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OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 18 October 2007 1(1)

Case C-103/06

Philippe Derouin

v

Union pour le recouvrement des cotisations de sécurité sociale et d’allocations familiales de Paris – Région parisienne (Urssaf)

(reference for a preliminary ruling from the Tribunal des affaires de sécurité sociale de Paris (France))

(Social security for migrant workers – Regulation (EEC) No 1408/71 – Articles 8, 14a(2) and 14d(1) – Self-employed persons – General social contribution – Social debt repayment contribution – Taking into account income received in another Member State and taxable in that State under a convention for the avoidance of double taxation)





I –  Introduction

1.        In this case the Court is asked to interpret Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, (2) as amended by Council Regulation (EC) No 1606/98 of 29 June 1998 (3) (‘Regulation No 1408/71’), (4) and the relationship between that regulation and the provisions of a tax convention, in this case between the French Republic and the United Kingdom of Great Britain and Northern Ireland, intended to avoid the double taxation of the income received by a self-employed person residing in France and covered by social insurance in that State who pursues activities in a self-employed capacity simultaneously in both those Member States.

2.        More specifically, the issue is whether the provisions of Regulation No 1408/71 must be interpreted as meaning that they preclude a Member State, in this case the French Republic, from refraining, under the provisions of the double taxation convention in question, from levying in respect of part of the income from the activities of that self-employed person contributions which, according to the case-law of the Court of Justice, fall within the scope of that regulation.

II –  Relevant provisions

A –    Provisions of Community law

3.        Article 2(1) of Regulation No 1408/71 provides that the latter applies ‘to employed or self-employed persons … who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors’.

4.        Article 13(1) of that regulation provides that ‘[s]ubject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title’.

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

6.        Article 14a of Regulation No 1408/71 reads: ‘Article 13(2)(b) shall apply subject to the following exceptions and circumstances:

…

2.       A person normally self-employed in the territory of two or more Member States shall be subject to the legislation of the Member State in whose territory he resides if he pursues any part of his activity in the territory of that Member State. …’

7.        Article 14d(1) of Regulation No 1408/71 reads: ‘The person referred to in … Article 14a(2), (3) and (4) … shall be treated, for the purposes of application of the legislation laid down in accordance with these provisions, as if he pursued all his professional activity or activities in the territory of the Member State concerned.’

B –    The provisions of national law and the Convention between the French Republic and the United Kingdom for the avoidance of double taxation

8.        The general social contribution (‘the CSG’) was introduced by Finance Law No 90-1168 of 29 December 1990, (5) the relevant provisions of which were codified in Article L. 136-1 et seq. of the Social Security Code.

9.        Article L. 136-1 of the Social Security Code provides that the CSG is to be assessed on the occupational income and substitute income of natural persons who are considered as being resident in France for the purposes of assessment to income tax and are at the same time covered, on whatever ground, by a compulsory French sickness insurance scheme. The occupational income of self-employed persons is also subject to the CSG. Under Article L. 136-5 of the Social Security Code, the CSG levied on occupational income is collected by the authorities responsible for the collection of contributions to the general social security scheme under the rules and subject to the guarantees and penalties applicable to the collection of contributions to the general social security scheme for the same category of income. According to Article L. 136-8 of the Social Security Code, the rate of the CSG levied on income referred to in Article L. 136-1 of that code is 7.5% of the gross amount. (6) The proceeds from the CSG levied on occupational income and substitute income are paid, in accordance with the scale laid down in Article L. 136-8(IV) of the Social Security Code, to the Caisse nationale des allocations familiales (National Family Allowance Fund), the Fonds de solidarité vieillesse (Old Age Solidarity Fund), (7) the compulsory sickness insurance schemes and, since 1 July 2004, the Caisse nationale de solidarité pour l’autonomie (National Solidarity Fund for Independence). (8)

10.      The social debt repayment contribution (the ‘CRDS’) was introduced by Article 14-1 of Order No 96-50 of 24 January 1996 concerning repayment of the social debt. (9) The CRDS is assessed on the basis of the income referred to, and the conditions laid down in, Articles L. 136-2 to L. 136-4 and in Article L. 136-8(III) of the Social Security Code. The rate of this contribution was set at 0.5% of taxable income and is levied on income received between 1 February 1996 and 31 January 2009. Under Article 15(III)(1) of Order 96-50, occupational income and substite income from a foreign source which is subject to income tax in France under double taxation conventions is also to be subject to the CRDS. According to that order, the proceeds from the CRDS are to be allocated to the Caisse d’amortissement de la dette sociale (Social Debt Redemption Fund - CADES), a State agency of administrative character.

11.      On 22 May 1968 the French Republic and the United Kingdom signed a convention for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income (‘the Double Taxation Convention’), which entered into force on 29 October 1969. (10)

12.      According to Article 1(1) of that convention, the taxes falling within its scope, as regards the French Republic, are income tax, corporation tax, including any withholding tax, and prepayments (précomptes) or advance payments with respect to the aforesaid taxes. Article 1(2) provides that the convention ‘shall also apply to any identical or substantially similar future taxes which are imposed in addition to, or in place of, the existing taxes ... The competent authorities of the Contracting States shall notify to each other any changes which have been made in their respective taxation laws’.

13.      Article 14(1) of the Double Taxation Convention provides that income derived by a resident of a Contracting State in respect of independent professional activities are taxable only in that State, unless the resident concerned has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base. Article 14(2) defines ‘independent professional activities’ as meaning all the activities, other than commercial, industrial or agricultural activities, carried on by a person who receives the proceeds or bears the losses arising from those activities.

14.      It can be seen from the documents before the Court that the Double Taxation Convention will be replaced when the Convention signed on 28 January 2004 between the United Kingdom and the French Republic for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains is ratified. The latter convention expressly states that the CSG and the CRDS fall within its scope.

III –  The dispute in the main proceedings and the question referred for a preliminary ruling

15.      Mr Derouin resides in France, where he practises as a lawyer in a self-employed capacity, while at the same time being a partner in Linklaters, a partnership governed by English law (‘Linklaters’). Linklaters has its head office in the United Kingdom, but also has offices in other Member States, including France.

16.      Mr Derouin is registered at the Paris Court of Appeal (France) as an avocat and at the same time with the Supreme Court of England and Wales (United Kingdom) as a registered foreign lawyer. He performs his work as a lawyer as a member of Linklaters’ Paris office and is remunerated by receiving a share of the profits made by Linklaters.

17.      As he is resident for tax purposes in France Mr Derouin pays tax in that Member State and in each State where Linklaters is established on his share of the results of each establishment.

18.      Mr Derouin is covered by a compulsory sickness insurance scheme in France and is registered with the Union pour le recouvrement des cotisations de sécurité sociale et d’allocations familiales de Paris – Région parisienne (‘Urssaf’) as a self-employed person.

19.      Since 2000 the Urssaf has calculated family allowance contributions, and also the CSG and the CRDS, on the occupational income which Mr Derouin derives from working at Linklaters’ office in France and on the share of profits made by Linklaters in the United Kingdom.

20.      Mr Derouin has paid the family allowance contributions for which he is liable calculated on the whole of his occupational income (including his UK-source income). However, he disputes payment of CSG and CRDS contributions on his UK-source income on the grounds that they are not social security contributions but should be regarded as taxes. According to Mr Derouin, since the UK-source income is taxed in the United Kingdom under the Double Taxation Convention only income that is taxable in France should be subject to the CSG and the CRDS.

21.      The Urssaf contends on the contrary that the contributions concerned are social security contributions, that they fall within the scope of Regulation No 1408/71, and that they must therefore be calculated on the whole of Mr Derouin’s income, both from France and from the United Kingdom.

22.      In order to obtain clarification on this matter the Tribunal des affaires de sécurité sociale de Paris (Paris Social Security Tribunal) (France), by order of 12 April 2005, sought an opinion from the Cour de Cassation (Court of Cassation) on whether the CSG and the CRDS should be regarded as taxes for the purposes of the Double Taxation Convention.

23.      In the view of the Cour de cassation, ‘the question whether Regulation No 1408/71 … must be interpreted as precluding a convention such as the [Double Taxation Convention] from providing that income received in the United Kingdom by workers resident in France and covered by social insurance in that State is excluded from the basis on which the CSG and CRDS levied in France are assessed must be submitted to the Court of Justice of the European Communities …’.

24.      Considering that the question of the legal nature of the CSG and the CRDS is conclusive for resolving the issue before it and that the outcome of the dispute in the main proceedings depends on whether application of the provisions of the Double Taxation Convention to the CSG and the CRDS contravenes the Community rules, the Tribunal des affaires de sécurité sociale de Paris decided to stay proceedings and to refer the following question to the Court of Justice:

‘Is Regulation 1408/71 … to be interpreted as precluding a convention, such as the [Double Taxation Convention], from providing that income received in the United Kingdom by workers resident in France and covered by social insurance in that State is excluded from the basis on which the [CSG] and the [CRDS] levied in France are assessed?’

IV –  Procedure before the Court

25.      Mr Derouin, the Urssaf, the French and United Kingdom Governments and the Commission of the European Communities have submitted written observations in accordance with Article 23 of the Statute of the Court of Justice. Those parties also presented oral argument at the hearing held on 7 March 2007.

V –  Analysis

A –    Preliminary remarks

26.      Regulation No 1408/71 introduces a system for coordinating the national social security schemes of the Member States and contains a set of provisions which determine in each particular case the national social security legislation to be applied. The purpose of those provisions is to ensure that a person who has exercised his right to freedom of movement is, in principle, subject to the legislation of only one Member State at a time (the so-called ‘single State principle’) (11) and must therefore pay social security contributions only in the Member State whose legislation applies. The system for resolving conflicts of social security laws introduced by Regulation 1408/71 seeks in particular, as a corollary, to preclude, in respect of the same income, a person who has exercised his right to freedom of movement being required to pay double contributions. (12)

27.      The objectives guiding bilateral conventions for the avoidance of double taxation of occupational income are not so different from those pursued by Regulation No 1408/71 as regards social security contributions. Whilst the former seek to allow the Contracting States, irrespective of any relevant measure of unification or harmonisation within the Community context, to allocate powers of taxation between them in order to avoid or mitigate double taxation of the same income earned in one or other of those States, (13) the latter precludes in principle making persons falling within its scope liable to pay the double social security contributions that would result in respect of the same income from the simultaneous application of two sets of national social security legislation. (14)

28.      It might therefore be suggested that the rules for resolving conflicts of laws laid down under those two types of instrument, one international, the other Community, should apply each to the subject to which they relate, without, by deduction, any relationship existing between them and without, for all the greater reason, any relationship of conflict.

29.      The situation is complicated, however, by what some refer to as ‘the move towards funding social security by taxation’, (15) a practice or phenomenon which, in essence, consists of financing national social security schemes by means of levies which, at least as far as national law is concerned, have the characteristics of taxes but which, from the point of view of Community law, are such as to fall within the scope of Regulation No 1408/71. In this situation, which is precisely the situation in the case in the main proceedings under consideration, as will be explained in this Opinion, the question arises as to the relationship between Regulation No 1408/71 and double taxation conventions.

30.      This is indeed not the first time that the Court has heard a case concerning the question whether the CSG and/or the CRDS are taxes or social security contributions.

31.      However, as in the two cases that gave rise to the Commission v France judgments, in which the Court held that categorisation as a tax under national legislation did not prevent the two contributions at issue from falling within the scope of Regulation No 1408/71 in so far as they were allocated specifically and directly to financing social security in France and therefore presented a direct and sufficiently relevant link with the legislation governing the branches of social security listed in Article 4 of that regulation, (16) I do not think, contrary to what is suggested in the grounds of the order for reference, that this case should lead the Court to resolve the question of the nature of those contributions.

32.      It is sufficient to note in this case, as the French Government moreover conceded at the hearing, that none of the parties submitting observations to the Court in this case seriously disputes, following the Commission v France judgments and, so far as the CSG is concerned, the more recent and slightly ambiguous judgment in PerezNaranjo, (17) that the CSG and the CRDS do indeed fall within the substantive scope of the provisions of Regulation No 1408/71. In any event, if, as Mr Derouin has sought to argue before the Court of Justice, since 2002 the CRDS has not met the criteria set out in the Commission v France judgments, it is for the national court to consider whether any changes to that contribution introduced by French regulations are such that the CRDS is no longer allocated specifically and directly to financing social security in France but is designed to cover the general and administrative costs of the public authorities, thereby removing it from the scope of Regulation No 1408/71. Of course, if that were to be the case, in so far as the CRDS falls within the scope of the Double Taxation Convention, the question referred for a preliminary ruling would become partly redundant. Nonetheless, the premiss on which the question referred is based is that the CRDS, like the CSG, continues to fall within the substantive scope of Regulation No 1408/71. It is therefore from this premiss that the present analysis should start.

33.      Moreover, it is to be stated that the Court is not asked – quite correctly – about the interpretation of the Double Taxation Convention, but more specifically whether the CSG and the CRDS fall within the scope of that convention. The Court only has jurisdiction to interpret Community law, even if in order to provide an interpretation of that law that is useful for the national court it may take into account, where appropriate, the provisions of a double taxation convention because the national court includes it among the relevant provisions as regards the case in the main proceedings. (18) In the present case, in order to provide a useful answer to the question referred by the national court it is appropriate to start from the premiss that the CSG and the CRDS are covered by the provisions of the Double Taxation Convention under Article 1(2) of that convention.

34.      Moreover, unlike the cases which gave rise to the Commission v France judgments, the present case does not involve the difficult question of the cumulative application, prohibited by Article 13 et seq. of Regulation No 1408/71, of the social security legislation of the Member State of the workers’ residence and that of the Member State of their employment, because in the present case it is common ground, as the national court has observed, that Mr Derouin is subject, in his capacity as a self-employed person residing in France and covered by social insurance in that Member State, to French social security legislation and that, as the United Kingdom Government confirmed at the hearing, the latter does not levy any social security contribution on Mr Derouin’s income from his work in the United Kingdom.

35.      As the French Government and the United Kingdom have appositely observed, the national court did not clearly determine under which provision of Regulation No 1408/71 Mr Derouin would fall within the personal scope of that regulation. In that regard, the national court suggested, on the one hand, Article 13(2)(b) of that regulation which, under the single State principle, provides that a person who is self-employed in the territory of one Member State is subject to the legislation of that State even if he resides in the territory of another Member State and, on the other hand, Article 14a(2) of the same regulation which, by way of derogation from Article 13(2)(b), states that a person normally self-employed in the territory of two or more Member States is subject to the legislation of the Member State in whose territory he resides if he pursues any part of his activity in the territory of that Member State.

36.      The indecision on the part of the national court may, it seems, be due to the fact that Mr Derouin receives income from the United Kingdom in respect of his work as a partner of Linklaters whilst actually working in a self-employed capacity in France, where he resides. This indecision also appears to have been caused by the arguments raised by Mr Derouin, who considers that he pursues his professional activity exclusively in France, thus appearing to contend that the provisions of Regulation No 1408/71 do not apply because he has not exercised the right to freedom of movement, in the present case freedom of establishment. At the hearing the French Government also queried the applicability of Regulation No 1408/71, if the national court should find that Mr Derouin pursues his professional activity in France alone and merely derives income from the United Kingdom, a situation that would deprive him of the status of a self-employed migrant worker. In the view of that Government, if that were to be the case, the issue of the compatibility of the Double Taxation Convention with Regulation No 1408/71 would no longer arise.

37.      Of course, in the context of proceedings under Article 234 EC it is not for the Court either to determine the facts or to apply the rules of Community law in a particular case, or yet to examine the compatibility of domestic law or a double taxation convention with Community law. If the national court were, however, to confirm the factual circumstances envisaged by Mr Derouin and by the French Government this would, of course, make the interpretation of Community law given by the Court in answer to the question referred for a preliminary ruling redundant.

38.      This risk appears to me to be limited, however, for two main reasons. First, the national court has already found in its order for reference that Mr Derouin does indeed fall within the personal scope of Regulation No 1408/71, and it is not for the Court of Justice to call that finding into question. Second, it is clear from the documents before the Court that Mr Derouin seeks to benefit under Article 14(1) of the Double Taxation Convention, which provides, in essence, that United Kingdom tax legislation is to apply where a French resident has a fixed base regularly available to him in the other Contracting State for the purpose of performing work in a self-employed capacity. It is therefore difficult to suppose that Mr Derouin does not also work in a self-employed capacity in the United Kingdom, the Member State in which, I would point out, he is registered with the Supreme Court of England and Wales as a registered foreign lawyer. It therefore seems to me that the applicability of Article 14a(2) of Regulation No 1408/71 to a situation like Mr Derouin’s is far from being excluded and it is therefore on this premiss also that the answer to the question referred by the national court should be based.

39.      Finally, the debate between the parties intervening in the present proceedings is completely different. It concerns in essence whether the provisions of Regulation No 1408/71 should be interpreted as precluding a Member State, competent by virtue of that regulation to levy contributions such as the CSG and the CRDS on the basis of the income received by a self-employed person covered by social insurance in that Member State, including the share of that person’s income obtained in another Member State which is subject to tax in that State, (19) from refraining from making such a levy on that income on the ground that those contributions are covered by the Double Taxation Convention between those two Member States.

40.       In other words, the question is whether Regulation No 1408/71 requires the competent Member State to include in the base on which contributions such as the CSG and the CRDS are assessed, income derived from professional activity in a self-employed capacity performed in another Member State by a self-employed person covered by social insurance in the first Member State.

B –    The obligation to include in the basis for assessment of contributions such as the CSG and the CRDS a self-employed person’s total income from self-employment (Article 14d(1) of Regulation No 1408/71)

41.      In order to answer the query raised in the preceding point it should be noted first of all that the system put in place by Regulation No 1408/71 is merely a system of coordination, concerning inter alia, in Title II of that regulation (which includes Articles 13 and 14), the determination of the legislation applicable to employed and self-employed persons who make use, in various circumstances, of their right to freedom of movement. (20) In the absence of harmonisation at Community level, the Court has held that it is for the legislation of the Member State concerned to determine the conditions governing the right or duty to be insured with a social security scheme, the level of contributions payable by insured persons and the income to be taken into account when calculating social security contributions. (21)

42.      It was pursuant to that case-law that the Court rejected in Nikula the principle that a Member State cannot assess social contributions on the basis of pensions paid by another Member State. (22) In a case in which an institution of the Member State in whose territory a person resides pays a pension to that person and an institution of the same Member State is responsible for payment of his sickness insurance expenses, the Court held that no provision of Regulation No 1408/71 prohibits that Member State from calculating the amount of the social contributions of that person on the basis of his total income, whether it comes from pensions paid by the Member State of residence or from pensions paid by another Member State. (23) The Court, however, made a general observation that it is necessary, when the Member State concerned exercises that power, for it to comply with Community law, (24) which in that case meant that the system put in place by the Member State of residence should take into account the sickness insurance contributions already paid by pensioners during their working years in a Member State other than the Member State of residence. (25)

43.      Is what the provisions of Regulation No 1408/71 do not prohibit in the situation described above imposed as a requirement on the Member State of residence in respect of the calculation of contributions such as the CSG and the CRDS on the total income of a self-employed person such as Mr Derouin?

44.      Mr Derouin and the French Government suggest that the answer to this should be negative. They consider in essence that the exemption from payment of the CSG and the CRDS which Mr Derouin would receive under the Double Taxation Convention would not affect the principles of Regulation No 1408/71, which include the single State principle, since Mr Derouin remains subject to French social security legislation and continues to receive all the benefits provided for by that legislation.

45.      However, with reference in particular to Allard, (26) the Urssaf and the Commission consider that it is contrary to Regulation No 1408/71 for a Member State to refrain from levying contributions which fall within the scope of that regulation. Although, in its written observations, the United Kingdom had supported the same view as that put forward by Mr Derouin and the French Government, at the hearing it concurred with the line of argument put by the Commission, contending, in particular, that Member States must observe Community law when exercising their fiscal competence.

46.      It must be noted that Article 14d(1) of Regulation No 1408/71 provides that ‘[t]he person referred to in Article … 14a(2), … shall be treated, for the purposes of application of the legislation laid down in accordance with [that provision], as if he pursued all his professional activity or activities in the territory of the Member State concerned’. (27)

47.      As Advocates General Jacobs and Ruiz-Jarabo Colomer have rightly stated, Article 14d(1) of Regulation No 1408/71 lays down rules determining the basis on which contributions to national social security schemes from the person to which it relates are to be levied so that the contributions which must be paid in the Member State whose legislation is designated are calculated on the basis of the person’s total income obtained in all of the Member States concerned. (28)

48.      The Court upheld this view in its judgment in Allard, delivered on 26 May 2005. In that case Mr Allard, who was resident in Belgium and was in receipt of income from professional activities pursued in a self-employed capacity in that Member State and in France, contested whether it was possible for the Kingdom of Belgium to assess the so-called ‘moderation contribution’, allocated to the self-employed persons’ old-age and survivor’s pension scheme, on the basis of all that income, without that contribution giving rise, in return, to any entitlement to benefit. (29)

49.      In a matter referred to it by a Belgian court, the Court was asked mainly whether Article 13 et seq. of Regulation No 1408/71 preclude the imposition of a contribution such as the moderation contribution on the whole of the income of a self-employed person in respect of professional activities as a self-employed person both in the State of residence and in another Member State.

50.      Noting that the situation in the main proceedings did fall within the substantive and personal scope of Regulation No 1408/71, and in particular that Mr Allard was, according to Article 14a(2) of that regulation, subject to the Belgian social security scheme, (30) the Court held in respect of Article 14d(1) of that regulation that ‘a person in the situation described in the order for reference who is simultaneously self-employed in Belgium and in France must be subject, as a result of the latter activity, to the appropriate Belgian legislation under the same conditions as if he was self-employed in Belgium’. (31) It follows, according to the Court, that a social security contribution such as the moderation contribution payable in Belgium by Mr Allard ‘must be calculated taking into account the income received in France’. (32) The Court therefore concluded that ‘Article 13 et seq. of Regulation No 1408/71 require a contribution such as the moderation contribution to be calculated in such a way as to include under the heading of occupational income the income obtained in the territory of a Member State other than the Member State whose social legislation is applicable’ even if payment of that contribution does not give rise to any benefit in return. (33)

51.      It is somewhat curious that, in the grounds of that judgment, the Court should not have mentioned the part of a sentence in Article 14d(1) of Regulation No 1408/71 that I regard as crucial, which states that it is ‘for the purposes of application of the legislation laid down in accordance with these provisions’ that activities pursued in a self-employed capacity in another Member State are to be treated in the same way as those pursued in the Member State which is competent according to that regulation to levy social security contributions. (34) To have mentioned that sentence would have had the benefit of providing a better relationship between paragraphs 21 to 23 of the grounds of the judgment, by emphasising the fact that Article 14d(1) of Regulation No 1408/71 guarantees the self-employed person, in particular, that the social security contributions are calculated in accordance with the legislation determined in accordance with Article 14a(2) of that regulation.

52.       The fact remains, as the Commission has stated, that it follows in particular from the interpretation of Article 14d(1) of Regulation No 1408/71 given in Allard that the Member State whose social security legislation is designated in accordance with Article 14a(2) of Regulation No 1408/71 must levy contributions falling within the scope of that regulation on the total income of a self-employed person derived from self-employment both in the Member State whose legislation is designated and in another Member State. (35)

53.      It should be added, moreover, that in the present case neither Mr Derouin nor the French Government denies that, unlike the CSG and the CRDS, the family allowance contributions paid by Mr Derouin are, quite rightly, based on the latter’s total income from self-employment in France and in the United Kingdom. From the viewpoint of Community law, and hence irrespective of their classification under French domestic law, inasmuch as the CSG and the CRDS fall within the scope of Regulation No 1408/71 they must be assessed, according to Article 14d(1) of that regulation, on the base of Mr Derouin’s total income.

54.      The obligation under Article 14d(1) of Regulation No 1408/71 appears to arise from a concern to ensure, so far as possible, equal treatment in the area of social security between, on the one hand, migrant workers, and, on the other hand, workers in general active in the territory of a Member State.

55.      First of all, as regards equality of treatment between migrant workers, the Court stated in Hervein and Others that Article 14d(1) of Regulation No 1408/71, which applies also to a person who is simultaneously employed and self-employed in the territory of different Member States by virtue of Article 14c(a) of that regulation, seeks to prevent a situation where that person ‘finds that some of his activities are not covered by any social security legislation’. (36)

56.      Of course, the background to that statement is different from that to the present case. In Hervein and Others the Court was questioned on the validity of the derogation from the single State principle contained in Article 14c(b) of Regulation No 1408/71 and Annex VII thereto, a derogation which allows, in the case of the Member States listed in Annex VII to that regulation, simultaneous application of the social security legislation of two Member States in whose territory a worker pursues activities as an employed and a self-employed person. After confirming the validity of the above-mentioned provisions the Court put forward the Community legislature’s concern, expressed clearly in Article 14d(1) of Regulation No 1408/71, to ensure equality of treatment between the workers referred to in Article 14c(a) and (b) of that regulation, so that, unlike those people who fall within the simultaneous application of two national social security legislations under Article 14c(b) in respect of each of their activities, (37) those who fall within a single legislation under Article 14c(a) do not avoid all social security legislation as regards a part of their activities.

