JUDGMENT OF THE COURT (Fifth Chamber)

30 March 2000 (1)

(Social security for migrant workers - Determination of the legislation applicable- Scope of the E 101 Certificate)

In Case C-178/97,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234EC) by the Tribunal du Travail de Bruxelles, Belgium, for a preliminary ruling inthe proceedings pending before that court between

Barry Banks and Others

and

Théâtre Royal de la Monnaie

on the interpretation of Article 14a(1)(a) and Article 14c of Council Regulation(EEC) No 1408/71 of 14 June 1971 on the application of social security schemesto employed persons, to self-employed persons and to members of their familiesmoving within the Community, and of Articles 11a and 12a(7) of CouncilRegulation (EEC) No 574/72 of 21 March 1972, fixing the procedure forimplementing Regulation (EEC) No 1408/71, as amended and updated by CouncilRegulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), andsubsequently by Council Regulation (EEC) No 3811/86 of 11 December 1986 (OJ1986 L 355, p. 5),

THE COURT (Fifth Chamber),

composed of: D.A.O. Edward, President of the Chamber, L. Sevón, C. Gulmann,J.-P. Puissochet (Rapporteur) and P. Jann, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

-    Mr Banks and others, by M.J.S. Renouf, Solicitor, and B. Blanpain, of theBrussels Bar,

-    the Théâtre Royal de la Monnaie, by S. Capiau, of the Brussels Bar,

-    the German Government, by E. Röder, Ministerialrat at the FederalMinistry of the Economy, and C.-D. Quassowski, Regierungsdirektor at thesame ministry, acting as Agents,

-    the French Government, by M. Perrin de Brichambaut, Director of LegalAffairs in the Ministry of Foreign Affairs, and C. Chavance, Secretary ofForeign Affairs in the same Directorate, acting as Agents,

-    the Netherlands Government, by J.G. Lammers, Acting Legal Adviser in theMinistry of Foreign Affairs, acting as Agent,

-    the United Kingdom Government, by J.E. Collins, of the Treasury Solicitor'sDepartment, acting as Agent,

-    the Commission of the European Communities, by M. Wolfcarius, of itsLegal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Banks and others, represented byM.J.S. Renouf and B. Blanpain; of the Théâtre Royal de la Monnaie, representedby S. Capiau; of the German Government, represented by C.-D. Quassowski; ofthe French Government, represented by C. Chavance; of the Irish Government,represented by A. O'Caoimh SC; of the Netherlands Government, represented byM.A. Fierstra, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent; ofthe United Kingdom Government, represented by M. Hoskins, Barrister; and of theCommission, represented by M. Wolfcarius, at the hearing on 22 October 1998,

after hearing the Opinion of the Advocate General at the sitting on 26 November1998,

gives the following

Judgment

1.

    By order of 21 April 1997, received at the Court on 7 May 1997, the Tribunal duTravail de Bruxelles (Brussels Labour Court) referred to the Court for apreliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) threequestions on the interpretation of Article 14a(1)(a) and Article 14c of CouncilRegulation (EEC) No 1408/71 of 14 June 1971 on the application of social securityschemes to employed persons, to self-employed persons and to members of theirfamilies moving within the Community ('Regulation No 1408/71‘), and of Articles11a and 12a(7) of Council Regulation (EEC) No 574/72 of 21 March 1972, fixingthe procedure for implementing Regulation (EEC) No 1408/71 ('Regulation No574/72‘), as amended and updated by Council Regulation (EEC) No 2001/83 of 2June 1983 (OJ 1983 L 230, p. 6), and subsequently by Council Regulation (EEC)No 3811/86 of 11 December 1986 (OJ 1986 L 355, p. 5).

2.

    Those questions were raised in proceedings between, on the one hand, Mr Banks,eight other opera singers and a conductor, supported by three other artists(hereinafter collectively referred to as 'Mr Banks and others‘), and, on the other,the Théâtre Royal de la Monnaie de Bruxelles ('the TRM‘) concerningcontributions which the latter deducted from the artists' fees under the generalsystem of Belgian social security for employed persons.

3.

