Opinion of the Advocate General — ECLI:EU:C:2014:2190
Date: 2014-09-10
Language of the case: Dutch
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary of the scope ratione personae of Regulation No 1408/71 in order to confirm that the parties to the main proceedings may be considered to be employed persons within the meaning of Article 2(1) of that regulation. I will then analyse the case-law of the Court concerning the applicability of Regulation No 1408/71 in the context of part-time work, before going on to examine the consequences of the provisions of Point I.E of Annex I to that regulation regarding the specific case of Ms Franzen. 1. The scope ratione personae of Regulation No 1408/71 49. The persons covered by Regulation No 1408/71 are defined by Article 2 thereof. According to Article 2(1), three criteria need to be satisfied in order for it to be considered that a worker is covered by the regulation. First, he must be employed or self-employed. (6) Those two terms describe any person who has compulsory or voluntary insurance (7) under one of the social security schemes referred to in Article 1(a)(i) and (ii) of that regulation and in accordance with the terms and conditions of those schemes. (8) Secondly, the worker must be a national of a Member State and, thirdly, he must currently be or have been subject to the legislation of one or more Member States. 50. The Court has pointed out that a person has the status of an ‘employed person’ within the meaning of Regulation No 1408/71 where he is covered, even only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of that regulation, irrespective of the existence of an employment relationship. (9) 51. In the case at issue, it is not disputed that the parties to the main proceedings worked in Germany for certain periods during which they were insured in that Member State. The referring court points out that they engaged in minor employment having the status of ‘geringfügig Beschäftigte’, (10) which means that they were at least covered by insurance against accidents at work (‘Unfallversicherung’). Consequently, I feel that there can be no doubt that the parties to the main proceedings must be considered to be employed persons within the meaning of Article 2(1)(a) of Regulation No 1408/71. 2. Brief reminder of the relevant case-law 52. As is apparent from all the written observations submitted to the Court, the case-law arising from Kits van Heijningen (11) is applicable to the circumstances of the case at issue. In that judgment, the Court gave an interpretation of Article 13(2) of Regulation No 1408/71 in the context of part-time work which, in my view, should be applied by analogy to casual employment relationships such as those in the case at issue. 53. The Court held that there is nothing in Article 1(a) or Article 2(1) of Regulation No 1408/71 which permits certain categories of persons to be excluded from the scope of the regulation on the basis of the amount of time they devote to their activities. Consequently, a person must be considered to be covered by Regulation No 1408/71 if he meets the conditions laid down in Article 1(a) in conjunction with Article 2(1) of the regulation, irrespective of the amount of time which that person devotes to his activities. (12) In the Court’s view, Article 13(2)(a) of Regulation No 1408/71 makes no distinction between full-time and part-time employment. Moreover, the objective which it pursues would be frustrated if it were to be considered that the legislation of the Member State of employment was applicable only during the periods when the person concerned pursued his activity, and not during those periods when he did not. (13) 54. In that regard, it seems clear to me that the decisive factor determining whether a person falls within the scope ratione personae of the regulation is, as may be seen from point 50 of this Opinion, that he is covered, even only in respect of a single risk, on a compulsory or optional basis, by a general or special social security scheme mentioned in Article 1(a) of Regulation No 1408/71. The existence of an employment relationship, the type of employment relationship, the fact that it is a part-time contract or an on-call contract and also the number of hours worked are therefore of no significance. (14) Consequently, in the case at issue, the fact that the parties to the main proceedings engaged in minor employment which did not exceed a certain threshold in terms of hours or earnings, for example as ‘geringfügig Beschäftigte’ under German law, is not relevant. 55. I therefore find that Ms Franzen, Mr Giesen and Mr van den Berg satisfy the criteria established by Article 1(a) in conjunction with Article 2(1) of Regulation No 1408/71, irrespective of the amount of time which they devoted to the pursuit of their activities during the periods at issue. They therefore fall within the scope ratione personae of that regulation and, by virtue of Article 13(2)(a) thereof, are subject to the legislation of the State of employment. The subjection to the German legislation applies not only in respect of the days on which they performed their activity, but also to the days when they did not perform their activity. That subjection continues as long as the person concerned is insured against at least one contingency in the State of employment. (15) 3. Point I.E (‘Germany’) of Annex I to Regulation No 1408/71 56. In the particular case of Ms Franzen, the Commission points out that the provision contained in Point I.E of Annex I to Regulation No 1408/71 concerning Germany modifies the scope ratione personae of that regulation. 