2.The Commission of the European Communities rehearses the facts and the Netherlands legislation applicable in the field and observes that with regard to the present case the provisions of Articles 13 (2) (a) and 14 (1) (c) (i) of Regulation No 1408/71 are particularly important. It points out that Article 31 (2) (a) provides:“Subject to the provisions of Articles 14 to 17:(a) a worker employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State ...”and that Article 14 (1) provides:“Article 13 (2) (a) shall apply subject to the following exceptions or circumstances:...(c) a worker, other than one employed in international transpon, who normally pursues his activity in the territory of two or more Member States shall be subject:(i) to the legislation of the Member State in whose territory he resides, if he pursues his activitv partly in that territory or if he is attached to several undertakings or several emplovers who have their registered offices or places of business in the territory ot different Member States”.It adds that Regulation No 3. which was replaced by Regulation No 14 08/71 1. did not contain the general principle which is set out in Article 13 of the latter regulation and according to which the workers to which the regulation applies are subject to the legislation of a single Member State only, determined in accordance with the provisions of Title II of the same regulation, but that it nevertheless contained provisions similar to those cited above, namely Article 12 and Article 13 (c).Finallv the Commission recalls Council Directive No 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Official Journal, L 6 of 10 January 1979 p. 24) which, in accordance with Article 1 thereof, applies inter alia to the statutory schemes applicable in the fields of invalidity and old age.The Commission points out that under Article 5 of that directive the Member States are required to adopt the measures necessary to ensure that any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished and that, according to Article 4, that principle means that “there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status ...” which applies in particular with regard to “the scope of the schemes and the conditions of access thereto”.The Commission considers that the Netherlands scheme under which, subiect to cenain exceptions, a married woman is not insured inter aita under the Old-Age Law unless her husband is himself insured under that Law, is incompatible with the provisions of that directive and must accordingly be amended during the period which expires on 22 December 1984.More particularly, with regard to the question put to the Court concerning the national legislation applicable, the Commission considers that, in order to reply to it, it is necessary to draw a distinction between two situations:1. The situation as it existed up to 1 June 1966, that is to say, up to the time when Mr Kuijpers obtained employment in the Netherlands in addition to his employment in Belgium; and2. the situation after that date.The Commission observes that the first situation concerns the period during which Mr Kuijpers was employed only in Belgium. According to the provisions of Article 12 of Regulation No 3 the worker must in such circumstances be subject to the legislation of the Sute on whose territory he was employed that is, to Belgian legislation.The Commission recalls that Regulation No 3 did not contain any provision expressly laying down the principle that workers to whom the regulation applied must be subject to the legislation of a single Member Sute only and that in its judgment of 9 June 1964 in Case 92/63 Nonnenmacher [1964] ECR 281 the Court furthermore stated that Anide 12 of Regulation No 3 included no provision prohibiting the simultaneous application of several systems of legislation but on the other hand that that article prohibited “the application of the legislation of a Member State other than that in which the person concerned works to the extent that it requires that person to contribute to the financing of a social security institution which is unable to provide him with additional advantages in respect of the same risk and of the same period”.According to the Commission it may thus be concluded with regard to the period before 1 June 1966 that the competent Netherlands institution was entitled to declare the Netherlands social security legislation inapplicable to Mr Kuijpers and that, even if such legislation were to be considered applicable, on the basis of the case-law of the Court it could only have producted its effects within the limits mentioned above.On the other hand the Commission considers that the same does not hold true with regard to the situation which existed in the course of the period during which Mr Kuijpers worked both in Belgium and the Netherlands. It emphasizes that during that period he was in fact subject to the application of the provisions of Article 13 (c) of Regulation No 3. By virtue of those provisions he was thus subject, as a worker ordinarily employed on the territory of more than one Member State, to the legislation of the State on the territory of which he was resident, that is to say, the Netherlands.With regard to that period the competent Netherlands institution could not exclude Mr Kuijpers from the benefit of the application of the Netherlands social security legislation.In this connection the Commission notes that if a number of uncertainties continue to exist, this is because of the judgment in the Coonan case in which the Court interpreted Articles 1 (a) and 3 of Regulation No 1408/71 as meaning that “it is for the legislature of each Member State to lay down the conditions creating the right or the obligation to become affiliated to a social security scheme or to a particular branch under such a scheme provided always that in this connection there is no discrimination between nationals of the host State and nationals of the other Member States”.According to the Commission it may be deduced from the foregoing that under Netherlands legislation it is permissible to exclude from the Netherlands social security scheme persons who do not fulfil certain conditions, and in particular persons who are already insured outside the Netherlands. It emphasizes that the Centrale Raad, however, wonders whether the situation is different in this case since such a provision of national law has the same objective as the provisions of Community law, namely the delimination of the effects of the various national social security schemes, and whether the rule of Community law must not then take priority over the rule of national law.It observes that, in this perspective, the essential point in this case is therefore to reply to the question whether the legislation of a Member State, which may in principle fix the conditions for affiliation to the social security scheme, may exclude from that scheme a worker to whom the regulation applies because he is already insured in another Member State.Before replying to that question the Commission remarks thai it is important to emphasize that the situation to which that question relates will only arise exceptionally and that this applies even more in the case of Regulation No 1408/71 than in that of Regulation No 3. It emphasizes that, apan from the voluntary insurance or optional continued insurance dealt with in Article 15, Regulation No I-CS/71 lays down the principle, set out in Amele 13 (1). that the worker must be subiect to the legislation of a single Member State only.The Commission repeats in this connection that the scheme set up under Regulation No 3 is slightly dinerem in that it may permit in certain clearlydefined cases the simultaneous application to the same worker of the legislation of more than one Member State. Nevertheless in this case too the word “simultaneous” used expressly by the Court in the Nonnenmacher case might exclude the application of a provision such as the Netherlands provision in question concerning overlapping.Be that as it may, with regard to the actual question put to the Coun the Commission is of the view that the regulations in question must be considered as embodying detailed rules, which in its opinion are exhaustive, governing the problem of the legislation applicable. It observes that the basic principle is that in all cases it is necessary to apply at least, and generally no more than, one social security scheme and that in principle the legislation of a Member State applicable by vinue of those rules may fix the conditions governing the right and duty of affiliation.Nevenheless, a Member State is not entirely free to fix these conditions and it must not exceed the limits laid down by the regulation. Thus it is, maintains the Commission, that the provisions on the national legislation applicable contained in the regulation and mentioned above must be complied with. According to'the Commission this would not be the case if national legislation which the regulation declares to be applicable — by exclusion or otherwise — contained provisions indicating the application not of that legislation but of the legislation of another Member State.The Commission accordingly considers in conclusion mat the lollowmg reply should be given to the question submitted bv the Centrale Raad van Beroep:Article 13 (1) (c) of Regulation No 3 concerning social security for migrant workers and Article 14 (1) (c) (i) of Regulation (EEC) No 1408/71 of the Council on the application of social security schemes to employed persons and their families moving within the Community must be interpreted as meaning that a provision of a Member State which is intended to exclude a worker from the benefit of legislation which is declared applicable to him in accordance with the regulation on the ground that he is insured at the same time in another Member Sute is incompatible with those articles.
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