    Mr Banks and others are performing artists of British nationality. They reside inthe United Kingdom where they normally work and are subject to the British socialsecurity system as self-employed persons. They were engaged by the TRM toperform in Belgium between 1992 and 1995. The engagements of each of theartists lasted for less than three months in total, save in the case of one of them,whose contracts covered a period of four months and six days.

4.

    The TRM withheld from their fees contributions due by reason of their beingsubject to the general system of social security for employed persons. Thatdeduction was made pursuant to Article 3(2) of the Royal Decree of 28 November1969, in implementation of the Law of 27 June 1969 amending the Decree-Law of28 December 1944 on social security for persons subject to the scheme foremployed persons (Moniteur Belge, 5 December 1969), which extended the schemeto performing artists. The contracts of Mr Banks and others expressly providedthat this deduction would be made.

5.

    In the course of their engagement or during the proceedings before the nationalcourt, Mr Banks and others each produced an E 101 certificate, issued by theUnited Kingdom Department of Social Security in accordance with Article 11a ofRegulation No 574/72, certifying that they were self-employed, that they would beself-employed during their engagement with the TRM, and that, during that period,they remained subject to United Kingdom social security legislation in accordancewith Article 14a(1)(a) of Regulation No 1408/71. Under that provision, a personnormally self-employed in the territory of a Member State and who performs workin the territory of another Member State is to continue to be subject to thelegislation of the first Member State, provided that the anticipated duration of thework does not exceed 12 months.

6.

    Mr Banks and others challenged their being made subject to the Belgian socialsecurity scheme for employed persons, and brought an action before the Tribunaldu Travail de Bruxelles for reimbursement by the TRM of the amount of thecontributions paid, together with interest at the statutory rate. They argued thatsince, while normally working as self-employed persons in the United Kingdom,they performed work in Belgian territory for a duration of less than 12 months,they remained, in accordance with Article 14a(1)(a) of Regulation No 1408/71,subject to United Kingdom legislation only. They further argued that the TRM andthe Office National de Sécurité Sociale Belge (the national social securityinstitution, hereinafter 'the ONSS‘) were obliged to recognise the E 101certificates issued by the United Kingdom Department of Social Security.

7.

    The TRM argued that Belgian legislation applied on the basis of Article 14c(a) ofRegulation No 1408/71, according to which a person who is simultaneouslyemployed in the territory of one Member State and self-employed in the territoryof another Member State is to be subject to the legislation of the Member Statein the territory of which he is engaged in paid employment. The TRM added that,since the ONSS refused to take account of the E 101 certificates issued to Britishself-employed persons, it felt it had no alternative but to comply with that decision. For the most part, moreover, those certificates, whose retroactive effect was opento doubt, were not issued and were not submitted to it until during the period ofthe artists' engagement or during the proceedings before the Tribunal du Travailde Bruxelles.

8.

    In its order, the national court begins by referring to the judgments of the Courtof Justice in Case C-340/94 De Jaeck v Staatssecretaris van Financen [1997] ECRI-461 and Case C-221/95 Inasti v Hervein and Hervillier [1997] ECR I-609, in whichit ruled that, for the purposes of applying Articles 14a and 14c of Regulation No1408/71, 'employed‘ and 'self-employed‘ should be understood to refer toactivities which were regarded as such by the social security legislation of theMember State in whose territory those activities were pursued.

9.

    The national court then observes that the activity of the plaintiffs in the mainproceedings is regarded as self-employed activity by United Kingdom social securitylegislation and as paid employment by the corresponding Belgian legislation.

10.

    It adds that, for Article 14a(1)(a) to apply in the case before it, as the performingartists maintain it should, it would be necessary for the word 'work‘, which appearsin that provision, to be given a wide interpretation covering any performance ofwork, whether as an employee or as a self-employed person, which does not exceed12 months.

11.

    If that were not so, the national court continues, Article 14c of Regulation No1408/71 might be applicable to the plaintiffs in the main proceedings. It observes,however, that to apply that provision would lead to their being made subject toBelgian legislation alone, since they carried on an activity regarded in Belgium asthat of an employed person, and that this would be so in respect of all theirprofessional activities, pursuant to Article 14d of the same regulation. And yet,given the brevity of their activities in Belgium, the plaintiffs in the main proceedingswould not qualify for any benefits under the Belgian system.