57. It may be seen from points 49 to 51 of this Opinion that Ms Franzen falls within the scope ratione personae of Regulation No 1408/71. Consequently, by virtue of Article 13(2)(a) of that regulation, the legislation applicable to Ms Franzen is the German legislation. (16) Could she therefore receive family benefits in Germany? 58. In that regard, it follows from the case-law of the Court that, where the competent institution for granting family benefits is, in accordance with Chapter 7 of Title III of Regulation No 1408/71, a German institution, the definition contained in Article 1(a) of that regulation is displaced by the definition in Point I.E (Germany) of Annex I thereto. (17) Thus, only persons compulsorily insured under one of the schemes mentioned in Point I.E of Annex I to Regulation No 1408/71 may be considered to be ‘employed persons’ or ‘self-employed persons’ within the meaning of Article 1(a)(ii) of that regulation. (18) In fact, under that provision of that annex, ‘employed person’ means ‘a person compulsorily insured against unemployment or any person who, as a result of such insurance, obtains cash benefits under sickness insurance or comparable benefits’. This is not the case with Ms Franzen. She comes under the ‘general rule’ in Article 1(a)(i) of Regulation No 1408/71, that is to say, the definition of ‘an employed person’ within the meaning of that regulation for the purposes of the benefits for which she is insured, in this case, insurance against accidents at work. Conversely, she cannot be considered to be an employed person for the purposes of the grant of German family benefits because of the ‘special rule’ contained in Annex I. Thus, that rule is of a special nature compared with the general system referred to in Article 1(a) of that regulation. In fact, the provisions of Annex I, read in conjunction with Article 1(a)(ii) of Regulation No 1408/71, determine the consequential connection between the type of social security benefit sought by the worker (in this case family allowances) and the criteria which that worker must satisfy in order to be recognised as entitled to the benefit. The EU legislature therefore felt it necessary to stipulate what the terms ‘employed person’ and ‘self-employed person’ within the meaning of that regulation mean when the person concerned is insured under a social security scheme which applies to all residents, as is the case with family benefits in Germany. (19) Consequently, it is my view that, during the periods at issue, Ms Franzen cannot be considered to be an employed person within the meaning of Point I.E of Annex I to Regulation No 1408/71, on the ground that she does not satisfy the criteria laid down in Article 1(a)(ii), in conjunction with Annex I to that regulation, in order to receive family benefits in Germany. 59. Thus, as regards the grant of family benefits under the German legislation, the concept of employed person must be understood as referring exclusively to employed persons who satisfy the definition arising from a combined reading of the provisions of Article 1(a)(ii) and Point I.E of Annex I to that regulation. 4. Interim conclusion 60. It is my view that Article 13(2)(a) of Regulation No 1408/71 must be interpreted as meaning that a resident of a Member State who comes within the scope of that regulation and who for not more than two or three days per month is employed in the territory of another Member State on the basis of an on-call contract is subject to the legislation of the State of employment by virtue of Article 13(2)(a) of that regulation. That subjection to the legislation of the State of employment applies not only to the days on which he performs his employment activities, but also to the days on which he does not perform those activities. That subjection will continue for as long as the person concerned is insured against at least one contingency in the State of employment. B – Questions 2 and 3 61. I propose to examine questions 2 and 3 together. The referring court asks in substance whether, in the circumstances of this case, Article 13(2)(a), in conjunction with Article 13(1) of Regulation No 1408/71, precludes national legislation from excluding from its national social security scheme a migrant worker subject to the social security legislation of the State of employment. The referring court also asks whether the rules of primary law on the freedom of movement for workers and/or citizens of the Union preclude such an exclusion if the migrant worker is excluded from his national social security scheme on the ground that he is subject to the social security legislation of the State of employment, whereas that worker also has no entitlement to family benefits or old-age benefits in the State of employment. Furthermore, it is asking whether the fact that it was possible for the worker to take out voluntary insurance or to request the competent authority to conclude an agreement, as referred to in Article 17 of Regulation No 1408/71, is significant for the purposes of the answer to the previous question. 62. In order to provide the referring court with a useful answer, I consider that we should first of all examine the foundations of the mechanism for the coordination of national social security legislation set up by Regulation No 1408/71. 