This reference for a preliminary ruling concerns the
interpretation of Article 13(2)(a) of Regulation 1408/71 and was
made in the course of proceedings between Mrs. Bosmann and the
Bundesagentur für Arbeit - Familienkasse Aachen concerning
the latter's refusal to grant child benefits.
Mrs. Bosmann, a Belgian national resident in Germany, brings up
her two children, born respectively in 1983 and 1985, on her own.
They also reside Germany where they are students. Mrs. Bosmann was
entitled to German child benefits which were granted by the
After Mrs. Bosmann took up employment in the Netherlands, the
Bundesagentur ceased payment of those benefits, arguing that Mrs.
Bosmann is subject only to the legislation of the Member State of
employment, namely that of the Netherlands, and hence that Germany
cannot be regarded as the competent State liable to pay those
Mrs. Bosmann is not entitled to the corresponding child benefits
in the Netherlands in view of the fact that Dutch legislation does
not provide for them to be granted for children aged over 18.
The national court in essence asked the ECJ whether Article
13(2)(a) of Regulation 1408/71 permits Mrs. Bosmann, who is subject
to the legislation of the Member State of her employment, to receive
child benefit in the Member State where she resides, if it is
established that she cannot, because of the age of her children, be
granted such a benefit in the competent Member State.
Having recalled the aim of the Regulation's rules determining the
legislation applicable, the ECJ held that, pursuant to Articles
13(2)a and 73, Mrs. Bosmann is in principle subject to the
legislation of the Member State of her employment, i.e. the
Netherlands. It went on to state that the fact that the law
applicable to the situation of an employed person in one of the
situations covered by the provisions of Title II of Regulation
1408/71 is to be determined in accordance with those provisions,
does not necessarily preclude the application of provisions from
another system of legislation.
Referring to Article 10(a)(1) of the Implementing Regulation, the
Commission argued that the question referred for a preliminary
ruling should be answered in the affirmative. In particular, the
Commission contended that the existence of a link of attachment to
two Member States, namely that of residence and that of employment,
permits the overlapping of rights to benefits. Therefore, so the
argument goes, under the said provision, in view of the lack of
comparable entitlement to family benefits in the State of
employment, they should be granted without limitation by the State
This argument was not upheld by the ECJ. The Court observed that
Article 10(1)(a) of Regulation 574/72 - which is intended to resolve
cases of overlapping of rights to family benefits where they are
due, simultaneously, irrespective of conditions of insurance or
employment, in the State of residence and, in application of Article
73 of Regulation 1408/71, in the State of employment - does not
apply to the case at hand, in which there is not such type of
"overlapping" of family benefits, for lack of entitlement in the
The ECJ went on to find that the situation of Ms. Bosmann is
neither covered by Article 10(1)(b)(i) of Regulation 574/72, which
provides that the State of residence, whose legislation does not
subject entitlement to conditions of insurance or employment, has to
pay family benefits in situations in which a professional or trade
activity is carried out in that State, by the spouse of the person
entitled to benefits in the other State.
As the specific attachment rules of the Implementing Regulation
are not applicable, Ms. Bosmann's situation is subject to the
general rule of Article 13(2)(a) of the basic Regulation. It follows
that Community law does not require the competent German authorities
to grant Ms. Bosmann the family benefit in question. However,
neither can the possibility of such a grant be excluded, because,
under the German legislation, Ms. Bosmann may be entitled to child
benefit solely because of her residence in Germany, which is for the
national court to determine.
Indeed, in the ECJ's view, Germany cannot be deprived of the
right to grant child benefit to those resident within its territory.
To rule as it did, the ECJ recalled that the provisions of
Regulation 1408/71 must be interpreted in the light of Article 42
EC, which aims to facilitate freedom of movement for workers and
entails, in particular, that migrant workers must not lose their
right to social security benefits or have the amount of those
benefits reduced because they have exercised the right to freedom of
movement conferred on them by the Treaty.
In the light of the above, the ECJ ruled that while, under
Article 13(2)(a) of Regulation 1408/71, a person employed in the
territory of one Member State is to be subject to the legislation of
that State even if he resides in the territory of another Member
State, the fact remains that the purpose of that regulation is not
to prevent the Member State of residence from granting, pursuant to
its legislation, child benefit to that person.
This ruling spawned some concern among commentators. Although
there is general satisfaction with the outcome of the case at hand,
many wonder whether this judgement will herald an end to the
exclusive effect of the coordination rules on the determination of
the legislation applicable.