12.

    In those circumstances, the Tribunal du Travail de Bruxelles decided to stayproceedings and refer the following questions to the Court of Justice for apreliminary ruling:

'1.    (a)    Does the concept of ”work” in Article 14a(1)(a) of Regulation (EEC)No 1408/71 refer to any work, whether paid employment or self-employment, the duration of which does not exceed 12 months?

    (b)    If the concept of ”work” within the meaning of Article 14a(1)(a)refers exclusively to work by a self-employed person, should thisconcept be defined by reference to the social security legislation of theMember State in which the person is normally self-employed or byreference to the social security legislation of the Member State inwhich the ”work” is done?

2.    What is the relevant unit of time which should be taken into account indefining the term ”simultaneously” in Article 14c of Regulation (EEC)No 1408/71, or by what criteria can this term be defined?

3.    (a)    (i)    Does Form E 101, the issue of which is provided for, inparticular, by Articles 11a and 12a(7) of Regulation No 2001/83,have binding force as regards the legal consequences attested totherein:

            -    with respect to the competent institution of the MemberState in which the second activity is pursued?

            -    with respect to the person employing a worker pursuingan activity in two Member States?

        (ii)    If so, until when?

    (b)    Does Form E 101 have retroactive effect in so far as the periods towhich it relates have already come to an end at the time when theform is issued or produced?‘

The first question

13.

    By its first question, the national court is essentially asking whether the term'work‘ in Article 14a(1)(a) of Regulation No 1408/71 covers any performance ofwork, whether as an employed or self-employed person. If that provision were torefer only to work as a self-employed person, the national court is uncertainwhether determination of the nature of the work concerned is a matter for thesocial security legislation of the Member State in which the person is normally self-employed or for the corresponding legislation of the Member State in which thework is done.

14.

    Article 13, the opening provision of Title II of Regulation No 1408/71 concerningthe determination of the legislation applicable, provides in paragraph (1) that,subject to Article 14c, persons to whom the regulation applies shall be subject tothe legislation of a single Member State only.

15.

    Under Article 13(2)(b) of Regulation No 1408/71, subject to Articles 14 to 17 ofthat regulation, a person who is self-employed in the territory of one Member Stateshall be subjected to the legislation of that State even if he resides in the territoryof another Member State.

16.

    Article 14a of Regulation No 1408/71, headed 'Special rules applicable to persons,other than mariners, who are self-employed‘, provides that the rule in Article13(2)(b) shall apply subject to the following exceptions and circumstances. UnderArticle 14a(1)(a), a person normally self-employed in the territory of a MemberState and who performs work in the territory of another Member State shallcontinue to be subject to the legislation of the first Member State, provided thatthe anticipated duration of the work does not exceed 12 months.

17.

    Mr Banks and others, the TRM, the United Kingdom Government and theCommission, supported at the hearing by the Irish Government, contend that theterm 'work‘ in Article 14a(1)(a) of Regulation No 1408/71 must be understood asdenoting any performance of work, whether as an employed or self-employedperson. In their submission, that interpretation is dictated by the very generalmeaning which that word has in everyday language. Mr Banks and others and theCommission further argue that the use of that term is the result of a deliberatechoice by the Council when Council Regulation (EEC) No 1390/81 of 12 May 1981was adopted to extend application of Regulation (EEC) No 1408/71 (OJ 1981L 143, p. 1) to self-employed persons and members of their families. In its initialproposal, and in its amended proposal for a regulation, the Commission had,instead of using the word 'work‘, used the words 'provision of services‘, therebyintending to limit the application of the provision to cases where the self-employedperson performs work in that capacity in the territory of another Member State.

18.

    Should the Court consider that 'work‘ refers only to work as a self-employedperson, Mr Banks and others, the TRM and the United Kingdom Governmentmaintain that the nature of the work in question should be determined inaccordance with the social security legislation of the Member State in whoseterritory the person concerned is normally self-employed. However, on the basisof the judgments in Jaeck and Hervein and Hervillier, cited above, the Commissioncontends that such determination would then be a matter for the social securitylegislation of the Member State in which the work is performed.

19.

