Opinion of Mr Advocate-General Mayras

Mr President,

Members of the Court,

The establishment of the Common Market postulated the free movement within the Community of workers who are nationals of the Member States. The implementation of this principle, stated by Article 48 of the Treaty of Rome, requires that in the field of social security the necessary measures be taken, in accordance with the rules established by Article 51 of the Treaty, with a view to instituting a system making it possible to ensure for migrant workers and their families payment of the benefits for persons residing within the territories of Member States.

This was particularly the objective of Regulation No 3 of the Council which, as from 1 October 1972, has been substituted by Regulation No 1408/71.

But these Community acts did not establish a uniform system of European law for migrants; they carried out a coordination of national laws.

Accordingly, it was essential for them to determine which law would be applicable, in particular in cases where the place of residence and the place of work are not located in one and the same State or when a worker pursues his activity in several Member States.

Examination of the question referred to you for a preliminary ruling by the Landessozialgericht of Baden-Württemberg, under Article 177 of the Treaty, will allow you to clarify your previous case law in this connection.

Mr Hubert Bentzinger, a German national residing at Weil/Rhein in the Federal Republic, divides his professional activities as an engineer between two companies:

After sustaining an accident at work on 8 September 1970 on a site of the French company, he applied for compensation to the Steinbruchs-Berufsgenossenschaft (Professional Social Insurance Fund for quarry accidents), a German Social Security agency, with registered offices at Hanover.

It was pointed out to him on 27 September 1971 that wage earners employed within the territory of a Member State, in this case France, are, by virtue of Article 12 of Regulation No 3, subject to the legislation of that State, even if they reside in another State, in this case Germany.

The Sozialgericht (Court on social question) of Freiburg-am-Brisgau, approached in the first instance, allowed the application of Mr Bentzinger on 21 March 1972, applying to his case the provisions of Article 13 (1) (c) of Regulation No 3 under the terms of which wage-earners normally pursuing their activity within the territory of several Member States are, with certain exceptions, subject to the legislation of the Member State within whose territory they reside.

On appeal, the Landessozialgericht of Baden-Württemberg suspended proceedings and, by order dated 21 September 1972, referred to you the following question:

Insofar as Regulation No 3 determines in Title II the national legislation applicable to the worker in the field of social security, it has as a guiding principle, as you held in your judgment of 5 December 1967 (Case 19/67, Van der Vecht, Rec. 1967, p. 445), the avoidance, in the interests both of workers and employers and of social funds, of any unnecessary plurality or confusion of benefits and liabilities arising from the simultaneous alternative application of several legislations.

Thus it aims at giving rise to a single system of conflict of laws and upholds the applicability of the legislation of a single Member State.

Moreover, this idea underlying Regulation No 3 has been clearly confirmed in the new Regulation No 1408/71 (Article 13 (1)).

Taking for the moment the original Regulation, with which the preliminary question is alone concerned, we find that the law applicable is in principle that of the place of work. This is explained by Article 12 of that Regulation which states:

But, Article 13 envisages a certain number of situations in which the law of the place of work must be set aside, without derogating from the principle of the applicability of a single legislation.

This Article thus opens up four categories of exceptions:

The situation which forms the subject of the main action falls within the field of application referred to in (c).

Mr Bentzinger, who resides in Germany, pursues his activity partly in that country and partly in France. But the difficulty arises from the fact that he works for two different employers — the firm Hupfer at Weil/Rhein and Grande Sablière at Saint-Louis.

Although the provision applicable concerns workers, other than those in transport, normally pursuing their activity in the territory of several Member States, it contains two sub-paragraphs which cover different situations insofar as the place of their residence is concerned:

This second sub-paragraph alone envisages the employment of the worker by several employers; the first makes no mention of this plurality.

Should it therefore be deduced that it is applicable only if the worker is in the service of a single undertaking? And, if more than one, that the law of the place of residence must be overridden by the general rule of Article 12 which causes the application of the law of the place of work to prevail?

In our opinion, such a solution is in no way imposed by the wording of the Regulation.

Secondly, it would be contrary to the principle of the application of a single legislation governing Regulation No 3 in the matter.

Furthermore, it would result in practical difficulties of application, contrary to the interest of workers.

Finally, it has been ruled out by the clear provisions of Regulation No 1408/71.

1. As to the Regulation itself, it should be pointed out that the first sub-paragraph of (c) makes no mention of the word employer, whether in the singular or plural. The only two criteria to which it refers are:

2. As the spirit of the Community rules is the avoidance of a plurality of applicable legislations, the exception provided for by Article 13 (1) (c) is aimed at substituting the law of the place of residence of the wage-earner for the law of the place of work, when that residence, is in the territory of a Member State where he partly pursues his professional or trade activity. In other words, the authors of the Regulation rightly considered that the principal centre of interest of the worker whose activity is divided between the territories of several States coincides with the place of his dwelling.

3. From the practical point of view, moreover, it compels recognition as a rule of common sense.

4. Finally, the system established since 1 October 1972 by Regulation No 1408/71, unambiguously adopts the application, in this case, of the law of the place of residence.

We conclude, therefore, that you should rule that, by virtue of this provision, wage-earners or assimilated workers normally pursuing their activity, in the territory of several Member States are subject to the legislation of the Member State in whose territory they reside, whether they are in the service of one or several employers.

1 Translated from the French.