Opinion of Advocate General Lenz
Mr President,
Members of the Court,
A — Facts
1. Mr Aldewereld, the plaintiff in the main proceedings, is a Netherlands national. According to the judgment of the Hoge Raad der Nederlanden, which made the reference for a preliminary ruling, he took a job in 1985 with an undertaking established in Germany, which posted him immediately to Thailand, where he worked throughout 1986. On the basis of that employment the German authorities charged social security contributions under German law. The relevant contributions in respect of unemployment, old-age pension, and accident insurance were deducted from Mr Aldewereld's salary. However, the German authorities rejected an application for child allowance on the ground that, in their opinion, Mr Aldewereld did not satisfy the requirements under German law.
2. Under Netherlands law, persons who have their residence in the Netherlands are required to pay social security contributions.
3. The Hoge Raad der Nederlanden referred the following question to the Court of Justice under Article 177 of the EEC Treaty:
B — Analysis
4. The essential question in these proceedings is whether Community law permits a person in Mr Aldewereld's situation to be subjected to the social security provisions of more than one Member State. It is obvious that an answer to the question should be sought in Regulation (EEC) No 1408/71 of the Council of 14 June 1971, which is referred to in the national court's question and which aims to coordinate the social security schemes of the Member States.
5. Article 2(1) of Regulation No 1408/71 provides that the regulation applies inter alios to employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States. All the parties to the proceedings before this court — the Netherlands, Italy, the Commission and Mr Aldewereld — quite rightly agree that that is the case here and Mr Aldewereld therefore falls within the scope ratione personae of the regulation. The decisive factor is that the social security provisions of (at least) one Member State applied to him. The fact that at the material time Mr Aldewereld was working outside the Community is therefore not relevant in that regard.
6. Provisions concerning the determination of the legislation applicable are contained in Title II (Article 13 et seq.) of the regulation. Article 13(1) of the regulation states:
7. It is clear that Title II of Regulation No 1408/71 contains no provision directly applicable to this case. I assume however that the social security contributions paid by Mr Aldewereld in Germany were compulsory under the German legislation. The court making the reference also appears to have made that assumption, although its judgment does not expressly say so. The following observations therefore apply only to that situation.
8. Firstly, the general rule in Article 13(2)(a) is inapplicable to this case; it provides that subject to Articles 14 to 17, an employed person is to be subject to the legislation of the Member State in which he is employed, even if he resides in another Member State or if his employer has its registered office or place of business in another Member State. That rule cannot apply to this case, because Mr Aldewereld was employed in a non-member country.
9. The Netherlands Government concludes from those circumstances that Title II of Regulation No 1408/71 either does not apply at all in the present case or at least does not contain any provision determining the legislation applicable. It contends that in such a situation it is exclusively the Member States which are competent to determine whether a person such as Mr Aldewereld is subject to their social security systems. It argues that, although in the present case that would result (partially) in double insurance, there is no gap in Title II, because the aim of the provisions on which Regulation No 1408/71 is based (Articles 48 to 51 of the EEC Treaty) is merely to bring about free movement within the Community.
10. I am unable to adopt that argument. It is not necessary to consider whether, as the Italian Government has submitted, the mere fact that Mr Aldewereld began working for an undertaking from another Member State, which then sent him to a non-member country, is to be regarded as the exercise of the right to freedom of movement guaranteed by Article 48 of the EEC Treaty. In any case, the decisive factor is that according to the case-law of the Court of Justice the provisions of Title II of Regulation No 1408/71 constitute a complete system of conflict rules. The aim of the provisions of Title II is inter alia to ensure that the persons concerned shall be subject to the social security scheme of only one Member State, in order to prevent more than one national legislative system from being applicable and to avoid the complications which may result from that situation. Since Mr Aldewereld falls within the scope ratione personae of Regulation No 1408/71, that must also apply to him. The legislation applicable must therefore be determined, in his case too, on the basis of Title II of Regulation No 1408/71.
