Court of Justice 24-06-1975 ECLI:EU:C:1975:87

The first sentence of Article 13 (1) (c) (as amended) of Regulation No 3

‘Wage-earners and assimilated workers, other than those covered by paragraph (b), whose employment is normally carried on in the territory of more than one Member State, shall be subject to the legislation of that Member State in whose territory they have their permanent residence.’

Article 11 (2) (as amended) of Regulation No 4

‘Where, by virtue of Article 13 (b) or (c) of the Regulation, German legislation is applicable to a worker whose employer is not located within the territory of the Federal Republic of Germany, that legislation shall be applied as if that worker were employed in the place of his permanent residence.’

The Caisse appealed against this decision, chiefly on the ground that it misrepresented the scope of the second and third sentences of the said Article 13 (1) (c) of Regulation No 3 according to which:

‘If they have no permanent residence in the territory of any of the Member States where they, carry on their employment, they shall be subject to the legislation of that Member State in whose territory the employer(s) or the registered office of the undertaking(s) employing them is situated. If such workers, having their permanent residence in the territory of a Member State where they carry on no employment, are attached to two or more employers situated in the territory of different Member States or to two or more undertakings having their registered office in the territory of different Member States, they shall be subject to the legislation of the Member State in whose territory they have their permanent residence’.

The Caisse further maintains that the decision fails to take into account the fact that the charge for the service had been shared equally between all the members of the orchestra and that it was expressly contested that the leader of the band was a trader.

The Cour de Cassation, which heard the appeal, decided that a question of the interpretation of Community law was involved, and by an order of 4 December 1974, which reached the Court on 29 January 1975, it decided to stay proceedings and to refer the following questions to the Court for a ruling:

• whether German social security legislation is applicable to a German musician, resident in Germany, whether or not affiliated in the Federal Republic of Germany to a social security institution, either as an employee or as an independent worker, who occasionally appears as a public performer in France where such performances would normally entail his being subject to the French social security system for wage-earners and assimilated workers;

• if so, whether the application of the Community regulations has the effect of exempting a French employer from the contributions which would normally be due from him to the French social security institutions in respect of the employment in France of public performers and of making it more advantageous to him to employ German musicians than French musicians;

• whether or not, in the case of an accident at work or on the way to or from work, in France, the French social security institutions would not have to pay benefits to German musicians.’

The Caisse, represented by Mr Claude Peignot, Advocate at the Conseil d'Etat and at the Cour de Cassation, the Association, represented by Mr Jean Guillaume Nicolas, Advocate at the Conseil d'Etat and at the Cour de Cassation, and the Commission of the European Communities, represented by its Legal Adviser Mademoiselle Marie-José Jonczy, acting as Agent, submitted written observations in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate-General the Court decided to open the oral proceedings without holding a preparatory inquiry.

A — Observations submitted by the Caisse

The Caisse recalls that under the provisions of Article L 242-1 of the French Social Security Code:

‘Public performers … who are regarded as subject to Articles 29 (s) and 29 (t) of the First Book of the Code du Travail shall be compulsorily affiliated to social insurance schemes whatever their nationality.

The obligations of an employer shall be assumed in respect of the public performers … referred to in the previous subparagraph, by undertakings, institutions, services, associations, groups or persons who call upon their services, even if only occasionally.’

Article 29 (s) of the First Book of the Code du Travail establishes a presumption of a contract of employment in respect of the contract engaging an artiste or of a musician which can only be rebutted by proof that the party concerned is a trader. Applying these provisions, the Caisse decided that there was a contract of work between the Association and the members of the German band and that therefore the said Association was liable to pay the contributions relating to the employment of these people. The contrary view, which was upheld by the Commission de Première Instance, would result in a flagrant breach of Regulation No 3 and also of Regulation No 4. These regulations have been adopted in order to enable wage-earners working in more than one Member State to aggregate periods of affiliation to the social security schemes of these States for the acquisition or for the calculation of their rights to benefits. It is not possible to maintain on the basis of Article 13 (1) (c) (as amended) of Regulation No 3 and 11 (2) (as amended) of Regulation No 4 that the French employer is not obliged to make contributions when employing foreign workers with their permanent residence on French territory: these provisions merely provide that, for the acquisition of rights to benefits, reference should be made to the legislation of the State of permanent residence. The view upheld by the Commission de Premiere Instance can only be justified if the leader of the band was an impresario, a trader affiliated as an employer to a German social security body and paying the contributions relating to the employment of his musicians.

The Caisse therefore believes that the question put by the court making the reference requires an affirmative answer only if the leader of the orchestra and his musicians are affiliated to a German social security body as an employer and as independent workers or as wage-earners respectively. The answer to the second and third questions is dependent on the one given to the first question.

B — Observations submitted by the Association

The Association maintains that since Community regulations are directly applicable in Member States and take precedence over national law, any conflict between the regulations and the national law is resolved by the non-application of the latter. The Association recalls the text of Article 13 (1) (c) (as amended) of Regulation No 3 and observes that it is clear from the use of the words ‘applicable legislation’ that its scope is not restricted to ‘benefits’ and that it also applies to contributions. Therefore, since in the present case:

• the musicians concerned are, because of their nationality, subject to Community law and have their permanent residence in the Federal Republic of Germany,

• by virtue ot Article 11 (2) of Regulation No 4 whereby the worker is presumed to be employed in the place of his permanent residence, the competent social institution is the ‘Kaufmännische Krankenkasse Halle’ in the Federal Republic of Germany,

the application of the French social security legislation is excluded by Community law.

Finally the Association proposes the following answers to the questions referred:

1. the German social security legislation is applicable to a German musician, having his permanent residence in Germany, who is affiliated in the Federal Republic of Germany to a social security institution either as an employee or as an independent worker and who occasionally appears as a public performer in France where such performances would normally entail his being subject to the French social security system for wage-earners and assimilated workers;

2. the application ot the Community regulations has the effect of exempting a French employer from the contributions which would normally be due from him to the French social security institutions in respect of the employment in France of public performers;

3. in the case of an accident at work or on the way to or from work, in France, the French social security institutions do not have to pay benefits to German musicians’.

C — Observations submitted by the Commission of the European Communities

The Commission maintains that the provision of Community law which the Cour de Cassation seeks to have interpreted is mainly Article 13 (1) (c) (as amended) of Regulation No 3. Article 11 (2) (as amended) of Regulation No 4 of the Council contains nothing enabling the applicable national legislation to be determined, but presupposes that this has already been determined by application of Article 13 (1) (b) or (c). In view of this, the questions referred should be read as follows:

1. In order to determine the applicable legislation, must Article 13 (1) (c) (as amended) of Regulation No 3 of the Council concerning social security for migrant workers be interpreted as meaning that the social security legislation of the Member State, in the territory of which a worker has his permanent residence, is applicable to him whether or not he is affiliated in that State to a social security institution, either as an employee or as an independent worker, if he occasionally carries out on the territory of another Member State an activity which would normally entail his being subject to the social security scheme for wage-earners and assimilated workers of the latter State?

2. Does the expression “subject to the legislation” in the said Article 13 (1) (c) of Regulation No 3 only refer to the right to benefits, or all the conditions giving rise to acquisition of the right to benefits, including contributions?

3. Does the application of the said Article 13 (1) (c) imply obligations on the part of the social security institutions in the country of employment where the worker has no permanent residence in the case of an accident at work or on the way to or from work in the territory of that country of employment?’

Taking each question on its merits, the Commission makes the following observations: