Raad van bestuur van de Sociale verzekeringbank (Intervalles entre des missions de travail interimaire) (Social security for migrant workers - Person residing in one Member State and employed in another Member State - Judgment) [2022] EUECJ C-713/20 (13 October 2022)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Raad van bestuur van de Sociale verzekeringbank (Intervalles entre des missions de travail interimaire) (Social security for migrant workers - Person residing in one Member State and employed in another Member State - Judgment) [2022] EUECJ C-713/20 (13 October 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C71320.html Cite as: [2022] EUECJ C-713/20, ECLI:EU:C:2022:782, EU:C:2022:782

(Reference for a preliminary ruling – Social security for migrant workers – Regulation (EC) No 883/2004 – Article 11(3)(a) and (e) – Person residing in one Member State and employed in another Member State – Employment contract or contracts entered into with a single temporary employment agency – Temporary work assignments – Intervening periods – Determination of the legislation applicable during intervening periods between temporary work assignments – Termination of the employment relationship)

REQUEST for a preliminary ruling under Article 267 TFEU from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands), made by decision of 17 December 2020, received at the Court on 24 December 2020, in the proceedings

composed of A. Prechal, President of the Chamber, M.L. Arastey Sahún, F. Biltgen (Rapporteur), N. Wahl and J. Passer, Judges,

– the Raad van bestuur van de Sociale verzekeringsbank, by G.J. Oudenes and H. van der Most, acting as Agents,

– the Netherlands Government, by M.K. Bulterman and P. Huurnink, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 17 March 2022,

1 This request for a preliminary ruling concerns the interpretation of Article 11(3)(a) and (e) of 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, and corrigendum OJ 2004 L 200, p. 1).

2 The request has been made in proceedings between, first, the Raad van bestuur van de Sociale verzekeringsbank (Board of Management of the Social Insurance Bank, Netherlands) (‘the SVB’) and X, and second, Y and the SVB concerning the latter’s refusal to grant to X and to Y social benefits under the Netherlands social security scheme.

3 The purpose of Regulation No 883/2004, which entered into force on 20 May 2004, is the coordination of national social security schemes. In accordance with Article 91 thereof, it has been applicable since the date of entry into force of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation No 883/2004 (OJ 2009 L 284, p. 1), namely, 1 May 2010.

(a) “activity as an employed person” means any activity or equivalent situation treated as such for the purposes of the social security legislation of the Member State in which such activity or equivalent situation exists;

(b) “activity as a self-employed person” means any activity or equivalent situation treated as such for the purposes of the social security legislation of the Member State in which such activity or equivalent situation exists;

5 Title II of that regulation, entitled ‘Determination of the legislation applicable’, includes, inter alia, Article 11, itself entitled ‘General rules’, paragraphs 1 to 3 of which provide:

‘1. Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.

2. For the purposes of this Title, persons receiving cash benefits because or as a consequence of their activity as an employed or self-employed person shall be considered to be pursuing the said activity. This shall not apply to invalidity, old-age or survivors’ pensions or to pensions in respect of accidents at work or occupational diseases or to sickness benefits in cash covering treatment for an unlimited period.

(a) a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;

(b) a civil servant shall be subject to the legislation of the Member State to which the administration employing him/her is subject;

(c) a person receiving unemployment benefits in accordance with Article 65 under the legislation of the Member State of residence shall be subject to the legislation of that Member State;

(d) a person called up or recalled for service in the armed forces or for civilian service in a Member State shall be subject to the legislation of that Member State;

(e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States.’

6 Article 6(1) and (3) of the Algemene Ouderdomswet (General law on old-age pensions) of 31 May 1956 (Stb. 1956, No 281), in the version applicable to the facts in the main proceedings (‘the AOW’), provides:

‘1. In accordance with the provisions of this law, a person shall be insured provided he or she has not yet reached retirement age and

(b) is not a resident but is subject to income tax for work carried out in the Netherlands or on the continental shelf.

3. By derogation from paragraphs 1 and 2, the category of insured persons may be extended or limited by a general administrative measure’.

