Judgment_paragraph 4. · 99/80

4.In the reference of 14 March 1980 the National Insurance Commissioner requested the Court to rule on the following questions :I — Whether in relation to social security benefits provided under the legislation of a Member State a person who has been compulsorily insured as a self-employed person (but not as an employed person) in that Member State should be regarded as a worker within the meaning of Article 1 (a) of Regulation (EEC) No 1408/71 of the Council in that Member State by reason either:(a) that he is a worker under the legislation of some other Member State; or(b) (if the answer to (a) is negative) that he has been so insured as self-employed under a social security scheme for one or more of the contingencies covered by a social security scheme for employed, self-employed and non-employed persons.II — (If the answer to either Question I (a) or I (b) is affirmative) whether a person who has been insured as a self-employed person (but not as an employed person) in a Member State should in relation to a pension payable under the legislation of that Member State be regarded as a pensioner for purposes of Article 77 of the said regulation by reason that he is or has been a worker for purposes of that regulation and/or by reason of the fact that his pension (though unaffected in the competent State by the provisions of that regulation) has been subject to revision in another Member State under that regulation.III — (If the answers to Question I (a) or (b) and to Question II are affirmative) whether Article 6 of the said regulation is valid in so far as it operates to deprive a person of any right to benefit derived from a provision of national law of a Member State giving effect to a reciprocal convention with one or more other Member States.”In stating the reasons on which the reference was based the National Insurance Commissioner explains that Question I (a) concerns the issue of whether the claimant must be treated as a “worker” within the meaning of Regulation No 1408/71 in every Member State once he has acquired that status in one of the Member States, in this case the Netherlands.He considers that alternatively it might be argued that since he is insured as a self-employed person under the British scheme in the same way as employed persons and against the same contingencies the applicant must be treated as a worker within the meaning of Article 1 (a) (i) of Regulation No 1408/71. It is for that reason that Question I (b) returns to a question raised, but not ruled on, by the Court in Case 17/76 Brack v Insurance Officer [1976] ECR 1429.As regards the second question, the Commissioner explains that there is a different but similar argument to the effect that even if the claimant is a person covered by Regulation No 1408/71 for the purpose of Article 6 of that regulation this case does not concern a matter to which the regulation relates because the claimant is not a pensioner within the meaning of Article 77.The Commissioner observes that he would probably have determined these questions himself if the issue of the validity of Article 6 of Regulation No 1408/71 had not been raised. He states that he would have treated Article 6 as wholly valid if it were not for the fact that its validity was questioned by Mr Advocate General Warner in his opinion in Case 32/77 Giuliani v Landesversicherungsanstalt Schwaben [1977] ECR 1857, in which, whilst acknowledging the conflict with the Court's decision in Case 82/72 (Walder, cited above), he stated that the reasoning followed by the Court in the judgment of 21 October 1975 in Case 24/75 Petroni [1975] ECR 1149, namely that Article 51 of the Treaty does not empower the Council to legislate to the detriment of workers who exercise their right to freedom of movement, must be applied in that case irrespective of “whether the advantage of which the legislation of the Council purports to deprive a worker is derived from national law alone or from national law incorporating an international convention” [1977] ECR at p. 1669).The Commissioner adds that the question whether Article 6 is effective to take away rights conferred by a reciprocal convention has arisen on a number of occasions, in which it has proved possible to determine the matter without its being necessary to raise the issue of the validity of Article 6. However, in the present case its validity would seem to be crucial for the whole case. The Commissioner states that in addition it is desirable that uncertainty created by the doubts expressed by the Advocate General should be ended.