57.      However, I do not think that the interpretation of Article 14d(1) of Regulation No 1408/71, read in conjunction with Article 14a(2) of that regulation, can differ fundamentally from that given in Hervein and Others. More specifically, the wording of Article 14d(1) of that regulation is sufficiently clear to give legitimate reason to believe that the Community legislature did not intend to allow Member States to agree bilaterally that a person who pursues activities in their respective territories in a self-employed capacity should avoid all social security legislation as regards a part of his activities.

58.      Nonetheless, it must be agreed that this is not so in the case in the main proceedings. The refusal of the French Republic to levy the CSG and the CRDS on the income Mr Derouin received from self-employment in the United Kingdom does not result in total exemption from social security levies payable in France in respect of those activities and hence to the application of no social security legislation in respect of those activities, since Mr Derouin, as was stated in point 53 of this Opinion, continues to pay, among other things, family allowance contributions in accordance with French social security legislation on the whole of his income derived from self-employment in both Member States.

59.      Then, in making self-employed persons who pursue a professional activity in that capacity in more than one Member State subject to a single system of social legislation in respect of their whole income, Article 14d(1) of Regulation No 1408/71, read in conjunction with Article 14a(2) of that regulation, also seeks to ensure equal treatment of all workers occupied in the territory of a Member State, without penalising those who exercise their right to freedom of movement. (38)

60.      It will also be remembered that the obligation to calculate contributions falling within the scope of Regulation No 1408/71 on the basis of the whole income from activities pursued in a self-employed capacity by a person in the situation referred to in Article 14a(2) of that regulation was held to be in keeping with Article 43 EC. (39)

61.      However, Mr Derouin and the French Government contend, in essence, that it is not contrary to Regulation No 1408/71 for a Member State whose legislation is designated in accordance with that regulation to grant, in pursuance of its commitments under tax conventions, which have entered into domestic law, more favourable treatment to a worker who has exercised his right to freedom of movement than to a worker who pursues all his activities in a self-employed capacity in that Member State.

62.      At first sight, and without wishing to undermine the claim that Mr Derouin receives more favourable treatment (at least from the point of view of the availability of net income obtained from pursuing his activities in a self-employed capacity), under the Double Taxation Convention, than a self-employed person pursuing activities exclusively in that capacity in France, this view would seem convincing. However, it comes up against several obstacles, as will be explained below.

C –    The obstacles to applying a derogation provided for in a convention to the obligation laid down in Article 14d(1) of Regulation No 1408/71

63.      As the United Kingdom Government and the Commission have rightly maintained, it is settled case-law that in the exercise of their powers, in particular in the matter of direct taxation, the Member States are required to observe Community law. (40) As was stated in point 27 above, with regard to the prevention or avoidance of double taxation, irrespective of any relevant measure of unification or harmonisation within the Community context, Member States retain the competence to decide on the criteria for the taxation of income in order, where appropriate by means of a convention, to avoid double taxation. As I have stated elsewhere,  (41) the current case-law of the Court draws a distinction between, on the one hand, the allocation of powers of taxation between Member States and, on the other hand, the exercise of the power of taxation by Member States, including the case where this is the result of a previous allocation of their powers of taxation by bilateral or unilateral agreement, in respect of which the Member States must comply with the Community rules. (42) 

64.      There is, therefore, no question but that, in the exercise of its powers of taxation or, in the present case, as a result of its choice to refrain from assessing the CSG and the CRDS on Mr Derouin’s UK-source income under the Double Taxation Convention, the French Republic must act in accordance with Community law.

65.      In that regard, Mr Derouin and the French Government consider that the concept of ‘legislation laid down in accordance with these provisions’, contained in Article 14d(1) of Regulation No 1408/71, refers to all the legislation of the competent Member State, including, where appropriate and in the present case, the Double Taxation Convention introduced into French domestic law. Consequently, the French Republic does no more than apply its own legislation in accordance with the mechanism for resolving conflicts of social security law provided for by the relevant provisions of Regulation No 1408/71.

66.      This argument fails to convince, for it loses sight of the fact that Regulation No 1408/71 merely designates the social security legislation applicable to employed and self-employed persons within the European Community who are in a given transborder situation and does not therefore refer to national legislation as a whole, which includes inter alia national employment law and tax laws. Under Article 14d(1) of Regulation No 1408/71, and as the URSSAF considered, the designated social security legislation implementing that provision must base the assessment of contributions falling within the scope of that regulation on the total income from self-employment by a person in the situation covered by Article 14a(2) of that regulation.

67.      Even if one were to accept the Commission’s argument, which does in fact have merit, that the provisions of the Double Taxation Convention at issue fall within the substantive scope of Regulation No 1408/71, it would still not mean that those provisions were covered by the concept of ‘legislation laid down’ used in Article 14d(1) of that regulation.

68.      According to Article 1(j) of Regulation No 1408/71, which defines the term ‘legislation’ for the purposes of implementing that regulation, it means ‘in respect of each Member State statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4 (1) and (2) or those special non-contributory benefits covered by Article 4 (2a)’. That definition does not therefore mention international conventions in the field of social security (43) or, a fortiori, the provisions of other international conventions which, depending on circumstances, may fall within the substantive scope of Regulation No 1408/71.

69.      However, as the URSSAF and the Commission have aptly pointed out, social security conventions concluded between two or more Member States and the provisions of any convention which, regardless of the fact that it does not formally govern the area of social security, falls within the scope of Regulation No 1408/71, form the subject of specific provisions of that regulation, that is to say, Articles 6 to 8 thereof.

70.      We are aware that Article 6 of Regulation No 1408/71 sets out the principle that that regulation replaces inter alia any social security convention binding two Member States exclusively. That principle should, in my view, extend to the provisions of other bilateral conventions which fall within the scope of that regulation. Any other interpretation would enable Member States to evade the principle laid down in Article 6 by allowing them, by merely using a classification procedure, to remove from the scope of that regulation provisions of a convention which fall within it.