1. The coordination mechanism set up by Regulation No 1408/71 63. First of all, I would point out that, according to the settled case-law of the Court, the system introduced by Regulation No 1408/71 is based on mere coordination of national laws in the field of social security and is not intended to harmonise them. (20) Since the Member States’ social security systems are characterised by their territoriality, (21) their coordination is based inter alia on rules of attachment analogous to those applying in private international law. The purpose of that coordination is to determine the legislation applicable to employed or self-employed persons who make use, under various circumstances, of their right of freedom of movement, (22) leaving in being differences between the Member States’ social security systems and, consequently, in the rights of persons working in the Member States. (23) That coordination therefore does not alter the Member States’ powers in such matters, provided however that they act in conformity with EU law and, in particular, in accordance with the purpose of the coordinating regulations and the provisions of the Treaty on the freedom of movement of persons. (24) 64. Consequently, that mechanism for the coordination of social security schemes, which was set up from the very beginning of the construction of Europe, (25) is designed to facilitate free movement of persons within the European Union, whilst respecting the special characteristics of national social security legislation, and not to penalise workers who exercise their right to free movement. (26) 65. From its first judgments, the Court has held that the regulations adopted to give effect to Article 48 TFEU must be interpreted ‘in the light of the objective pursued by that article, which is to contribute to the establishment of the greatest possible freedom of movement for migrant workers’. (27) It has held that Articles 45 TFEU to 48 TFEU constitute the basis, the framework and the bounds of the social security regulations. (28) The Court has therefore given rulings on the coordination of national schemes in the light of Articles 45 TFEU and 48 TFEU. 66. Secondly, conflicts of law concerning the applicable national legislation arise from a combination of the exercise of freedom of movement of persons on the one hand and from the continuing existence of national social security systems on the other. Those conflicts of law, whether they are positive conflicts where several laws may be applicable to a given situation or negative conflicts where no legislation is applicable, (29) are barriers to freedom of movement in the territory of the European Union. 67. Thirdly, in order to remedy positive or negative conflicts of law, the provisions of Title II of Regulation No 1408/71 (of which Article 13 is part), which constitute a complete and uniform system of conflict rules, (30) are designed to ensure that the persons concerned are subject to the social security system of only one Member State. In fact, the Court has repeatedly ruled that those provisions are intended not only to prevent the simultaneous application of a number of national legislative systems and the complications which might ensue, (31) but also to ensure that the persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation applicable to them. (32) 68. In that regard, Article 13(1) of Regulation No 1408/71 enshrines the principle that the legislation of a single Member State is applicable to a given situation, (33) which means inter alia that contributions are paid to a single social security scheme. In particular, Article 13(2)(a) of that regulation clearly provides that, subject to Articles 14 to 17, ‘a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State’ (lex loci laboris). (34) 69. Thus, subject to the exceptions provided for by Regulation No 1408/71, (35) this system for resolving conflicts of national social security legislation, which is based on the principle that the legislation of only one Member State applies, is mandatory and, according to the settled case-law of the Court, has the effect that ‘Member States are not entitled to determine the extent to which their own legislation or that of another Member State is applicable since they are under an obligation to comply with the provisions of [EU] law in force’. (36) 70. It is in the light of these considerations that I will examine together questions 2 and 3 raised by the referring court. 2. The principle that the legislation of only one Member State is applicable 71. As may be seen from points 67 and 68 of this Opinion, according to settled case-law of the Court, the provisions of Title II of Regulation No 1408/71, which determine the legislation applicable to workers moving within the European Union, make them subject to the social security system of a single Member State, (37) in order to prevent the simultaneous application of a number of national legislative systems and the complications which might ensue. (38) Consequently, the rules determining the legislation applicable have exclusive effect, which means that, subject to exceptions provided for in Regulation No 1408/71, (39) at no time may any other legislation be applicable apart from that determined by the rules on conflicts of law. (40) 72. However, recent judgments in cases concerning the payment of family benefits seem to indicate a relaxation of the Court’s case-law regarding the strict application of the principle that the legislation of only one Member State is applicable. (41) 73. In its written observations, the Commission states that that relaxation should not however be interpreted as meaning that the law on old-age insurance of the State of residence should also be applied by virtue of the national legislation of that State to an employed person moving within the European Union to whom the social security legislation of the State of employment applies. 74. I agree with that view. Any other interpretation would, in general terms, mean that insured persons would have to pay contributions to the competent authorities of two or more Member States, which is not compatible with the aims of Regulation No 1408/71, as I have emphasised in point 68 of this Opinion. In that regard, recital 9 in the preamble to that regulation states that the instances in which a person should be subject simultaneously to the legislation of two Member States as an exception to the general rule should be as limited in number and scope as possible. 