11. Since that title contains no provision which could be applied directly to the case in point, it must be asked whether an appropriate solution can be reached by way of interpretation. In that respect, we should proceed on the basis that Regulation No 1408/71 provides essentially three criteria to determine the legislation applicable: a connection with the legislation of the Member State in which the person is employed (the State of employment), a connection with the legislation of the Member State in which the employed person resides (the State of residence), and a connection with the legislation of the Member State in which the employer has its registered office or place of business (the State of establishment).
12. As I have already mentioned, under Article 13(2)(a) it is basically the legislation of the State of employment which is decisive. As the Commission has correctly pointed out, if before his posting to Thailand Mr Aldewereld had first — even only for a short period — been employed in Germany, there would have been hardly any doubt that the German social security legislation was to be applied. However, in view of the fact that Mr Aldewereld was posted by his employer directly to Thailand, the criterion of the State of employment cannot be used.
13. A situation in which it would not be sensible to take the State of employment as the relevant criterion is also the basis for the special rule in Article 14(2). That provision applies to those cases in which a person is normally employed in the territory of two or more Member States.
14. However, it should be pointed out that Article 14(2) (a) only applies to a narrowly defined category of persons, namely persons who are members of the travelling or flying personnel of an undertaking which operates international transport services for passengers or goods by rail, road, air or inland waterway. Article 14(2) (b) applies to all other persons. It provides that the legislation of the State of residence is to be applied if the person is employed partly in that State, or if he is employed by several undertakings or employers who have their registered offices or places of business in different Member States (Article 14(2)(b)(i)); if the person does not reside in any of the Member States where he is pursuing his activity, the legislation of the State of establishment is to be applied (Article 14(2)(b)(ii)).
15. However, in my opinion, a convincing solution for cases of the type considered here cannot be derived from either of the two lastmentioned provisions. It can only be stated that, where the adoption of the legislation of the State of employment does not lead to practicable results, the regulation declares that, in some cases, the legislation of the State of establishment is to apply and, in other cases, that of the State of residence. A general principle, according to which one criterion is basically preferable to the other, cannot be determined.
16. In those circumstances the Commission's proposal that, until such legislation comes into effect, it should be left to the employed person to choose between the application of the legislation of the State of establishment (in this case Germany) and that of the legislation of the State of residence (in the present case the Netherlands) seems to me to be the most sensible solution. That solution enables the decision to be made by the person whose interests are most directly concerned. In that context, it may also be pointed out that Mr Aldewereld himself has indicated in his written observations that, in the event of him having to make a choice, the German legislation could be applied.
C — Conclusion
17. I therefore propose that the Court give the following answer to the question submitted by the Hoge Raad der Nederlanden:
1 Original language: German.
2 Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ 1971 L 149, p. 2) as amended by Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6).
3 The text of the regulation applicable at the material time (1986) must be taken as the basis. The regulation has been amended several times since then (most recendy by Council Regulation (EEC) No 1945/93 of 30 June 1993, OJ 1993 L 181, p. 1). However those amendments are not relevant to the question considered here.
4 Cf. the judgment in Case 300/84 Van Roosmalen v Bestuur van de Bedrijfsvereniging voor de Gezondheid [1986] ECR 3097, paragraph 30).
5 Article 14c contains a special rule (not relevant in this case) applicable to persons who are, at the same time, employed in one Member State and self-employed in another.
6 The special rules for self-employed persons (Article 14a) and mariners (Article 14b) are inapplicable to the case in point.
7 Judgment in Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraph 12; judgment in Case C-196/90 De Paep [1991] ECR I-4815, paragraph 18.
8 Judgment in Case 60/85 Luijten v Raad van Arbeid [1986] ECR 2365, paragraph 12.
9 Article 16 (a special rule for persons employed by diplomatic missions and consular posts and auxiliary staff of the European Communities) provides certain other connecting criteria (eg. the law of the Member State of which the employed person is a national).
10 If the person is employed by a branch or permanent representation outside the State of establishment, it is however the legislation of the Member State in which the branch or permanent representation is situated which is to be applied (Article 14(2)(a)(i)).
11 See footnote 8, above.