(a) persons shall be considered to be insured persons if their insurance, on the basis of this law, results from the application of the provisions of a treaty or convention or a decision of an organisation of public international law;

(b) persons shall not be considered to be insured persons if, by virtue of a treaty or convention or a decision of an organisation of public international law, the legislation of another State applies to them.’

8 Article 13(1)(a) of the AOW provides that a reduction of 2% is to be applied to the pension amount for every calendar year during which the person entitled to the pension was not insured after reaching the age of 15 years but before reaching the age of 65 years.

9 Article 6 of the Algemene Kinderbijslagwet (General law on child benefits) of 26 April 1962 (Stb. 1962, No 160), in the version applicable to the facts in the main proceedings (‘the AKW’), reproduces, in identical terms, the wording of Article 6 of the AOW.

(b) for the purposes of Chapter 3 of this law, persons shall be considered to be “insured” even if they are not insured and have acquired a right to family benefits within the meaning of [Regulation No 883/2004];

(c) persons shall not be considered to be insured persons if, by virtue of a treaty or convention or a decision of an organisation of public international law, the legislation of another State applies to them.’

11 Article 6 of the Besluit uitbreiding en beperking kring verzekerden volksverzekeringen 1999 (Decree of 1999 on the extension and restriction of the category of persons insured in respect of national insurance) of 24 December 1998 (Stb. 1998 No 746) (‘the BUB’), entitled ‘Temporary interruption of work in the Netherlands’, provides:

‘A person who does not reside in the Netherlands but who works exclusively in the Netherlands shall remain covered by social insurance if their work is temporarily interrupted:

The facts of the main proceedings and the questions referred for a preliminary ruling

12 As from 14 January 2013, X, a Netherlands national residing in Germany, began to work as an employed person in the Netherlands through the intermediary of a temporary employment agency. The contract of employment entered into with that agency provided that the employment relationship would begin at the time of the actual commencement of the work assignment and would end automatically as soon as, at the request of the user undertaking, that assignment ended.

13 Under that contract, X performed several temporary work assignments, spaced apart at periods ranging, for the longest, from 19 October 2013 to 30 March 2014 and, for the shortest, from 20 to 25 September 2014, and from 23 to 28 January 2015.

14 During those periods, X was a volunteer in the Netherlands and carried out unpaid family care work. She also performed domestic work with her sons, for which she received very low remuneration.

15 By decision of 6 July 2015, the SVB, at X’s request, informed her of her pension rights under the AOW, from which it is apparent that, on 30 January 2015, she had accrued 82% of the full old-age pension under the AOW. The SVB took the view, in that regard, that, in so far as she was resident in Germany, X was insured under the Netherlands social security scheme only during the periods when she had actually worked for the temporary employment agency in the Netherlands, but not during the intervening periods between her temporary work assignments.

16 After her complaint against that decision was rejected as unfounded by decision of the SVB of 21 December 2015, X brought an action before the rechtbank Amsterdam (District Court, Amsterdam, Netherlands).

17 By judgment of 3 October 2016, that court ordered the SVB to adopt a new decision. The court held, referring, in particular, to the judgment of 23 April 2015, Franzen and Others (C‑382/13, EU:C:2015:261), that the intervening periods between the temporary work assignments carried out by X had to be regarded as periods of leave or unemployment within the meaning of Article 6 of the BUB, with the result that, during those intervening periods, X was covered by the Netherlands legislation.

18 The SVB appealed against that judgment before the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands), the referring court in the present case.

19 The referring court states that, since X has not completed a period of insurance in Germany, she cannot claim an old-age pension in that Member State.

20 As from 16 July 2007, Y, a Polish national residing with his family in Poland, began to work as an employed person in the Netherlands through a temporary employment agency with which he entered into successive employment contracts, spaced several periods apart.

21 On 20 July 2015, Y entered into a fixed-term employment contract of eight months with that agency, which provided that, if the work in the user undertaking were to cease, Y would be required, during the term of that contract, to accept suitable replacement work and that the contract would end if he refused or was no longer prepared to work. As the latter situation arose, that contract came to an end on 31 December 2015.

