E.J.M. de Jaeck v Staatssecretaris van Financiën.
Date: 1997-01-30
11 Article 13(1), the first article in Title II of the regulation, which concerns the determination of the legislation applicable, provides that, subject to Article 14c, persons to whom the regulation applies are to be subject to the legislation of a single Member State only. Thus, according to Article 14a(2) of the regulation, a person who is normally self-employed in the territory of two or more Member States is to be subject to the legislation of the Member State in whose territory he resides.
17 It is settled case-law that in interpreting a provision of Community law it is necessary to consider not only its wording but also, where appropriate, the context in which it occurs and the objects of the rules of which it is part (see, in particular, Case 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12).
18 Article 51 of the EC Treaty, which the regulation implements, provides for the coordination, not the harmonization, of the legislations of the Member States. 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 v Caisse d'Allocations Familiales de la Savoie [1986] ECR 1, paragraph 20).
19 So, in order to define the persons who may rely upon the provisions on the coordination of the national social security schemes which it establishes, the regulation refers to persons who are insured under those schemes. Articles 1(a) and 2(1) together provide that the regulation is applicable to employed or self-employed persons who are or have been subject to the legislation of one or more Member States, and employed or self-employed persons must be understood as meaning persons who are insured as one or the other under a social security scheme.  Thus, as the Commission rightly pointed out, the terms `employed person' and `self-employed person' in the regulation refer to the definitions given them by Member States' social security legislation, regardless of the nature of the activity for the purposes of employment law.
22 In those circumstances, although the provisions of Title II refer expressly to `persons who are employed' (or `engaged in paid employment') (`personnes qui exercent une activité salariée') or who are `self-employed' (`personnes qui exercent une activité non-salariée') rather than to `employed' or `self-employed persons' (`travailleurs salariés'/`non-salariés'), a logical and consistent interpretation of the scope ratione personae of the regulation and of the system of rules of conflict of laws which it establishes requires the terms in question of Title II to be interpreted in the light of the definitions in Article 1(a) of the regulation.
23 Accordingly, just as the description `employed person' or `self-employed person' for the purposes of Articles 1(a) and 2(1) of the regulation depends on the national social security scheme under which the person is insured, `a person who is employed' (or `engaged in paid employment') and `a person who is self-employed' for the purposes of Title II of the regulation should be understood to refer to activities deemed such by the legislation applicable in the field of social security in the Member State in whose territory those activities are pursued.
25 The Court has held that the term `worker' as used in the Treaty, and in particular in Article 48, is not to be defined by reference to the national laws of the Member States but has a Community meaning.  Were it otherwise, the application of the Community rules on freedom of movement for workers might be jeopardized, since the meaning of the term could be decided upon and modified unilaterally, without any control by the Community institutions, by the Member States, which would thus be able to exclude at will certain categories of persons from the benefit of the Treaty (see, in particular, Case 105/84 Foreningen af Arbejdsledere i Danmark v Danmols Inventar [1985] ECR 2639, paragraph 24).
26 Consequently, the Court considered that the term `worker' must be defined in accordance with the objective criteria which characterize the employment relationship, taking into account the rights and duties of the persons concerned, the essential characteristic of the employment relationship being that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration (see, most recently, Case C-107/94 Asscher v Staatssecretaris van Financiën [1996] ECR I-3089, paragraph 25).
27 In the present case, the purpose of the provisions of Title II of the regulation is not to confer on the persons to which it refers special rights which, in certain circumstances, the Member States may deny them.  As the Court has held in regard to Article 13(2)(a), those provisions are solely intended to determine the national legislation applicable and not to define the conditions creating the right or the obligation to become affiliated to a social security scheme (Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraph 19).
29 In addition, as the Commission has correctly submitted, the interpretation favoured by the Netherlands Government would have the disadvantage that in certain cases persons insured as employed or self-employed persons under a national social security scheme, and so falling within the scope ratione personae of the regulation, could not have the conflict rules of Title II applied to them because they did not fall within the scope of Article 48 or Article 52 of the Treaty.  This would be the case, for example, where an insured person pursues a professional or trade activity on such a small scale that it is to be regarded as purely marginal and ancillary (Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035, paragraph 17, and Asscher, paragraph 25).
30 It is true that according to the case-law of the Court the provisions of Title II of the regulation govern only the situations to which they refer, and a person who falls within the personal scope of the regulation may not be in one of those situations (see, in particular, Case C-245/88 Daalmeijer v Bestuur van de Sociale Verzekeringsbank [1991] ECR I-555, paragraphs 11 and 12).  The proper application of the regulation nevertheless demands that as far as possible its provisions concerning the scope of its application ratione personae and those concerning the determination of the legislation applicable should be interpreted coherently.
34 In the light of those considerations the reply to the first question put by the national court should therefore be that for the purposes of Articles 14a and 14c of the regulation, `employed' and `self-employed' should be understood to refer to activities which are regarded as such for the purposes of the social security legislation of the Member State in whose territory those activities are pursued.
The second question
36 It is settled case-law that it is for the legislation of each Member State to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch of such a scheme, provided that there is no discrimination in that regard between nationals of the host State and nationals of the other Member States (see, in particular, Case 110/79 Coonan v Insurance Officer [1980] ECR 1445, paragraph 12, and Daalmeijer, paragraph 15).
39 As the Court has pointed out in paragraph 12 of this judgment, according to Article 14c(1)(b) of the regulation, in the cases referred to in Annex VII a person who is employed in one Member State and self-employed in another Member State is subject simultaneously to the legislation of each of those States.  He is therefore required to pay such contributions as may be required of him by the legislation of each State.
40 However, as the Netherlands Government and the Commission have correctly observed, each of the Member States concerned can levy contributions only on the part of the income obtained in its territory.  Article 14c(1)(b) of the regulation provides that in the cases referred to in Annex VII the legislation of each State shall apply only in regard to the activity pursued on its territory.