    The German, French and Netherlands Governments maintain that the term 'work‘refers exclusively to self-employment, given that it is for the legislation of theMember State in which the work is performed to determine its nature. In theirsubmission, that interpretation follows from the very heading of Article 14a ofRegulation No 1408/71. It is also consistent with the corresponding provisions ofTitle II concerning workers and employed mariners who are posted to the territoryof another Member State or on board a vessel flying the flag of another MemberState in order to perform work there. Only if the work which they performed werein an employed capacity would those workers and mariners remain subjectexclusively to the legislation of their Member State of origin.

20.

    The interpretation of the term 'work‘ put forward by the plaintiffs in the mainproceedings, the Irish and United Kingdom Governments and the Commission mustbe upheld.

21.

    That interpretation arises, first, from the wording of Article 14a(1)(a) of RegulationNo 1408/71. The word 'work‘ ordinarily has a general meaning designatingwithout distinction performance of work in either an employed or a self-employedcapacity. Moreover, Article 14a(1)(a) is distinguishable in that respect from Article14b(2), which provides that a person who is normally self-employed, either in theterritory of a Member State or on board a vessel flying the flag of a Member State,and who performs work on board a vessel flying the flag of another Member State,remains subject to the legislation of the first Member State provided he performsthat work on his own account.

22.

    It is true that, according to its heading, Article 14a of Regulation No 1408/71applies to persons other than mariners who are self-employed. However, it cannotbe inferred from this that the work referred to in Article 14a(1)(a) is necessarilyof a self-employed nature. In that article, the expression 'self-employed‘ refers tothe activity normally pursued by the person concerned in the territory of one ormore Member States, and not the occasional performance of work by him outsidethat State or those States.

23.

    The above interpretation of Article 14a(1)(a) of Regulation No 1408/71 is,moreover, confirmed by the circumstances in which that provision was adopted. It was inserted in that regulation by Regulation No 1390/81, which extendedRegulation No 1408/71 to self-employed persons and members of their families. Both in its initial proposal for the adaptation of Regulation No 1408/71 (OJ 1978C 14, p. 9) and in its amended proposal (OJ 1978 C 246, p. 2), the Commissionused the words 'provision of services‘ rather than 'work‘, thereby intending torestrict the application of the provision exclusively to cases where work isperformed in a self-employed capacity in the territory of another Member State. Everything suggests, therefore, that the Council used the word 'work‘ with theintention of also bringing work in an employed capacity within that provision.

24.

    The German and Netherlands Governments have, however, expressed concern thatan interpretation of the word 'work‘ which is not limited to self-employed activitieswould have serious consequences. In their submission, such an interpretation wouldenable any person to become affiliated to the social security scheme for self-employed persons of a Member State in which contributions are modest with thesole purpose of going to another Member State in order to work there for a yearas an employed person without paying the higher contributions in force in thatlatter State.

25.

    In that respect, it should be pointed out that Article 14a(1)(a) of Regulation1408/71 imposes the preliminary requirement that the person concerned be'normally‘ self-employed in the territory of a Member State. That obligationassumes that the person concerned habitually carries out significant activities in theterritory of the Member State where he is established [see, by analogy, with regardto Article 14(1)(a) of Regulation No 1408/71 concerning the posting of employedpersons, Case C-202/97 Fitzwilliam Executive Search v Bestuur van het LandelijkInstituut Sociale Verzekeringen [2000] ECR I-0000, paragraph 45]. Thus, such aperson must already have been carrying out his activity for some time at themoment when he wishes to take advantage of the provision in question. Similarly,during the period in which he works in the territory of another Member State, thatperson must continue to maintain, in his State of origin, the necessary means tocarry on his activity so as to be in a position to pursue it on his return.

26.

    As the Advocate General has observed in paragraph 59 of his Opinion, themaintenance of such an infrastructure in the State of origin involves, for example,such matters as the use of offices, payment of social security contributions, paymentof taxes, possession of a work permit and VAT number, or registration withchambers of commerce and professional organisations.

27.

    Furthermore, application of Article 14a(1)(a) of Regulation No 1408/71 assumesthat the person who is self-employed in the territory of a Member State carries outa work assignment ('un travail‘) in the territory of another Member State, that isto say a defined task, the content and duration of which are determined in advance,and the genuineness of which must be capable of proof by production of therelevant contracts.

