JUDGMENT OF 24. 6. 1975 —CASE 8/75 CAISSE PRIMAIRE D'ASSURANCE MALADIE SELESTAT v FOOT-BALL CLUB D'ANDLAU

In Case 8/75 Reference to the Court under Article 177 of the EEC Treaty by the Cour de Cassation of France, Social Chamber, for a preliminary ruling in the case pending before that court between

THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart (Presidents of Chambers), A. M. Donner, R. Monaco (Rapporteur), P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe, Judges, Advocate-General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

I — Facts and written procedure

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

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

II — Written observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Observations submitted by the Caisse

B — Observations submitted by the Association

C — Observations submitted by the Commission of the European Communities

(a) The first question

(b) The second question

(c) The third question

III — Oral procedure

Grounds of judgment

The first question

The second question

The third question

Costs

I —. Facts and written procedure

1. In order to provide music for three dances organized by it on 14 February, 11 April and 17 May 1970, the Associadon du Foot-ball Club d'Andlau (hereinafter referred to as the Association) called upon the services of a band composed of five musicians of German nationality, ordinarily resident in the Federal Republic of Germany. Andlau is a commune situated in the Departement of Bas-Rhin. The musician responsible for the leadership of the group was affiliated to a recognized private fund, called Kaufmannische Krankenkasse Halle in Freiburg.

—. 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.

II —. Written observations submitted in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. Observations submitted by the Caisse

B —. Observations submitted by the Association

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

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?

(a). The first question

(b). The second question

(c). The third question

1. The social security legislation of a Member State in the territory of which a worker has his permanent residence is only applicable to him under the first sentence of Article 13 (1) (c) (as amended) of Regulation No 3, if he also works in the territory of a Member State other than that of his permanent residence and if he is regarded as a wage-earner or assimilated worker in the State of his permanent residence, and if he works in the territory of the other Member State habitually rather than occasionally.

2. The expression subject to the legislation in the first sentence of the said Article 13 (1) (c) of Regulation No 3 not only implies the right to benefits provided by the legislation of the Member State concerned, but also all the obligations which this social security legislation imposes in the same circumstances on nationals of this State.

3. A wage-earner or assimilated worker who is subject to the legislation of a Member State by virtue of the first sentence of the said Article 13 (1) (c) of Regulation No 3 and who is the victim of an accident at work in the territory of another Member State where he carries out part of his work, shall, at the expense of the competent institution of the first Member State, in accordance with Article 29 (1) and (7) of Regulation No 3, receive the benefits in kind provided for by the legislation of the second State, and the cash benefits provided by the legislation applied by the competent institution. An accident on the way to or from work which, occurs in the territory of a Member State other than the competent Member State shall be considered as occurring in the territory of the competent State.

III —. Oral procedure

1. By an order dated 4 December 1974, which reached the Court Registry on 29 January 1975, the Cour de Cassation of France referred to the Court, pursuant to Article 177 of the EEC Treaty, questions relating to the interpretation of certain provisions of Regulation No 3 of the Council concerning social security for migrant workers and its implementing Regulation No 4.

2. These questions were raised in the course of a case brought before that court relating to a demand for social security contributions under the French general social security scheme made to the French employer of five musicians of German nationality, having their permanent residence in the Federal Republic of Germany, and who made appearances in France in 1970 at three balls organized by the Association du Foot-Ball Club d'Andlau.

3. The first question asks 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.

4. Article 12 (1) (as amended) of Regulation No 3 provides: Wage-earners or assimilated workers employed in the territory of one Member State shall be subject to the legislation of that State even if… their employer or the registered office of the undertaking which employs them is situated in the territory of another Member State.

5. Article 13 (1) of the same regulation provides some exceptions to this principle, particularly in cases where, by reason of the place where the registered office of the undertaking or his employer is situated, it is impossible or unjustifiable to subject the worker to the legislation of the State where he is working temporarily.

6. The first sentence of Article 13 (1) (c) (as amended) provides that: Wage-earners and assimilated workers … who normally work in the territory of more than one Member State, shall be subject to the legislation of the Member State in the territory of which they have their permanent residence.

7. This provision is mainly aimed at avoiding the overlapping of several national systems of legislation where a worker who is affiliated to the social security scheme of the Member State where he is permanently resident, travels temporarily in other Member States by reason of his work, whilst not changing his permanent residence.