71.      Substitution of the principle laid down in Regulation No 1408/71 for bilateral conventions between Member States is however subject to several exceptions, but I shall mention only those which appear to have a relevant link with this case.

72.      First of all, it should be pointed out that, under the provisions of the EC Treaty, the Court has restricted application of the rule laid down in Article 6 of Regulation No 1408/71 to situations in which the workers concerned cannot assert rights acquired in order to retain the more favourable provisions contained in a convention binding two Member States, concluded before the entry into force of that regulation or before the accession of one of the Member States concerned to the Communities, and where the workers in question have exercised their right to freedom of movement by one or other of those dates. (44)

73.      However, the principle set out in Article 6 of Regulation No 1408/71 is unaffected and remains consistent with the provisions of the EC Treaty when the workers have exercised their right to freedom of movement after the entry into force of that regulation, or at a time when the bilateral social security convention has already been replaced by that regulation, even where the application of that convention would have placed the insured persons in a more favourable position. (45)

74.      Following this distinction, which it does not appear to me ought to be challenged, Mr Derouin would be unable to rely on the provisions of the Double Taxation Convention that fall within the scope of Regulation No 1408/71, inasmuch as it is common ground that he has exercised his right to freedom of movement after that regulation entered into force, which is confirmed by the fact that, as stated at the hearing, the contributions payment of which the URSSAF claims from him in the main proceedings concern various periods between the years 2000 and 2005.

75.      Next, as the Commission mentioned at the hearing, the present case could involve application of Article 8 of Regulation No 1408/71, paragraph 1 of which, by way of derogation from Article 6, cited above, provides that two or more Member States may conclude ‘conventions with each other based on the principles and in the spirit of [that] regulation’. (46)

76.      Although Article 8(1) of Regulation No 1408/71 concerns ‘new’ conventions only, that is to say, those concluded after the entry into force of that regulation, (47) I do not consider it unreasonable to allow the benefit of that option afforded to Member States to be extended to international conventions which, although concluded in an area other than that of social security and before the entry into force of that regulation, contain provisions whose novelty and/or the amendments made to which in the context of relations arising from agreements between Member States lead to those provisions falling within the scope of that regulation. Nonetheless, as the Commission stated at the hearing, those provisions must always be based on the principles and spirit of Regulation No 1408/71. They must also satisfy the formal requirements laid down in Article 8(2) of that regulation, which imposes an obligation on contracting Member States to notify the conventions concerned, in accordance with the provisions of Article 97(1) of that regulation. (48)

77.      It is, however, beyond doubt that the provisions of the Double Taxation Convention that fall within the scope of Regulation No 1408/71 were not notified as required, even after the Court delivered the Commission v France judgments, in which it held that the CSG and the CRDS fell within the scope of that regulation, regardless of the fact that French domestic law classifies them as tax measures.

78.      It would therefore appear to be contrary to Regulation No 1408/71 for the French Republic to refrain, by virtue of the provisions of the Double Taxation Convention that fall within the scope of that regulation, from including in the base for assessing the CSG and the CRDS, by way of derogation from the provisions of Article 14d(1) of that regulation, the share of the income Mr Derouin receives from self-employment in the United Kingdom.

79.      That solution does not, in my view, run the risk that a Member State whose legislation is designated in accordance with Regulation No 1408/71 will infringe the provisions of the Treaty, on the ground that the national measures which implement the obligation contained in Article 14d(1) of that regulation hinder the exercise of one of the freedoms of movement provided for by the Treaty.

80.      As the Court has held, the Treaty offers no guarantee to a worker that extending his activities into more than one Member State will be neutral as regards social security. Given the disparities in the social security legislation of the Member States, such an extension may be to the worker’s advantage or not, according to circumstance. It follows that, even where its application is less favourable, national social security legislation is still compatible with Articles 39 EC and 43 EC if (a) it does not place that worker at a disadvantage as compared with those who pursue all their activities in the Member State where it applies or as compared with those who were already subject to it and (b) if it does not simply result in the payment of social security contributions on which there is no return. (49).

81.       In the circumstances of the present case, by carrying out the obligation laid down in Article 14d(1) of Regulation No 1408/71 in respect of the whole of Mr Derouin’s income, the French competent authorities would not place him at a disadvantage in relation to persons who pursue all of their professional activities in a self-employed capacity within France and who are subject to levies falling within the scope of Regulation No 1408/71 on the whole of their occupational income derived from those activities. In addition, making Mr Derouin liable to the CSG and the CRDS on his UK-source income would not simply result in him paying contributions on which there is no return. Although payment of those two contributions does not give entitlement to any direct and identifiable social benefits in return, (50) the fact remains that, according to the solidarity principle on which those levies are based, the CSG and the CRDS each, respectively, cover the funding requirements and the debt of the French social security scheme which otherwise would probably have had to be met by increasing social security contributions or by reducing or limiting the payment of social security benefits. (51)

82.      To accept a solution different from that set out in point 78 above would, in my view, entail the real risk, in a situation such as that in the case in the main proceedings, of opening a breach in the equality of treatment provided for in Article 14d(1) of Regulation No 1408/71 ‘for the purposes of application of the legislation laid down’ in the field of social security, between all persons working in a self-employed capacity in the territory of the Member State concerned. Apart from the derogations expressly provided for by Regulation No 1408/71, such a breach does not appear to have been envisaged by the Community legislature. As stated in points 79 to 81 above, nor does it appear to be required by Article 43 EC.

83.      Moreover, to tolerate such a derogation would amount to making the interpretation of Article 14d(1) of Regulation No 1408/71 dependent on the specific features of the particular cases heard by the Court, requiring the latter to determine the conditions in which eligibility for that derogation would be allowed and, where necessary, to specify those conditions as and when cases were brought before it.

84.      In addition to the obstacles of a legal nature described above, it does not seem to me advisable to follow that path.

85.      If the Court were, however, to decide not to apply the analysis set out in this Opinion, it would, to my mind, be appropriate to limit the scope of a derogation provided for in a convention from the obligation provided for in Article 14d(1) of Regulation No 1408/71 to situations in which the principles and spirit of that regulation were not affected. Such a derogation would, therefore, be accepted in particular when, first, the single State principle is preserved, second, the derogation does not have the effect of excluding from the scope of the designated social security legislation persons to whom it applies, (52) and third, the derogation does not leave the worker concerned without social security protection (53) or reduce the protection which he would normally receive under the designated social security legislation. I also consider it is important, for reasons of legal certainty and transparency, that such a derogation provided for in a convention should satisfy the formal notification requirements laid down in Article 8(2) of Regulation No 1408/71.