28.

    The answer to the first question must therefore be that the term 'work‘ in Article14a(1)(a) of Regulation No 1408/71 covers any performance of work, whether inan employed or self-employed capacity.

The second question

29.

    In its second question, the national court inquires as to the interpretation of theword 'simultaneously‘ in Article 14c of Regulation No 1408/71.

30.

    It is clear from the order for reference that the application in the case in the mainproceedings of Article 14a(1)(a) of Regulation No 1408/71 assumes that the term'work‘ in that provision refers to any performance of work, whether in anemployed or self-employed capacity, and that the second question was raised onlyin the event of Article 14a(1)(a) not being applicable in this case.

31.

    Having regard to the reply given to the first question, there is therefore no needto reply to the second question.

The first part of the third question

32.

    In the first part of the third question, the national court is essentially askingwhether the E 101 certificate, issued in accordance with Articles 11a and 12a(7) ofRegulation No 574/72, binds both the competent institution of the Member Statein which the work assignment is carried out and the person who calls upon theservices of self-employed persons holding that certificate. In the event of anaffirmative answer, the national court enquires as to the duration of the bindingeffect of that certificate.

33.

    Article 11a of Regulation No 574/72 provides inter alia that the institutiondesignated by the competent authority of the Member State whose legislation is toremain applicable by virtue of Article 14(1) of Regulation No 1408/71 shall issuea certificate stating that the self-employed person remains subject to that legislationup to the date specified therein. According to Article 12a(7) of the sameregulation, where Article 14c(a) of Regulation No 1408/71 applies, the institutiondesignated by the competent authority of the Member State in whose territory theperson is employed shall issue to the latter a certificate stating that he is subject tothat legislation. Since, however, for the reasons stated in paragraphs 29 to 31 ofthis judgment, Article 14c is not relevant in the case in the main proceedings, it isnot necessary to examine Article 12a(7) of Regulation No 574/72.

34.

    By Decision No 130 of 17 October 1985 on the model forms necessary for theapplication of Council Regulations (EEC) No 1408/71 and (EEC) No 574/72(E 001; E 101-127; E 201-215; E 301-303; E 401-411) (OJ 1986 L 192, p. 1), whichapplied at the material time in the case in the main proceedings, the AdministrativeCommission of the European Communities on Social Security for Migrant Workers('the Administrative Commission‘), referred to in Articles 80 and 81 of RegulationNo 1408/71, established inter alia, for the certification referred to in Article 11a ofRegulation No 574/72, a model certificate, known as 'Form E 101‘.

35.

    Mr Banks and others, the TRM and the Irish and United Kingdom Governmentsmaintain that, so long as it has not been withdrawn by the issuing institution, theE 101 certificate has binding force vis-à-vis the competent institutions of the otherMember States. If it were otherwise, the functioning of the system for regulatingconflicts of laws, established by Title II of Regulation No 1408/71, would beundermined. The United Kingdom Government contends that the certificate is alsobinding on persons who engage workers who hold it. On that point, the TRMcontends, by contrast, that those persons are bound by the rules of the competentinstitution of the Member State under whose jurisdiction they fall.

36.

    The German, French and Netherlands Governments, and the Commission, pointto the fact that the social security legislation applicable to workers is determinedby Title II of Regulation No 1408/71. In their submission, it is not possible toexclude the possibility that the competent authority which issued the E 101certificate might have reached the conclusion that its own legislation applied on thebasis of factual inaccuracy or erroneous analysis. Thus, even if the E 101 certificateconstitutes a powerful indicator of the applicable legislation, the competentinstitutions of the other Member States are, they maintain, entitled in appropriatecases to reach a different conclusion.

37.

    The German and Netherlands Governments contend that, in that event, institutionsother than the issuing institution are entitled to disregard the E 101 certificate. The Commission, however, insists upon the duty of sincere cooperation betweenthe competent institutions of the Member States. Thus, in the event of the issuinginstitution refusing to accede to a request for withdrawal made by anotherinstitution, it would be for the latter to refer the dispute to the national courts.

38.