8. Therefore a prerequisite for the application of this provision is that the worker is affiliated to a social security institution in the State where he has his permanent residence.

9. If there is no such affiliation, the applicable legislation is determined in accordance with the general principle of Article 12 of Regulation No 3 in so far as the worker satisfies by reason of his work the conditions for affiliation set out by the social security legislation of the country where he is employed.

10. In addition, by the reference to workers who normally work in more than one Member State, the first sentence of the said Article 13 (1) (c) is not intended to exclude from its scope the case of a worker who, whilst not complying with the conditions set out in Article 13 (1) (a), is employed in a Member State other than that of his place of permanent residence, not habitually but occasionally.

11. For the above reasons the answer to be given is that a worker having his permanent residence in one Member State who is occasionally employed in another Member State is, by virtue of the first sentence of the said Article 13 (1) (c) of Regulation No 3, subject to the legislation of the State of his permanent residence in so far as he is affiliated as a wage-earner or assimilated worker to the social security scheme of this State and if he is not so affiliated he is subject to the social security legislation of the Member State where he works occasionally.

12. In the second question it is asked 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 for him to employ German musicians than French musicians.

13. Article 8 of Regulation No 3 provides that: Persons permanently resident in the territory of any Member State to whom this Regulation applies shall have the same rights and obligations under the social security legislation of every other Member State as the latter's nationals.

14. Thus it follows from the answer given to the first question that the social security relationships in question are governed by the legislation of the State where the worker has his permanent residence if he is affiliated to a social security institution of that State.

15. Therefore the obligation to pay the contributions which are laid down by the social security legislation is also applicable to an employer established in another Member State on the territory of which the worker is temporarily employed.

16. In such a case Article 51 of this regulation provides for the recovery of contributions due to an institution of one Member State and lays down the general conditions under which this recovery may be made on the territory of the State where the worker is employed.

17. The answer to the second question should therefore be that if an employer established in a Member State other than the one whose social security legislation is applicable to the worker, is not bound to pay contributions to the social security authorities of his own State, he is obliged to pay those laid down by the legislation which is application to the worker.

18. In the third question it is asked 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.

19. Article 29 of Regulation No 3 relating to accidents at work and occupational diseases provides in paragraph (1) that any wage-earner or assimilated worker who sustains an accident at work … in the territory of a Member State other than that of the competent country… shall be entitled to receive at the expense of the competent institution benefits in kind issued by the institution of the place of temporary or permanent residence.

20. By paragraph (6) of this article the cost of the benefits shall be reimbursed to the institutions which issued them ...

21. In addition, in relation to cash benefits, paragraph (7) of this article provides that the cost shall be borne by the competent institution in accordance with the legislation applicable to it.

22. In the case of a wage-earner or assimilated worker subject to the legislation of the State where he has his permanent residence who occasionally is employed in another Member State, the competent country for the purposes of these provisions is the State of his permanent residence, and the competent institution is that of the same State.

23. Thus the answer should be that in the case of an accident at work, including an accident on the way to or from work, which happens to a wage-earner or assimilated worker subject to the legislation of the State where he has his permanent residence, who is occasionally employed on the territory of another Member State, the social security institution of the latter State, as the institution of the place where the worker is, is only obliged, under Article 29 (1) of Regulation No 3, should the occasion arise, to issue the benefits in kind provided by its own legislation at the expense of the institution of the competent State.

24. The costs incurred by the Commission of the European Communities which submitted observations to the Court are not recoverable.

25. As these proceedings are, so far as the parties to the main action are concerned, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT in answer to the questions referred to it by the Cour de Cassation of France, by its order of 4 December 1974 hereby rules:

1 By virtue of the first sentence of Article 13 (1) (c) (as amended) of Regulation No 3, a worker having his permanent residence in one State who occasionally pursues his activity in another Member State is subject to the legislation of the State of his residence in so far as he is affiliated as a wage-earner or assimilated worker to the social security scheme of that State. If he is not so affiliated he is subject to the social security legislation of the Member State in which he occasionally pursues his activity.

2 In the case of an accident at work, including an accident on the way to or from work, which happens to a wage-earner or assimilated worker subject to the legislation of the State of his permanent residence, who is occasionally employed in the territory of another Member State, the social security institution of the latter State, as the institution of the place where the worker is, is only obliged, under Article 29 (1) of Regulation No 3, should the occasion arise, to issue the benefits in kind provided for by its own legislation at the expense of the institution of the competent State.