This reference for a preliminary ruling concerns the
interpretation of Regulation 1408/71 and was made in the course of
proceedings between Mr Derouin and the Union pour le
recouvrement des cotisations de sécurité sociale et d'allocations
familiales (Urssaf) de Paris - Région parisienne
concerning account taken for the purpose of calculating the
contribution sociale généralisée (CSG) and the
contribution pour le remboursement de la dette sociale
(CRDS) payable by Mr Derouin as a self-employed person subject to
French legislation of income earned in another Member State and
taxable in that State under a double-taxation convention.
Mr. Derouin is residing in France where he practises as a lawyer
in a self-employed activity. He is a partner in Linklaters,
a partnership governed by UK law with an office in Paris. Mr.
Derouin performs all his work as a lawyer for the Paris office and
is remunerated by receiving a share of the results of each office.
He is resident for tax purposes in France and is taxed there and in
each country where the partnership is established on his share of
the results of the office. He is also covered by compulsory sickness
insurance in France and is registered with the Urssaf as a
Mr. Derouin challenged payment of the CSG and CRDS claimed by the
Urssaf insofar as they were calculated on his UK source income, on
the grounds that they constitute taxes and that, under the Double
Taxation Convention between France and the UK, only taxable income
in France can be subject to the CSG and CRDS.
Urssaf, on its part, contended that the CSG and CRDS are social
security contributions which come within the scope of Regulation
1408/71 and hence should be calculated on the whole of Mr. Derouin's
income, whether earned in the UK or in France.
The national court asked whether Regulation 1408/71 is to be
interpreted as precluding the Double Taxation Convention from
providing that income received by workers resident and socially
insured in France is excluded from the base on which the CSG and the
CRDS are assessed.
The ECJ began by noting that Mr. Derouin, who simultaneously
pursues self-employed activities in the UK and in France and who
resides in the latter country, is subject to French legislation on
account of Article 14a(2) of Regulation 1408/71. The ECJ also
recalled its previous case law according to which the CSG and the
CRDS are social security contributions for the purposes of
Regulation 1408/71 (Cases
C-34/98 and C-169/98).
The ECJ went on to consider that, since Regulation
1408/71 is a means of coordination and not of harmonisation, Member
States have the power to determine the tax base for contributions
such as the CSG and the CRDS, provided they comply with Community
law. It follows that a Member State is entitled to forego the
inclusion in the tax base for contributions such as the CSG and the
CRDS of income earned in another Member State by a resident
self-employed person such as Mr. Derouin. Indeed, although it is
established that Regulation 1408/71 does not prohibit a Member State
from calculating the amount of social contributions of a resident on
the basis of his total income, clearly no provision of the
Regulation requires it to do so. However, the ECJ stressed, such
exclusion cannot affect the worker's right to receive all of the
benefits provided for by the applicable legislation.
In such circumstances, the ECJ decided that Regulation 1408/71 is
to be interpreted as meaning that it does not preclude a Member
State whose social legislation is alone applicable to a resident
self-employed worker, from excluding from the tax base for
contributions such as the CSG and the CRDS income earned by the
worker in another Member State, by application, in particular, of a
convention for the avoidance of double taxation with respect to
taxes on income.
C-212/06 Government of the French Community and Walloon Government
This reference for a preliminary ruling concerns the
interpretation of Articles 18, 39 and 43 EC and of Regulation
1408/71 and was made in the course of proceedings before the Belgian
Constitutional Court concerning the affiliation conditions of the
Flemish care insurance scheme.
By Decree of the Flemish Parliament of 30 March 1999, a care
insurance scheme was set up in the Dutch-speaking region and in the
bilingual region of Brussels-Capital, in order to improve the state
of health and living conditions of persons whose autonomy is reduced
by serious and prolonged disability.
That decree has been amended on several occasions, in order in
particular to take account of objections raised by the Commission.
Basically, the Commission challenged the compatibility with
Community law of the condition of residence in the said regions, to
which affiliation to that care insurance scheme was made subject.
The criterion of residence was, therefore, adapted by the Decree
of 30 April 2004. That Decree essentially extended the scope
ratione personae of the care insurance scheme to persons
working in the territory of those regions and residing in a Member
State other than Belgium.
The Governments of two other entities of the Belgian federal
State, namely the Government of the French Community and the Walloon
Government, claimed that to exclude from that scheme persons who,
although working in the Dutch-speaking region or in the bilingual
region of Brussels-Capital, reside in another part of national
territory, amounts to a restrictive measure hindering the free
movement of persons. On this point the Constitutional Court has
referred several questions to the EJC.
The ECJ found, first of all, that the benefits provided under the
Flemish long-term care insurance scheme fall within the scope
ratione materiae of Regulation 1408/71.