22 Y, who had not worked between 1 January and 7 February 2016, entered into a new employment contract with the same agency on 8 February 2016.

23 By decision of 29 March 2016, the SVB informed Y that he was not entitled to child benefit under the Netherlands social security scheme for the months of January and February 2016 since he had not been working in the Netherlands on the first working day of each of those months.

24 Following the rejection of his complaint by decision of the SVB of 20 May 2016, Y brought an action before the rechtbank Amsterdam (District Court, Amsterdam).

25 By judgment of 5 January 2017, that court dismissed the action as unfounded. It found that the employment contract of 20 July 2015 had ended during the period between 1 January and 7 February 2016 and stated that it had not been established that paid or unpaid leave had been provided for under that contract. Therefore, that period could not constitute a temporary interruption of work within the meaning of Article 6 of the BUB.

26 Y appealed against that judgment before the Centrale Raad van Beroep (Higher Social Security and Civil Service Court).

27 The referring court notes that X and Y were insured under the AOW and the AKW respectively during the periods in which they carried out temporary work assignments in the Netherlands and that the disputes in the main proceedings concern whether their affiliation to the Netherlands social security scheme ceased during the intervening periods between those assignments. That court finds that it is necessary, for that purpose, to determine the legislation applicable during those intervening periods pursuant to Regulation No 883/2004.

28 It observes, in that regard, that, according to Article 11(1) of Regulation No 883/2004, persons to whom that regulation applies are to be subject to the legislation of a single Member State only, which is determined in accordance with the provisions of Article 11(3) of that regulation.

29 The referring court finds that, in order for Article 11(3)(a) of Regulation No 883/2004 to apply, there must be an activity or equivalent situation within the meaning of Article 1(a) of that regulation, which is regarded as such for the purposes of the application of the social security legislation of the Member State in which that activity is pursued or the equivalent situation exists.

30 In the present case, the situations of X and of Y during the intervening periods between their work assignments do not constitute activity as an employed person within the meaning of Article 1(a) of Regulation No 883/2004. Under Netherlands law, the activities carried out by X in the Netherlands during those intervening periods cannot be regarded as activity as an employed person. Similarly, under Netherlands law Y was not employed during those intervening periods because his employment contract had come to an end at that time. Furthermore, no unpaid leave was agreed in advance and the employment contract of 8 February 2016 was entered into for a period exceeding the expiry date initially provided for in the previous employment contract.

31 The referring court is, therefore, uncertain whether the situations of X and of Y during the intervening periods between their temporary work assignments can be regarded as ‘equivalent situation[s]’ within the meaning of Article 1(a) of Regulation No 883/2004.

32 It observes, in that regard, that there was no longer an employment relationship during the intervening periods between the temporary work assignments carried out by X and Y, with the result that they cannot be regarded as having been, during those periods, workers within the meaning of Netherlands law.

33 The referring court adds that, as is apparent from the judgment of 19 September 2019, van den Berg and Others (C‑95/18 and C‑96/18, EU:C:2019:767), the Member State of employment is not required to make subject to its social security legislation a migrant worker residing in the territory of another Member State for the periods during which that worker is subject, under Title II of Regulation No 883/2004, to the social security legislation of the latter Member State, even though that legislation does not confer on that worker any entitlement to an old-age pension or child benefit. Therefore, the fact that the persons concerned were not entitled to similar benefits in their Member State of residence is irrelevant.

34 However, the referring court is uncertain whether the legislation applicable during the intervening periods between the temporary work assignments of X and of Y must be determined in accordance with Article 11(3)(e) of Regulation No 883/2004.

35 It maintains, in that regard, that it is clear from the case-law of the Court, in particular from paragraph 50 of the judgment of 23 April 2015, Franzen and Others (C‑382/13, EU:C:2015:261) – delivered in the context of Regulation (EEC) No 1408/71 of 14 June 1971 of the Council on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (OJ 2006 L 392, p. 1), which would be applicable in the context of Regulation No 883/2004 – that persons normally pursuing their occupational activity in a Member State fall within the scope of Article 11(3)(a) of Regulation No 883/2004 for as long as they have not definitively or temporarily ceased that activity and that they remain subject to that legislation also on the days when they do not actually pursue that activity. Thus, the fact that there is an employment relationship is not decisive in that regard. The referring court does not, therefore, exclude the possibility that the intervening periods between the temporary work assignments of X and Y, in particular of X, do not actually constitute a cessation of their activity as an employed person in the Netherlands. It raises the question of the relevant factors which must be taken into account in that regard, in particular as to the period from which it must be considered that a person who, like X or Y, no longer has an employment relationship, has ceased working in the Member State of employment.

