OPINION OF MR ADVOCATE-GENERAL MAYRAS

DELIVERED ON 20 FEBRUARY 1973 (*1)

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:

—Hupfer, a sand and gravel works at Weil/Rhein, and

—Grande Sablière, of Saint-Louis in Alsace.

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:

‘Does Article 13 (1) (c) of Regulation No 3 of the Council of 25 September 1958, concerning social security for migrant workers, imply that the worker only pursues his activity in several Member States for a single employer or whether this provision equally applies when the worker is in the service of several employers in several Member States?’

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:

‘Save as otherwise provided under this Title, wage-earners or assimilated workers employed in the territory of one Member State shall be subject to the legislation of that State even if they permanently reside in the territory of another Member State or their employer or the registered office of the undertaking which employs them is situated in the territory of another Member State’.

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 first (a) concerns the provisional secondment of workers; this is the case where a worker employed by an undertaking, having in the territory of one member State an establishment to which he is normally attached, is seconded by that undertaking to the territory of another State in order to work there. This worker remains subject to the legislation of the first State as if he had continued to be employed in its territory. Nevertheless, this rule is valid only if the probable duration of the secondment does not exceed 12 months.

—The second exception (b) relates to workers who are in the service of transport undertakings and are called on to travel, in the normal course of events, in the territory of several States. For them, it is the law of the place where the undertaking has its registered office which prevails or, alternatively the law of the State in whose territory it has established a branch or permanent agency by which the worker is employed.

—The third exception (c), which is concerned in the present case, relates to the case of workers, other than those in transport, who normally pursue their activity in the territory of several Member States. These workers are subject to the legislation of the State in which they reside.

Failing this, that is if they do not reside in the territory of any of the Member States although pursuing an activity there, they are governed by the law applicable to the registered office of the undertaking employing them.

Finally, the last exception (d) relates to the special situation of workers who are in the service of an undertaking ‘straddling’ the common frontier of two Member States. In this event, the registered office of the undertaking is situated in the territory of one State but the undertaking has an establishment in the adjacent territory of another State; it is then the law applicable to the registered office which prevails, even if the wage-earner is employed at the establishment situated on the other side of the frontier.

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:

(I)the first relates to the worker who resides in the territory of one of the States where he partly pursues his activity;

(II)the second applies to the case where the worker does not reside in any of the Member States where he works.

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.

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:

(I)on the one hand, the pursuit of a professional or trade activity in the territory of several Member States,

(II)on the other hand, the residence of the worker in the territory of one of those States.

To interpret this as applying only to a worker employed by a single employer would therefore be tantamount to adding to this Regulation a condition which it does not contain.

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.

The question of whether he is in the service of one or several employers has no bearing on the choice of this solution.

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

The choice of a single applicable social security legislation in fact implies the right of wage-earners to all types of benefits provided for by such legislation. If, in the case of accidents at work, ‘stricto sensu’, a direct link exists between the place of work and the risk which is run there, this being a connection from which it would be possible to deduce the system of benefits applicable, it is not the same for other benefits in respect of other risks, such as illness (non-occupational) or invalidity, which it is, a priori, impossible to link to a specific place of work.

How then, failing the simple criterion of residence, can one determine the law applicable? Would one not then run into the snags of the simultaneous application of several legislations which the Community legislature wanted to avoid?

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.

Article 14 (c) of the new Regulation subjects the worker, who normally pursues his activity in the territory of two or more Member States, to the legislation of the State in which he resides, if he pursues part of his activity there or if he is employed by several employers or undertakings having their registered office in the territory of different Member States.

Of course, the accident of which Bentzinger was a victim occurred in 1970 and the order of reference by which the Landessozialgericht of Baden-Württemberg brought this matter before you goes back as far as 21 September 1972. As it was prior to the entry into force of the new Regulation, it relates only to Regulation No 3.

Thus, you will not have, at least in the operative part of your judgment, to rule on the interpretation of Article 14 (c) of Regulation No 1408/71.

However, it seems to us to be worthwhile to recall that, although Article 94 (1) of that Regulation lays down that ‘no right shall be acquired under this Regulation for a period prior to the date of its entry into force’, Article 94 (3) lays down a proviso to this principle by stating that, subject to the provisions of paragraph 1, a right shall be acquired under the new Regulation although relating to a contingency, that is a risk covered by social security, which materialized prior to the date of entry into force of this Regulation.

In our opinion, this provision must be understood as meaning that the new provisions are applicable when no administrative or legal decision has ruled definitively on the right of the person concerned prior to 1 October 1972, the event giving rise to the right to benefits having occurred prior to that same date.

It would seem that this provision would permit Mr Bentzinger to claim the application of Regulation No 1408 in his favour.

But we have seen that, in this instance, the solution would not be different from that which would result from the interpretation which, for our part, we give to Article 13 (1) (c) of Regulation No 3.

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.

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(1) Translated from the French.