Next, the Court, as the Advocate General, makes a distinction
between two situations:
On the one hand, application of the legislation at issue leads,
inter alia, to the exclusion from the care insurance scheme
of Belgian nationals working in the territory of the Dutch-speaking
region or in that of the bilingual region of Brussels-Capital but
who live in another part of national territory and who have never
exercised their freedom to move within the European Community.
Unlike the Advocate General, who had suggested that the application
of the affiliation criteria in this situation might run counter to
Article 18 EC, the ECJ held that Community law, including Article 18
EC, cannot be applied to such purely internal situations.
On the other hand, the legislation at issue may also exclude from
the care insurance scheme employed or self-employed persons falling
within the ambit of Community law, that is to say, both nationals of
Member States other than Belgium working in the Dutch-speaking
region or in the bilingual region of Brussels-Capital but who live
in another part of the national territory, and Belgian nationals in
the same situation who have made use of their right to freedom of
movement. In this respect, the ECJ considered that the legislation
at issue is such as to produce restrictive effects. Migrant workers,
pursuing or contemplating the pursuit of employment or
self-employment in one of those two regions, might be dissuaded from
making use of their freedom of movement and from leaving their
Member State of origin to stay in Belgium, by reason of the fact
that moving to certain parts of Belgium would cause them to lose the
opportunity of eligibility for the benefits which they might
otherwise have claimed. In other words, the fact that employed or
self-employed workers find themselves in a situation in which they
suffer either the loss of eligibility for care insurance or a
limitation of the place to which they transfer their residence is,
at the very least, capable of impeding the exercise of freedom of
movement for workers and freedom of establishment.
The ECJ found that there is nothing in either the file sent to
the Court by the referring court or the observations of the Flemish
Government capable of justifying the application, to persons working
in the Dutch-speaking region or the bilingual region of
Brussels-Capital, of a requirement of residence either in one of
those two regions or in another Member State, for the purpose of
eligibility for the care insurance scheme.
This case touches upon the interesting question of the
application of Community law to Member States with a decentralised
structure. It might have resonance beyond Belgian borders, in other
Member States where decentralised or federated entities have
competence over social security matters.
This reference for a preliminary ruling concerns the
interpretation of Article 48 of Regulation 1408/71 and was made in
the course of proceedings between Mr. Chuck and the Raad van
Bestuur van de Sociale Verzekeringsbank (SVB) concerning
calculation of insurance periods of a national of a Member State who
has worked in two other Member States and who resided in a third
country at the date of retirement.
Mr. Chuck, a UK national, worked and was resident in the
Netherlands from 1972 to 1975 and from 1976 to 1977. In the nine
months between those two periods, he worked and paid contributions
in Denmark. Mr. Chuck has been resident in the United States since
The SVB awarded Mr. Chuck a pension but refused to take account,
for the calculation of the pension, of the periods of insurance
completed in Denmark, on the grounds that Mr. Chuck did not reside
in the territory of a Member State and therefore, in the SVB's
opinion, article 48 of Regulation 1408/71 could not be applied.
According to this Article, even though Member States are not as a
rule obliged to award benefits in respect of insurance periods of
less than one year, such periods are to be taken into account for
the purposes of calculating the theoretical pension.
The question was raised whether the SVB's was right to refuse to
apply Article 48 to the present case.
The ECJ found that the Regulation does not expressly address the
situation at issue, concerning the effect of the place of residence
of the pension claimant on the calculation of his pension rights in
respect of periods worked in various Member States. Referring to the
objective set out in Article 42 EC, the ECJ considered that the
provision of Article 48 of the Regulation contributes to
guaranteeing freedom of movement for workers between the Member
States. Consequently, that provision - whose application, moreover,
does not depend on the place of residence of the work when he claims
a pension - cannot be interpreted as meaning that the mere fact that
he moved to a non-Member State will call into question his right to
have his old-age pension calculated in accordance with the rules of
Furthermore, the ECJ noted that it is apparent from Article 36 of
the implementing Regulation that the Community legislature did
envisage a situation such as that of Mr. Chuck, notably by providing
that pension claims can be submitted by a non-resident in a Member
Having regard to the abovementioned considerations, the ECJ
decided that Article 48(2) of Regulation 1408/71 requires the
competent institution of the last Member State in which a worker who
is a national of a Member State resided to take into account, in
calculating the old-age pension of that worker, who, when he submits
his pension claim, is resident in a non-Member State, of the periods
worked in another Member State under the same conditions as if that
worker still resided in the European Community.
The ECJ added, however, that Regulation 1408/71 does not oblige
the last Member State to pay the pension in the third country. This
is indeed a matter of national law and/or bilateral