    It should be pointed out that the principle of sincere cooperation, laid down inArticle 5 of the EC Treaty (now Article 10 EC), requires the issuing institution tocarry out a proper assessment of the facts relevant to application of the rules fordetermining the applicable social security legislation and, consequently, toguarantee the correctness of the information contained in an E 101 certificate (seeFitzwilliam Executive Search, cited above, paragraph 51).

39.

    It is clear from the obligations to cooperate arising from Article 5 of the Treatythat those obligations would not be fulfilled - and the aims of Article 14a(1)(a) ofRegulation No 1408/71 and Article 11(a) of Regulation No 574/72 would bethwarted - if the competent institution of the Member State in which the workassignment is carried out were to consider that it was not bound by the certificateand made the self-employed person subject to its own social security system(Fitzwilliam Executive Search, paragraph 52).

40.

    Consequently, in so far as an E 101 certificate establishes a presumption that theself-employed person concerned is properly affiliated to the social security systemof the Member State in which he is established, it is binding on the competentinstitution of the Member State in which that person carries out a work assignment(Fitzwilliam Executive Search, paragraph 53).

41.

    If that were not so, the principle that self-employed persons are to be covered byonly one social security system would be undermined, as would the predictabilityof the system to be applied and, consequently, legal certainty. In cases in which itwas difficult to determine the system applicable, each of the competent institutionsof the two Member States concerned would be inclined to take the view, to thedetriment of the self-employed person concerned, that their own social securitysystem was applicable (Fitzwilliam Executive Search, paragraph 54).

42.

    Consequently, so long as an E 101 certificate is not withdrawn or declared invalid,the competent institution of a Member State in which the self-employed personcarries out a work assignment must take account of the fact that that person isalready subject to the social security legislation of the Member State in which heis established, and that institution cannot therefore subject the self-employedperson in question to its own social security system (Fitzwilliam Executive Search,paragraph 55).

43.

    However, it is incumbent on the competent institution of the Member State whichissued the E 101 certificate to reconsider whether it was properly issued and, ifappropriate, to withdraw the certificate if the competent institution of the MemberState in which the self-employed person carries out a work assignment expressesdoubts as to the correctness of the facts on which the certificate is based and,consequently, of the information contained therein, in particular because theinformation does not correspond to the requirements of Article 14a(1)(a) ofRegulation No 1408/71 (Fitzwilliam Executive Search, paragraph 56).

44.

    Should the institutions concerned not reach agreement on, in particular, thequestion how the particular facts of a specific case are to be assessed andconsequently on the question whether that case is covered by Article 14a(1)(a) ofRegulation No 1408/71, it is open to them to refer the matter to the AdministrativeCommission (Fitzwilliam Executive Search, paragraph 57).

45.

    If the Administrative Commission does not succeed in reconciling the points of viewof the competent institutions on the question of the legislation applicable, it is opento the Member State in the territory of which the self-employed person carried outa work assignment, without prejudice to any legal remedies existing in the MemberState to which the issuing institution belongs, at the very least to bring infringementproceedings under Article 170 of the EC Treaty (now Article 227 EC) in order toenable the Court to examine in those proceedings the question of the legislationapplicable to that self-employed person and, consequently, the correctness of theinformation contained in the E 101 certificate (Fitzwilliam Executive Search,paragraph 58).

46.

    It follows from the above that, so long as it has not been withdrawn or declaredinvalid, an E 101 certificate, issued in accordance with Article 11a of Regulation No574/72, is binding on the competent institution of the Member State to which theself-employed person goes in order to carry out a work assignment.

47.

    Since, moreover, the E 101 certificate is binding on that competent institution,there can be no justification for the person who calls on that worker's services notto act upon that certificate. If he has doubts as to the validity of the certificate,that person must however inform the institution in question.

48.

    The answer to the first part of the third question must therefore be that, so longas it has not been withdrawn or declared invalid, an E 101 certificate, issued inaccordance with Article 11a of Regulation No 574/72, is binding both on thecompetent institution of the Member State to which a self-employed person goesin order to carry out a work assignment and the person who calls upon the servicesof that worker.

The second part of the third question

49.