75. In any event, in the interests of clarity and in order to provide the referring court with a useful answer, I feel it is necessary to examine the Court’s recent case-law which, in certain cases, appears to accept the simultaneous application of the legislation of two Member States. a) Brief reminder of the Court’s recent case-law: Bosmann (42) and Hudzinski and Wawrzyniak (43) 76. Can we interpret the aforementioned judgments as meaning that they are applicable to the case at issue? In their written observations, the SVB and the Commission express the view that a distinction should be made between the case-law arising from Ten Holder (44) and Luijten (45) and that established by Bosmann (46) and Hudzinski and Wawrzyniak. (47) As may be seen from point 71 of this Opinion, in the first two judgments, the Court confirmed the principle that the legislation of only one Member State is applicable under the provisions of Title II of Regulation No 1408/71. By contrast, in the second two judgments, the Court held that its interpretation of Article 13(2)(a) of Regulation No 1408/71 did not preclude ‘a Member State, which is not the competent State but which does not subject the right to child benefit to conditions of employment or insurance, from being able to grant such a benefit to one of its residents since the possibility of such a grant arises, in actual fact, from its legislation’. (48) 77. Like the SVB and the Commission, I consider that the latter two judgments cannot be interpreted as being applicable to the case at issue. As a reminder, Ms Bosmann received family benefits on the sole ground that she was resident in Germany and Mr Hudzinski received them under a provision of German law whereby any person who does not have his permanent or habitual residence within German territory but is subject there to unlimited income tax liability or is treated as so liable is, in addition, entitled to family benefits. Unlike the situation in this case, the German legislation conferred a specific right on the persons concerned under national law, based either on residence or on liability to income tax, whilst that legislation does not expressly exclude from the benefit of that right persons subject under EU law to the legislation of another Member State, such as the Member State of residence. 78. In the cases at issue in the main proceedings, Article 6a, introductory sentence and subparagraph (b), of the AOW and Article 6a of the AKW exclude from the scope of that legislation persons who, under Regulation No 1408/71, are subject to the legislation of another Member State. Thus, Ms Franzen, the wife of Mr Giesen and Mr van den Berg are subject to the German legislation and, consequently, in principle, during the periods at issue, cannot receive a family benefit under the AKW or an old-age pension under the AOW, as appropriate. 79. However, in order to tailor my proposed answers to the questions referred for a preliminary ruling to the circumstances at issue in the main proceedings, I feel it is necessary to set out my arguments in two stages. b) Determination of the applicable legislation 80. It is first of all necessary to determine which national legislation is applicable under Title II of Regulation No 1408/71 to the circumstances at issue in the main proceedings. In that regard, it may be seen from my analysis of question 2 that, under Article 13(2)(a) of Regulation No 1408/71, read in conjunction with Article 13(1) of that regulation, the German legislation is the legislation applicable to the situations of Ms Franzen, Mr Giesen’s wife and Mr van den Berg. 81. Secondly, now that the applicable legislation has been determined, we need to examine in the light of the provisions of Regulation No 1408/71 and also of the fundamental freedoms, the consequences of applying the legislation of the State of employment to the specific circumstances at issue in the main proceedings. c) The consequences of applying the legislation of the State of employment to the circumstances at issue in the main proceedings and their interpretation in the light of Regulation No 1408/71 and primary law 82. Regarding the circumstances at issue in the main proceedings, it may be recalled that Ms Franzen, Mr Giesen’s wife and Mr van den Berg are subject, under Regulation No 1408/71, to the social security legislation of the State of employment. It is apparent from the documents before the Court that, during the periods at issue, they were compulsorily insured only against accidents at work, without having access to any other branch of German social security insurance, which meant that they lost the possibility of obtaining cover under Dutch legislation from the social security scheme of their State of residence. As a result, the parties to the main proceedings lost the social security cover afforded by their State of residence, without obtaining that of their State of employment. Consequently, in reality they have no cover either from the social security scheme of their State of employment, on the ground of the limited number of hours worked or their low earnings, or from that of their State of residence, on the ground that they were subject to the legislation of another Member State. Consequently, Ms Franzen lost her family benefits, whilst the old-age pension and the partner’s allowance of Mr van den Berg and Mr Giesen respectively were reduced to amounts below those corresponding to their total years of employment, on the ground that periods of employment in their State of residence were not aggregated with those in their State of employment. 