86.      Nevertheless, I consider that Article 14d(1) of Regulation No 1408/71 must be interpreted as meaning that it requires that the base for contributions such as the CSG and the CRDS, calculated on occupational and substitute income and which fall within the scope of that regulation, should include, in a self-employed person’s occupational income derived from self-employment, income obtained in a Member State other than the Member State whose social security legislation is applicable, even when the Member States concerned, in the present case the French Republic and the United Kingdom, are bound by the provisions of a convention for the avoidance of double taxation of income, and the conditions laid down in Article 8 of Regulation No 1408/71 have not been satisfied.

VI –  Conclusion

87.      In the light of the above considerations, I propose that the Court should give the following answer to the question referred by the Tribunal des affaires de sécurité sociale de Paris:

Article 14d(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1606/98 of 29 June 1998 must be interpreted as meaning that it requires that the base for contributions such as French general social contribution and the social debt repayment contribution, calculated on occupational and substitute income and which fall within the scope of that regulation, should include, in a self-employed person’s occupational income derived from self-employment, income obtained in a Member State other than the Member State whose social security legislation is applicable, even when the Member States concerned are bound by the provisions of a convention for the avoidance of double taxation of income, such as those of the Convention between the United Kingdom of Great Britain and Northern Ireland and the French Republic of 22 May 1968 for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, and the conditions laid down in Article 8 of Regulation No 1408/71 have not been satisfied.

1 – Original language: French.

2 – OJ 1997 L 28, p. 1.

3 – OJ 1998 L 209, p. 1.

4 – It should be noted that Regulation No 1408/71 was (formally) replaced by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1; corrigendum in OJ 2004 L 200, p. 1), which entered into force on 20 May 2004. However, Regulation No 883/2004 will not, according to Article 91 of that regulation, be applicable until the entry into force of the Implementing Regulation, the adoption of which at the time of reading this Opinion is still the subject of the inter-institutional legislative procedure on the basis of the Proposal for a Regulation of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, adopted by the Commission on 31 January 2006 (COM (2006), 16 final). Regulation No 1408/71 is therefore only applicable to the situation which gave rise to the present case.

5 – JORF of 30 December 1990, p. 16367.

6 – Unemployment benefits are currently rated at 6.2% and retirement and invalidity pensions at 6.6%.

7 – According to Article L. 135-1 of the Social Security Code, this fund, which was set up as a State agency of administrative character, is responsible for non-contributory old-age insurance benefits covered by national solidarity.

8 – Under the provisions of Law No 2004-626 of 30 June 2004 concerning solidarity for the independence of the elderly and the disabled (JORF, 1 July 2004, p. 11944). The Caisse nationale de solidarité pour l’autonomie, a State agency of administrative character, is responsible for contributing to the funding of support for the loss of independence of the elderly and the disabled.

9 – JORF of 25 January 1996, p. 1226.

10 – JORF 25 November 1969. The French text of this convention is available at: http://www2.impots.gouv.fr/conventions_fiscales/ru68.htm

11 – See, in particular, Case C-493/04 Piatkowski [2006] ECR I-2369, paragraph 21.

12 – See, in particular, Case 102/76 Perenboom [1977] ECR 815, paragraph 13); Case C-60/93 Aldewereld [1994] ECR I-2991, paragraph 26; and Case C-68/99 Commission v Germany [2001] ECR I-1865, paragraph 25.

13 – The Court has consistently held that, irrespective of certain Community measures that are not relevant in the present case [Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6); Convention 90/436/EEC of 23 July 1990 on the elimination of double taxation in connection with the adjustment of profits of associated enterprises (OJ 1990 L 225, p. 10), and Council Directive 2003/48/EC of 3 June 2003 on taxation of savings income in the form of interest payments (OJ 2003 L 157, p. 38)], Member States retain powers in the matter of direct taxation, in particular as regards the elimination or avoidance of double taxation by means of a convention (see, in particular, Case C-336/96 Gilly [1998] ECR I-2793, paragraphs 24 and 30, and Case C-374/04 Test Claimants in Class IV of the ACT Group Litigation [2006] ECR I-11673, paragraph 52).

14 – See to that effect Piatkowski, paragraphs 24, 27 and 28.

15 – To quote the words of the French Government appearing in the grounds of the judgments in Case C-34/98 Commission v France [2000] ECR I-995, paragraph 25 (CRDS), and Case C-169/98 Commission v France [2000] ECR I-1049, paragraph 23 (CSG).

16 – Case C-34/98 Commission v France, paragraphs 34 to 36, and Case C-169/98 Commission v France, paragraphs 32 to 34.

17 – Case C-265/05 [2007] ECR I-347. In that case the Court was asked whether a supplementary allowance paid in addition to a principal old-age benefit only to French residents who have reached a minimum age, which is listed in Annex IIa to Regulation No 1408/71, should be described as a ‘special non-contributory benefit’ within the meaning of Article 4(2a) of that regulation, in which case a non-resident applicant cannot receive it, or whether, on the contrary, it should not be so described, in which case it should be awarded to any person who satisfies the age conditions, under Article 19(1) of Regulation No 1408/71, irrespective of the Member State in which that person is resident (under the so-called ‘exportability of benefits’ rule). In order to check whether or not this benefit is contributory the Court, in accordance with its case-law, considered how the benefit concerned is actually financed, that is to say, whether that financing comes directly or indirectly from social contributions or from public resources. Since the benefit concerned is financed by the Fonds de solidarité de viellesse (Old-age Solidarity Fund) a beneficiary, as stated above, of the proceeds of the CSG based on occupational income and substitute income, it was necessary, as the Court stated in paragraph 40 of that judgment, to ‘determine’ whether the CSG must be regarded as a social security contribution or as public resources which do not have the characteristics of such a contribution. After summarising the essential grounds of the Commission v France judgments, the Court, in the light of a number of considerations concerning in particular the fact that the old-age benefit was not funded exclusively from the CSG but also from levies whose fiscal nature had not been challenged, concluded in paragraph 52 of that judgment that ‘even if the part of the [CSG] based on earned income and substitute income must be regarded as a contribution rather than financing from public resources, the link between that contribution and the supplementary allowance is not sufficiently identifiable for that allowance to be classified as a contributory benefit’ (emphasis added). In the light of this last point, it is difficult to reach a definite conclusion on the description of the CSG as a social security contribution. However, that judgment confirms that the CSG does fall within the substantive scope of Regulation No 1408/71.