36 However, the referring court notes that it is also apparent from paragraph 51 of that judgment that a person is automatically subject to the legislation of the State of residence if he or she does not work for remuneration and has no employment relationship, even if he or she has only temporarily ceased working in the State of employment, the only exception being where the person concerned receives a benefit within the meaning of Article 11(2) of Regulation No 883/2004.

37 Taking those circumstances into account, the Centrale Raad van Beroep (Higher Social Security and Civil Service Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 11(3)(a) of Regulation (EC) No 883/2004 be interpreted as meaning that a worker who resides in a Member State, and works in the territory of another Member State on the basis of a temporary agency contract, under which the employment relationship ends as soon as the temporary assignment ends and is then resumed again, remains subject to the legislation of the latter Member State during the intervening periods, so long as he or she has not temporarily ceased that work?

(2) What factors are relevant for assessing whether or not there is a temporary cessation of activity in such cases?

(3) How much time must elapse before a worker who is no longer in a contractual employment relationship is to be regarded as having temporarily ceased his or her activity in the country of employment, unless there are concrete indications to the contrary?’

38 By its three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 11(3)(a) and (e) of Regulation No 883/2004 must be interpreted as meaning that a person residing in a Member State who carries out, through a temporary employment agency established in another Member State, temporary work assignments in the territory of that other Member State is to be subject, during the intervening periods between those temporary work assignments, to the national legislation of his or her Member State of employment, or to the national legislation of his or her Member State of residence.

39 According to settled case-law, the provisions of Title II of Regulation No 883/2004, of which Article 11(3) forms part, constitute a complete and uniform system of conflict rules, the aim of which is to ensure that workers moving within the European Union are subject to the social security scheme of only one Member State, in order to prevent more than one legislative system from being applicable and to avoid the complications which may result from that situation (see, to that effect, judgment of 20 May 2021, FORMAT Urządzenia i Montaże Przemysłowe, C‑879/19, EU:C:2021:409, paragraph 30 and the case-law cited).

40 To that end, Article 11(3)(a) of Regulation No 883/2004 establishes the principle that a person pursuing an activity as an employed or self-employed person in a Member State is to be subject to the social security legislation of that Member State.

41 As the Advocate General observed in point 63 of his Opinion, the existence of such an employment relationship becomes irrelevant only in the exceptional case referred to in Article 11(2) of Regulation No 883/2004, according to which persons receiving cash benefits because or as a consequence of their activity as an employed or self-employed person are considered to be pursuing that activity.

42 However, in the present case, it is apparent from the order for reference that, during the intervening periods between their temporary work assignments, X and Y did not receive the benefits referred to in Article 11(2) of Regulation No 883/2004.

43 It is, therefore, necessary to determine whether X and Y must be regarded as having pursued, during those intervening periods, an activity as an employed or self-employed person within the meaning of Article 11(3)(a) of Regulation No 883/2004.

44 In that regard, it should be noted that Article 1(a) of Regulation No 883/2004 defines ‘activity as an employed person’ as an activity or equivalent situation, which is treated as such for the purposes of the social security legislation of the Member State in which that activity is pursued or the equivalent situation exists.

45 In the present case, it is apparent from the file before the Court that X carried out her activity on the basis of a fixed-term temporary employment contract containing a clause under which the employment relationship was to commence upon the actual commencement of her activity and end when that activity ceased. It follows that, during the intervening periods between her temporary work assignments, there was no employment relationship between X and the temporary employment agency.