83. In fact, as the Commission rightly maintains, it is obvious that, by exercising their right to freedom of movement, the parties to the main proceedings found themselves in a situation which was more unfavourable than that of a worker who had spent his entire working life in a single Member State because, as a result, they lost part of their entitlement to a pension. If they had remained in the Netherlands and had pursued the same activities there, they would not have lost their entitlement. 84. Is that unfavourable consequence compatible with the provisions of Regulation No 1408/71 as interpreted in the light of the rules of primary law on freedom of movement for workers? 85. As the SVB and the Netherlands and the United Kingdom Governments argue, the Court has on many occasions held that Member States retain the power to determine in their legislation, in compliance with EU law, the conditions for granting benefits under a social security scheme. (49) It has also held that, in social security matters, EU law, and in particular primary law, cannot guarantee to an insured person that a move to another Member State will have no effects on the type or level of benefits that they may claim in their State of origin. (50) Thus, the application, possibly under the provisions of Regulation No 1408/71, following a change of Member State of residence, of national legislation that is less favourable as regards social security benefits may in principle be compatible with the requirements of primary EU law on freedom of movement for persons. (51) The fact that the exercising of the freedom of movement may not be neutral in this sphere, in that it may to varying degrees be advantageous or even disadvantageous, depending on the circumstances, is a direct result of the fact that the difference between the laws of the Member States has been maintained. (52) 86. However, it is none the less true that, according to the settled case-law of the Court, such compatibility would exist only to the extent that, in particular, the national legislation concerned does not place the worker at a disadvantage compared to those who pursue all their activities in the Member State where it applies. (53) The Court has also held that the aim of Articles 45 TFEU and 48 TFEU would not be achieved if, as a consequence of their exercise of the right to freedom of movement, workers were to lose the social security advantages guaranteed to them by the legislation of one Member State. (54) Regarding the provisions of Title II of Regulation No 1408/71, the Court has found that they are intended to ensure that the persons covered by Regulation No 1408/71 are not left without social security cover because there is no legislation applicable to them. (55) 87. That absence of applicable legislation on social security schemes, which would enable Ms Franzen to receive family benefits and Mr van den Berg and Mr Giesen to receive an old-age pension, is one of the features of the circumstances at issue in the main proceedings. Even if there can be no doubt that, under Article 13(2)(a) of Regulation No 1408/71, the legislation formally applicable to the circumstances at issue in the main proceedings is the German legislation, the results of its application are not in my opinion compatible either with Regulation No 1408/71, the purpose of which is to facilitate freedom of movement for persons within the European Union, or with Articles 45 TFEU and 48 TFEU, on which it is based. In fact, for the parties to the main proceedings, the matter at issue is not whether the exercise of their right to freedom of movement was to varying degrees advantageous or even disadvantageous, but rather the total absence of protection under any social security scheme during the periods at issue, which, in my view, is contrary not only to Regulation No 1408/71 but also to Articles 45 TFEU and 48 TFEU. 88. I therefore wonder to what extent it would be possible, whilst respecting the coordination mechanism set up by Regulation No 1408/71 and more specifically the principle that the legislation of only one Member State is applicable, to resolve the situation, which is as regrettable as it is unacceptable, in which the parties in the main proceedings find themselves as a result of exercising their fundamental right to freedom of movement. 89. In that regard, I think that, in the solution to be proposed to the Court, account should be taken of the level of benefits granted by the legislation of the State of employment where that legislation, as in the circumstances at issue in the main proceedings, excludes workers from the protection offered by the fundamental branches of social security. Taking account of the level of protection in order to determine the applicable legislation where that protection is virtually non-existent, such as for on-call work or minor employment, is consistent with the social progress promoted by the Treaty and that approach is to be found in recital 1 in the preamble to Regulation No 1408/71, according to which ‘the provisions for coordination of national social security legislation fall within the framework of freedom of movement for workers and should contribute towards the improvement of their standard of living and conditions of employment’. 