F.C. Terhoeve v Inspecteur van de Belastingdienst Particulieren/Ondernemingen buitenland.
Date: 1999-01-26
26 It is settled case-law that the Treaty rules governing freedom of movement for persons and measures adopted to implement them cannot be applied to activities which have no factor linking them with any of the situations governed by Community law and which are confined in all respects within a single Member State (Case C-332/90 Steen v Deutsche Bundespost [1992] ECR I-341, paragraph 9; Case C-134/95 USSL No 47 di Biella v INAIL [1997] ECR I-195, paragraph 19; Joined Cases C-64/96 and C-65/96 Land Nordrhein-Westfalen v Uecker and Jacquet v Land Nordrhein-Westfalen [1997] ECR I-3171, paragraph 16; and Joined Cases C-225/95, C-226/95 and C-227/95 Kapasakalis and Others v Greek State [1998] ECR I-4239, paragraph 22).
27 However, as the Court has stated, in particular in Case C-419/92 Scholz v Opera Universitaria di Cagliari and Cinzia Porcedda [1994] ECR I-505, at paragraph 9, any Community national who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in another Member State falls within the scope of the aforesaid provisions.
28 It follows that, in the main proceedings, even though Mr Terhoeve, a Netherlands national, seeks to rely on the rules relating to freedom of movement for workers against the Netherlands authorities, that does not affect the application of those rules.  His complaint is precisely that he was placed at a disadvantage because he worked in another Member State.
29 The answer to the first question must therefore be that Article 48 of the Treaty and Article 7 of Regulation No 1612/68 may be relied on by a worker against the Member State of which he is a national where he has resided and been employed in another Member State.
Questions 2 and 3
34 However, while it is true that, in the absence of harmonisation at Community level, it is for the legislation of each Member State to determine the conditions governing the right or duty to be insured with a social security scheme, the Member States must nevertheless comply with Community law when exercising that power (see, in particular, Case C-120/95 Decker v Caisse de Maladie des Employés Privés [1998] ECR I-1831, paragraphs 22 and 23, and Case C-158/96 Kohll v Union des Caisses de Maladie [1998] ECR I-1931, paragraphs 18 and 19).
35 Thus, the fact that the national rules at issue in the main proceedings concern the financing of social security does not exclude the application of Treaty rules, in particular those relating to freedom of movement for workers.
36 As regards Article 48 of the Treaty, which it is appropriate to consider first, the Court has stated time and again that that provision implements a fundamental principle contained in Article 3(c) of the EC Treaty, under which, for the purposes set out in Article 2, the activities of the Community are to include the abolition, as between Member States, of obstacles to freedom of movement for persons (see, in particular, Case 118/75 Watson and Belmann [1976] ECR 1185, paragraph 16, and Case C-370/90 The Queen v Immigration Appeal Tribunal and Surinder Singh [1992] ECR I-4265, paragraph 15).
37 The Court has also held that the Treaty provisions relating to freedom of movement for persons are intended to facilitate the pursuit by Community nationals of occupational activities of all kinds throughout the Community, and preclude measures which might place Community nationals at a disadvantage when they wish to pursue an economic activity in the territory of another Member State (Case 143/87 Stanton v INASTI [1988] ECR 3877, paragraph 13; Singh, cited above, paragraph 16; and Case C-415/93 Union Royale Belge des Sociétés de Football Association and Others v Bosman [1995] ECR I-4921, paragraph 94).
38 In that context, nationals of Member States have in particular the right, which they derive directly from the Treaty, to leave their State of origin to enter the territory of another Member State and reside there in order there to pursue an economic activity (see, inter alia, Case C-363/89 Roux v Belgian State [1991] ECR I-273, paragraph 9; Singh, cited above, paragraph 17; and Bosman, cited above, paragraph 95).
39 Provisions which preclude or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement therefore constitute an obstacle to that freedom even if they apply without regard to the nationality of the workers concerned (Case C-10/90 Masgio v Bundesknappschaft [1991] ECR I-1119, paragraphs 18 and 19, and Bosman, cited above, paragraph 96).
44 As regards the first justification referred to, it should be noted that the Member States in principle retain the freedom to lay down the detailed rules for levying tax and social security contributions and may indeed pursue the objective of simplifying and coordinating those rules. Nevertheless, that objective, however desirable its pursuit may be, cannot justify undermining the rights which individuals derive from the Treaty provisions in which their fundamental freedoms are enshrined.
45 The same holds true for the second justification referred to.  Considerations of an administrative nature cannot justify derogation by a Member State from the rules of Community law. That principle applies with even greater force where the derogation in question amounts to preventing or restricting the exercise of one of the fundamental freedoms of Community law (see, to that effect, Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 54).
51 Secondly, in the absence of Community harmonisation of national laws, it is in principle for the Member States to specify the income to be taken into account when calculating social security contributions.
57 Furthermore, where national law lays down that a number of groups of persons are to be treated differently, in breach of Community law, the members of the group placed at a disadvantage must be treated in the same way and made subject to the same arrangements as the other persons concerned, arrangements which, for want of the correct application of Community law, remain the only valid point of reference (see, mutatis mutandis, Case 71/85 Netherlands v Federatie Nederlandse Vakbeweging [1986] ECR 3855; Case 286/85 McDermott and Cotter v Minister for Social Welfare and Attorney-General [1987] ECR 1453; Case C-102/88 Ruzius-Wilbrink v Bedrijfsvereniging voor Overheidsdiensten [1989] ECR 4311; Case C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591; and Case C-184/89 Nimz v Freie und Hansestadt Hamburg [1991] ECR I-297).