF A MEMBER STATE AND HAVING THEIR REGISTERED OFFICE , CENTRAL ADMINISTRATION OR PRINCIPAL PLACE OF BUSINESS WITHIN THE COMMUNITY TO PURSUE THEIR ACTIVITIES IN ANOTHER MEMBER STATE THROUGH AN AGENCY , BRANCH OR SUBSIDIARY . WITH REGARD TO COMPANIES , IT SHOULD BE NOTED THAT IT IS THEIR REGISTERED OFFICE IN THE ABOVEMENTIONED SENSE THAT SERVES AS THE CONNECTING FACTOR WITH THE LEGAL SYSTEM OF A PARTICULAR STATE , AS DOES NATIONALITY IN THE CASE OF NATURAL PERSONS .
14 IN THAT RESPECT THE COURT WOULD OBSERVE THAT A COMPANY WHICH HAS BEEN FORMED IN ACCORDANCE WITH THE LAW OF ANOTHER MEMBER STATE AND WHICH CONDUCTS ITS BUSINESS THROUGH AN AGENCY , BRANCH OR SUBSIDIARY IN THE MEMBER STATE IN WHICH IT SEEKS TO ESTABLISH ITSELF CANNOT BE DEPRIVED OF THE BENEFIT OF THE RULE SET OUT ABOVE . AS THE COURT HAS ALREADY STATED , IN ITS JUDGMENT OF 28 JANUARY 1986 , CITED ABOVE , ACCEPTANCE OF THE PROPOSITION THAT THE MEMBER STATE IN WHICH A COMPANY SEEKS TO ESTABLISH ITSELF MAY FREELY APPLY TO IT A DIFFERENT TREATMENT SOLELY BY REASON OF THE FACT THAT ITS REGISTERED OFFICE IS SITUATED IN ANOTHER MEMBER STATE WOULD DEPRIVE ARTICLE 58 OF ALL MEANING .
15 IT IS ESTABLISHED THAT ENTITLEMENT TO REIMBURSEMENT OF SICKNESS COSTS PERTAINS TO A PERSON AND NOT TO A COMPANY . HOWEVER , THE REQUIREMENT THAT A COMPANY FORMED IN ACCORDANCE WITH THE LAW OF ANOTHER MEMBER STATE MUST BE ACCORDED THE SAME TREATMENT AS NATIONAL COMPANIES MEANS THAT THE EMPLOYEES OF THAT COMPANY MUST HAVE THE RIGHT TO BE AFFILIATED TO A SPECIFIC SOCIAL SECURITY SCHEME . DISCRIMINATION AGAINST EMPLOYEES IN CONNECTION WITH SOCIAL SECURITY PROTECTION INDIRECTLY RESTRICTS THE FREEDOM OF COMPANIES OF ANOTHER MEMBER STATE TO ESTABLISH THEMSELVES THROUGH AN AGENCY , BRANCH OR SUBSIDIARY IN THE MEMBER STATE CONCERNED . THAT PROPOSITION IS SUPPORTED BY THE FACT THAT ACCORDING TO THE COUNCIL ' S GENERAL PROGRAMME FOR THE ABOLITION OF RESTRICTIONS ON FREEDOM OF ESTABLISHMENT OF 18 DECEMBER 1961 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , SECOND SERIES IX , P . 7 ), WHICH PROVIDES USEFUL GUIDANCE FOR THE IMPLEMENTATION OF THE RELEVANT PROVISIONS OF THE TREATY ( SEE JUDGMENTS OF 28 APRIL 1977 , CASE 71/76 THIEFFRY ( 1977 ) ECR 765 AND OF 18 JUNE 1985 IN CASE 197/84 STEINHAUSER ( 1985 ) ECR 1819 ), ALL PROVISIONS AND ADMINISTRATIVE PRACTICES WHICH ' DENY OR RESTRICT THE RIGHT TO PARTICIPATE IN SOCIAL SECURITY SCHEMES , IN PARTICULAR SICKNESS . . . INSURANCE SCHEMES '  ARE TO BE REGARDED AS RESTRICTIONS ON THE FREEDOM OF ESTABLISHMENT .
16 AS REGARDS THE DOUBT EXPRESSED BY THE NATIONAL COURT CONCERNING THE SIGNIFICANCE OF THE FACT THAT THE ENGLISH COMPANY CLEARLY DOES NOT CONDUCT BUSINESS IN THE UNITED KINGDOM , IT SHOULD BE NOTED THAT FOR THE APPLICATION OF THE PROVISIONS ON THE RIGHT OF ESTABLISHMENT , ARTICLE 58 REQUIRES ONLY THAT THE COMPANIES BE FORMED IN ACCORDANCE WITH THE LAW OF A MEMBER STATE AND HAVE THEIR REGISTERED OFFICE , CENTRAL ADMINISTRATION OR PRINCIPAL PLACE OF BUSINESS WITHIN THE COMMUNITY . PROVIDED THAT THOSE REQUIREMENTS ARE SATISFIED , THE FACT THAT THE COMPANY CONDUCTS ITS BUSINESS THROUGH AN AGENCY , BRANCH OR SUBSIDIARY SOLELY IN ANOTHER MEMBER STATE IS IMMATERIAL .