18 – See to that effect Case C-265/04 Bouanich [2006] ECR I-923, paragraph 51 and case-law cited therein, and Case C-170/05 Denkavit Internationaal and Denkavit France [2006] ECR I-11949, paragraph 45 and case-law cited therein. See also points 46 and 47 of the Opinion I delivered on 29 March 2007 in Case C-298/05 Columbus Container Services (pending before the Court).

19 – The French Government does not deny that it is competent to levy such contributions and any other social security contribution on Mr Derouin’s income from the United Kingdom on the basis of objective criteria. This approach seems to be correct in the circumstances of the dispute in the main proceedings. See also, in respect of the situation of a Member State which bases social security contributions on the total income of a resident who is a social security contributor in that Member State from pensions paid both in that State and in another Member State, Case C-50/05 Nikula [2006] ECR I-7029, paragraph 31.

20 – See to that effect, in particular, Joined Cases C-393/99 and C-394/99 Hervein and Others [2002] ECR I-2829, paragraph 52, and Piatkowski, paragraph 20.

21 – Piatkowski, paragraph 32 and case-law cited therein.

22 – Paragraph 26.

23 – Ibid., paragraph 31.

24 – Ibid., paragraph 24. See also Piatkowski, paragraph 33.

25 – Nikula, paragraph 33. See also to that effect Case C-302/98 Sehrer [2000] ECR I-4585, paragraph 36.

26 – Case C-249/04 [2005] ECR I-4535.

27 – Emphasis added.

28 – See point 68 of the Opinion of Advocate General Ruiz-Jarabo Colomer in Case C-18/95 Terhoeve [1998] ECR I-345); point 41 of his Opinion in Sehrer; point 24 of his Opinion in Commission v Germany, and point 55 of the Opinion of Advocate General Jacobs in Hervein and Others. See also point 20 of the Opinion of Advocate General Gulmann in Case C-71/93 VanPoucke [1994] ECR I-1101.

29 – As is clear from paragraph 15 of Allard, the nature of that contribution, like the CSG and the CRDS in the present case, appeared to be in dispute because the national court considered that that contribution is more like ‘a form of emergency tax’ than a contribution falling within the substantive scope of Regulation No 1408/71.

30 – Allard, paragraphs 18 and 20.

31 – Ibid., paragraphs 21 and 22.

32 – Ibid., paragraph 23 (emphasis added).

33 – Ibid., paragraph 24 (emphasis added).

34 – It is to be noted that paragraph 24 of VanPoucke, to which paragraph 21 of the judgment in Allard refers, does however mention the sentence whose omission is criticised here.

35 – It may be appropriate to point out that this interpretation was also given in Article 13(5) of Regulation No 883/2004, which provides that persons who pursue activities in two or more Member States are to be treated as though they were pursuing all their activities as employed or self-employed persons and were receiving all their income in the Member State whose legislation is determined in accordance with Article 13(1) to (4).

36 – Paragraph 60 (emphasis added).

37 – This statement was made in the judgment in Piatkowski, paragraphs 27 to 29. As Regulation No 1408/71 precludes the imposition of double contributions in respect of the same income, in the cases referred to in Annex VII to Regulation No 1408/71 an insured person is subject to the legislation of the Member State in which he pursues an activity as an employed person as regards that activity, and to the legislation of the Member State in which he pursues an activity as a self-employed person as regards such self-employment.

38 – See to that effect, Allard, paragraph 31.

39 – Ibid., paragraphs 28 to 32, and paragraph 2 of the operative part.

40 – See, in particular, Case C-279/93 Schumacker [1995] ECR I-225, paragraph 21; Case C-264/96 ICI [1998] ECR I-4695, paragraph 19; Case C-35/98 Verkooijen [2000] ECR I-4071, paragraph 32; and Case C-55/00 Gottardo [2002] ECR I-413, paragraph 32.

41 – Point 84 of my Opinion in Columbus Container Services.

42 – See in particular Case C-385/00 De Groot [2002] ECR I-11819, paragraphs 93 and 94, and Case C-290/04 FKP Scorpio Konzertproduktionen [2006] ECR I-9461, paragraph 55.

43 – Case C-23/92 Grana-Novoa [1993] ECR I-4505, paragraph 15).

44 – See, in particular, Case C-277/89 Rönfeldt [1991] ECR I-323, paragraphs 27 to 29; Case C-277/99 Kaske [2002] ECR I-1261, paragraphs 27 and 28; and Case C-471/99 Martínez Domínguez and Others [2002] ECR I-7835, paragraphs 28 to 30.

45 – Case C-475/93 Thévenon [1995] ECR I-3813, paragraphs 26 and 28). In that case the bilateral convention in question had been concluded in 1950. See also Joined Cases C-31/96 to C-33/96 Naranjo Arjona and Others [1997] ECR I-5501, paragraph 26, and Case C-153/97 Grajera Rodríguez [1998] ECR I-8645, paragraph 28. It should be pointed out that that case-law was reproduced in essence in Article 8(1) of Regulation No 883/2004, cited above.

46 – I would point out that that derogation is reproduced in Article 8(2) of Regulation No 883/2004.

47 – Grana-Novoa, paragraph 22, and Case C-305/92 Hoorn [1994] ECR I-1525, paragraph 19.

48 – It should be noted that a similar notification requirement is also contained in Article 9(1) of Regulation No 883/2004, cited above.

49 – See to that effect Hervein and Others, paragraph 51, and Piatkowski, paragraph 34.

50 – Case C-34/98 Commission v France, paragraph 39, and Case C-169/98 Commission v France, paragraph 37, both judgments cited above.

51 – See points 9 and 26 of the Opinions of Advocate General La Pergola in the Commission v France judgments, and the judgment in Case C-169/98 Commission v France, paragraph 36.

52 – See Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraph 20.

53 – See Kits van Heijningen, paragraph 12; Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 28, and Case C-227/03 Van Pommeren-Bourgondiën [2005] ECR I-6101, paragraph 34.