# C_2022165EN.01002403.xml

| 19.4.2022 | EN | Official Journal of the European Union | C 165/24 |
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19.4.2022

EN

Official Journal of the European Union

C 165/24

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Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 25 November 2021 — IEF Service GmbH v HB

(Case C-710/21)

(2022/C 165/31)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Appellant on a point of law and original defendant: IEF Service GmbH

Respondent in the appeal on a point of law and original applicant: HB

Questions referred

| 1. | Is Article 9(1) of Directive 2008/94/EC (1) of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer to be interpreted as meaning that an undertaking within the meaning of that article carries out activities in the territories of at least two Member States where it offers its services in another Member State, employs a freelance sales engineer there for that purpose and an employee employed at the registered office of the undertaking regularly works every second week in his or her home office in the other Member State? |
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1.

Is Article 9(1) of Directive 2008/94/EC (1) of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer to be interpreted as meaning that an undertaking within the meaning of that article carries out activities in the territories of at least two Member States where it offers its services in another Member State, employs a freelance sales engineer there for that purpose and an employee employed at the registered office of the undertaking regularly works every second week in his or her home office in the other Member State?

| 2. | If Question 1 is answered in the affirmative:
  Is Article 9(1) of Directive 2008/94/EC to be interpreted as meaning that an employee of such an undertaking who is resident in the second Member State and is subject to compulsory social insurance there, but alternately works for one week in the Member State in which the employer has its registered office and then the next week in the Member State in which he or she is resident and is subject to compulsory social insurance, ‘habitually’ works in both Member States within the meaning of that article? |
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2.

If Question 1 is answered in the affirmative:

Is Article 9(1) of Directive 2008/94/EC to be interpreted as meaning that an employee of such an undertaking who is resident in the second Member State and is subject to compulsory social insurance there, but alternately works for one week in the Member State in which the employer has its registered office and then the next week in the Member State in which he or she is resident and is subject to compulsory social insurance, ‘habitually’ works in both Member States within the meaning of that article?

| 3. | If Question 2 is answered in the affirmative:
  Is Article 9(1) of Directive 2008/94/EC to be interpreted as meaning that the guarantee institution responsible for meeting the outstanding claims of an employee who works or habitually works in two Member States is






  a) | the guarantee institution of the Member State to the legislation of which he or she is subject in the context of the coordination of social security (social insurance) systems where the guarantee institutions pursuant to Article 3 of Directive 2008/94/EC in both States are structured in such a way that the employer’s contributions to the financing of the guarantee institution are payable as part of the compulsory social insurance contributions; or |
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3.

If Question 2 is answered in the affirmative:

Is Article 9(1) of Directive 2008/94/EC to be interpreted as meaning that the guarantee institution responsible for meeting the outstanding claims of an employee who works or habitually works in two Member States is

a)

the guarantee institution of the Member State to the legislation of which he or she is subject in the context of the coordination of social security (social insurance) systems where the guarantee institutions pursuant to Article 3 of Directive 2008/94/EC in both States are structured in such a way that the employer’s contributions to the financing of the guarantee institution are payable as part of the compulsory social insurance contributions; or

| b) | the guarantee institution of the other Member State in which the undertaking which is in a state of insolvency has its registered office; or |
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b)

the guarantee institution of the other Member State in which the undertaking which is in a state of insolvency has its registered office; or

| c) | the guarantee institutions of both Member States, with the result that the employee can choose which one he or she wants to claim from when submitting his or her application? |
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c)

the guarantee institutions of both Member States, with the result that the employee can choose which one he or she wants to claim from when submitting his or her application?

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(1)  Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer (Codified version) (OJ 2008 L 283, p. 36).

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