46 Furthermore, although, during those intervening periods, X was registered with several Netherlands temporary employment agencies, she did not carry out any temporary work assignments on behalf of those agencies. As regards the voluntary and domestic work performed by X in the Netherlands during those intervening periods, it is sufficient to note that it cannot, according to the referring court, be regarded as an activity as an employed person or an equivalent situation, for the purposes of the Netherlands legislation.

47 As regards Y, it is apparent from the order for reference that he worked on behalf of a temporary employment agency by means of a fixed-term employment contract which began on 20 July 2015 and ended on 31 December 2015 and that he entered into a new contract of employment with that same agency which commenced on 8 February 2016. Thus, during the intervening period between those two contracts, namely from 1 January to 7 February 2016, the employment relationship between Y and the temporary employment agency had ceased.

48 It follows that, as a result of the cessation of their occupational activity, X and Y were not pursuing activity as employed persons during the intervening periods between their temporary work assignments and were not in an equivalent situation, for the purposes of the Netherlands legislation. Consequently, they did not fall within the scope of Article 11(3)(a) of Regulation No 883/2004, with the result that they were not subject to Netherlands legislation.

49 That finding cannot be called into question by the judgment of 23 April 2015, Franzen and Others (C‑382/13, EU:C:2015:261), to which the Commission and the referring court make reference. In paragraphs 50 and 51 of that judgment, the Court held that the legislation of the Member State of employment remains applicable for as long as the person concerned is employed in the territory of that Member State but that, on the other hand, persons who have definitively or temporarily ceased their occupational activity are subject to the legislation of the Member State in which they reside. It follows that, as the Advocate General observed in points 82 and 84 of his Opinion, for the purposes of applying the legislation of the Member State of employment, the continued existence of an employment relationship is always necessary. The actual arrangements for the performance of work, such as the fact that the work is carried out on a part-time basis or on a casual basis, or that the specific obligations stemming therefrom are suspended, are irrelevant since they do not affect the continuous nature of an employment relationship.

50 In those circumstances, and in view of the finding made in paragraph 48 above, during the intervening periods between their temporary work assignments, X and Y fell within the scope of Article 11(3)(e) of Regulation No 883/2004, which constitutes a residual rule intended to apply to all persons who find themselves in a situation which is not specifically governed by other provisions of that regulation, which establishes a complete system for determining the applicable legislation (see judgment of 8 May 2019, Inspecteur van de Belastingdienst, C‑631/17, EU:C:2019:381, paragraph 31).

51 Indeed, that provision provides that any other person to whom subparagraphs (a) to (d) do not apply is to be subject to the legislation of the Member State of residence, without prejudice to other provisions of that regulation guaranteeing them benefits under the legislation of one or more other Member States. It applies both to persons who have definitively ceased their occupational activity and to those who have merely temporarily ceased their occupational activity (see, by analogy, judgment of 11 November 2004, Adanez-Vega, C‑372/02, EU:C:2004:705, paragraph 24).

52 In the present case, the situation of X and of Y during the intervening periods between their temporary work assignments did not correspond either to the situation provided for in Article 11(3)(a) of Regulation No 883/2004, as set out in paragraphs 45 to 48 above, or to those provided for in Article 11(3)(b) to (d) of that regulation, the latter covering civil servants, unemployed persons and persons called up or recalled for service in the armed forces or for civilian service.

53 Consequently, the answer to the questions referred is that Article 11(3)(a) and (e) of Regulation No 883/2004 must be interpreted as meaning that a person residing in a Member State who carries out, through a temporary employment agency established in another Member State, temporary work assignments in the territory of that other Member State is to be subject, during the intervening periods between those temporary work assignments, to the national legislation of the Member State in which he or she resides, provided that, by reason of the temporary contract, the employment relationship ceases during those periods.

54 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 11(3)(a) and (e) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems

must be interpreted as meaning that a person residing in a Member State who carries out, through a temporary employment agency established in another Member State, temporary work assignments in the territory of that other Member State is to be subject, during the intervening periods between those temporary work assignments, to the national legislation of the Member State in which he or she resides, provided that, by reason of the temporary contract, the employment relationship ceases during those periods.

Court of Justice of the European Communities (including Court of First Instance Decisions)