    In the second part of its third question, the national court asks whether an E 101certificate, issued in accordance with Article 11a of Regulation No 574/72, mayhave retroactive effect where it relates to a period which has wholly or partiallyelapsed at the time of its issue.

50.

    Mr Banks and others, the German, French, Netherlands and United KingdomGovernments and the Commission propose that this question be answered in theaffirmative. They argue, in particular, that Regulation No 574/72 does not requirethe certificate to be issued before the work assignment in the territory of thesecond Member State begins.

51.

    The TRM, however, considers that the late issuing or production of an E 101certificate makes it impossible for the person who has recourse to the services ofthe workers concerned to take account of it in good time.

52.

    In that respect, it should first be noted that Article 11a of Regulation No 574/72does not impose any time-limit for the issue of the certificate referred to therein.

53.

    Moreover, when issuing the E 101 certificate pursuant to Article 11a, thecompetent institution of a Member State does no more than state that the self-employed person concerned remains subject to the legislation of that Member Statethroughout a given period in the course of which he carries out a work assignmentin the territory of another Member State. Although it should preferably be madebefore the beginning of the period concerned, such a statement may also be madeduring that period or indeed after its expiry.

54.

    There is therefore nothing to prevent the E 101 certificate from producingretroactive effects, according to the circumstances.

55.

    Thus, Decision No 126 of the Administrative Commission of 17 October 1985concerning the application of Articles 14(1)(a), 14a(1)(a), 14b(1) and (2) ofRegulation No 1408/71 (OJ 1986 C 141, p. 3) provides that the institution referredto in Articles 11 and 11a of Regulation No 574/72 is required to issue a certificateconcerning the applicable legislation (the E 101 certificate), even if issue of thatcertificate is requested after the beginning of the activity carried out in the territoryof the State other than the competent State by the worker concerned.

56.

    Moreover, the Court implicitly acknowledged that the E 101 certificate mayproduce retroactive effects when it held that the option which Article 17 ofRegulation No 1408/71 confers on Member States to agree, in the interest of aworker, to apply a legislation different from that designated by Articles 13 to 16also applies in respect of periods that have already expired (Case 101/83 Raad vanArbeid v Brusse [1984] ECR 2223, paragraphs 20 and 21; Case C-454/93 Rijksdienstvoor Arbeidsvoorziening v Van Gestel [1995] ECR I-1707, paragraph 29). Articles11 and 11a of Regulation No 574/72 also provide that, in such a situation, an E 101certificate is to be issued.

57.

    The answer to the second part of the third question must therefore be that theE 101 certificate, issued in accordance with Article 11a of Regulation No 574/72,may have retroactive effect.

Costs

58.

    The costs incurred by the German, French, Irish, Netherlands and United KingdomGovernments and the Commission, which have submitted observations to theCourt, are not recoverable. Since these proceedings are, for the parties to the mainproceedings, a step in the proceedings pending before the national court, thedecision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Tribunal du Travail de Bruxelles byorder of 21 April 1997, hereby rules:

1.    The term 'work‘ in Article 14a(1)(a) of Council Regulation (EEC) No1408/71 of 14 June 1971 on the application of social security schemes toemployed persons, to self-employed persons and to members of theirfamilies moving within the Community, as amended and updated byCouncil Regulation (EEC) No 2001/83 of 2 June 1983, and subsequently byCouncil Regulation (EEC) No 3811/86 of 11 December 1986, covers anyperformance of work, whether in an employed or self-employed capacity.

2.    So long as it has not been withdrawn or declared invalid, an E 101certificate, issued in accordance with Article 11a of Council Regulation(EEC) No 574/72 of 21 March 1972, fixing the procedure for implementingRegulation No 1408/71, as amended and updated by Regulation No 2001/83and subsequently by Regulation No 3811/86, is binding both upon thecompetent institution of the Member State to which a self-employed persongoes in order to carry out a work assignment and the person who calls uponthe services of that worker.

3.    The E 101 certificate, issued in accordance with Article 11a of RegulationNo 574/72, may have retroactive effect.

Edward Sevón Gulmann Puissochet Jann

Delivered in open court in Luxembourg on 30 March 2000.

R. Grass

D.A.O. Edward

Registrar

President of the Fifth Chamber

1: Language of the case: French.