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The reference has been made in proceedings between Mr Bakker and the Staatssecretaris van Financiën (State Secretary for Finance) concerning his compulsory affiliation to the Dutch social insurance scheme for 2004.
During 2004, Mr Bakker, who has Dutch nationality, resided in Spain and was employed on board dredgers flying the Dutch flag for an undertaking established in Rotterdam (Netherlands). He carried out his activities mainly in the territorial seas of China and of the United Arab Emirates. The dredgers were recorded in the Dutch maritime shipping register. Mr Bakker challenged the assessment sent to him in respect of income tax and national insurance contributions for 2004 in the Netherlands and was convinced he should not be affiliated to the Dutch compulsory social security scheme.
The dispute having reached the Dutch Supreme Court, it asked the ECJ whether Article 13(2)(c) of Regulation No 1408/71 must be interpreted as precluding a legislative measure of a Member State from excluding from affiliation to the social security scheme of that Member State a person in the position of the applicant in the main proceedings, who holds that Member State’s nationality but does not reside in it and is employed on board a dredger flying the flag of that Member State but operating outside European Union territory. It also wanted to know to what extent is it important in that regard that in the implementation of the Dutch employed persons’ insurance scheme a policy is followed by virtue of which seafarers in a case such as the present are considered by the implementing body to be insured persons on the basis of EU law.
The answer from the Court was quite straightforward. It held that it must be borne in mind that Article 13(2)(c) of Regulation 1408/71 expressly provides that a person employed on board a vessel flying the flag of a Member State is to be subject to the legislation of the State. Thus, pursuant to that provision, a person in Mr Bakker’s situation is, in principle, subject to the Dutch social security legislation, in view of the professional activity which that person carries out on board a vessel flying the Dutch flag.
Mr Bakker’s arguments with relation to a dredger not fitting under the concept of ‘vessel’ and to the sovereignty of coastal states could not alter that conclusion. The first argument could not be accepted, inasmuch as there is no condition laid down in that provision as to the type of ‘vessel’ covered. Furthermore, neither respect for the sovereignty of the coastal State nor the United Nations Convention on the Law of the Sea requires that a worker in Mr Bakker’s situation be deprived of the benefit of the social insurance provided for, in accordance with Regulation 1408/71, by the Member State whose flag the vessel flies, when that vessel is located in the territorial waters of a State other than that Member State.
Also the residence requirement for compulsory general social insurance in the Netherlands could not change the conclusion. The effect of Article 13(2)(c) of Regulation 1408/71 is that a provision of the applicable national legislation pursuant to which cover by the social security scheme established by that legislation is conditional on residence in the Member State concerned may not be relied on against the persons referred to in Article 13(2)(c) of that regulation.
Article 13(2)(c) of Regulation No 1408/71 must thus be interpreted as precluding a legislative measure of a Member State from excluding, from affiliation to the social security scheme of that Member State, a person in the position of the applicant in the main proceedings, who holds that Member State’s nationality but does not reside in it and is employed on board a dredger flying the flag of that Member State and operating outside the territory of the European Union. Having regard to the answer given to the first question, it was not necessary to answer the second question.