90. Thus, in my opinion, it would be appropriate to temporarily suspend the application of the legislation of the State of employment where its application is triggered by short-term on-call or minor employment contracts and to apply the legislation of the State of residence. That suspension should be restricted to the period during which the legislation of the State of employment maintains the exclusion of the aforementioned categories of workers from the fundamental branches of social security other than insurance against accidents at work. (56) 91. The adoption of such a measure to suspend the application of the law of the Member State of employment in my opinion follows from a reading of Article 13(1) and (2)(a) of Regulation No 1408/71 in the light of Articles 45 TFEU and 48 TFEU and would prevent a situation where a worker who, exercising his right to freedom of movement, has taken up employment in more than one Member State is, without objective justification, treated less favourably than a worker who has spent his entire working life in a single Member State. Such an interpretation of Regulation No 1408/71 would also make it possible to take into consideration the new forms of working and the career paths of EU citizens, in particular situations involving casual employment, such as on-call or minor employment contracts. (57) 92. The fact that it is possible for a worker to take out voluntary insurance (58) or to request the competent authority to conclude an agreement as referred to in Article 17 of Regulation No 1408/71 is, in my opinion, of no significance for the purposes of the proposed answer. 93. I would however point out that, on the basis of Article 17 of Regulation No 1408/71, the competent authorities of the Member States concerned or the bodies designated by those authorities may by common agreement provide for exceptions to the provisions of Articles 13 to 16 of that regulation in the interest of certain categories of persons or of certain persons. It should have been possible for the competent authorities of the Member States concerned to envisage an agreement to that effect relating to employees with short-term on-call or minor employment contracts with a view to preventing undesirable situations such as those at issue in the main proceedings. 3. Interim conclusion 94. Article 13(2)(a) of Regulation No 1408/71, read in conjunction with paragraph (1) of that same article, in the light of Articles 45 TFEU and 48 TFEU, must be interpreted, in circumstances such as those at issue in the main proceedings, as not precluding national legislation from excluding a migrant worker from its national social security scheme on the ground that he is subject to the social security legislation of his State of employment. However, where that worker is not entitled to family benefits or benefits under the old-age pension scheme in the State of employment, in view of the fact that the social protection afforded by the legislation of the State of employment is virtually non-existent, where its application has been triggered by on-call or minor employment contracts, its application should be temporarily suspended in favour of the legislation of the State of residence. That temporary suspension would apply solely during the period in which the legislation of the State of employment maintained the exclusion of those categories of workers from social security other than insurance against accidents at work, and solely to those other branches. It is for the national court to carry out any verifications necessary, having regard to the circumstances at issue in the main proceedings. 95. The fact that it was possible for a worker to take out voluntary insurance or to request the competent authority to conclude an agreement for the purposes of Article 17 of Regulation No 1408/71 is not significant in that regard. VI – Conclusion 96. In the light of all the foregoing considerations, I propose that the Court should reply as follows to the questions referred by the Centrale Raad van Beroep: (1) Article 13(2)(a) 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, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, must be interpreted as meaning that a resident of a Member State who comes within the scope of that regulation and who for not more than two or three days per month is employed in the territory of another Member State on the basis of an on-call contract is subject to the legislation of the State of employment under Article 13(2)(a) of that regulation. That subjection to the legislation of the State of employment applies both on the days on which the employment activities are performed and on the days on which those activities are not performed. It continues as long as the person concerned is insured against at least one contingency in the State of employment. (2) Article 13(2)(a) of Regulation No 1408/71, read in conjunction with Article 13(1), in the light of Articles 45 TFEU and 48 TFEU, must be interpreted, in circumstances such as those at issue in the main proceedings, as not precluding national legislation from excluding a migrant worker from its national social security scheme on the ground that he is subject to the social security legislation of the State of employment. However, where that worker is not entitled to family benefits or benefits under the old-age pension scheme in the State of employment in view of the fact that the social protection afforded by the legislation of the State of employment is virtually non-existent, where it has been triggered by short-term on-call or minor employment contracts, its application should be temporarily suspended in favour of the legislation of the State of residence. That temporary suspension will apply solely during the period in which the State of employment maintains the exclusion of the said categories of workers from branches of social security other than insurance against accidents at work and solely to those other branches. It is for the national court to carry out any verifications necessary, having regard to the circumstances at issue in the main proceedings. The fact that it was possible for the worker to take out voluntary insurance or to request the competent authority to conclude an agreement for the purposes of Article 17 of Regulation No 1408/71 is not significant in that regard. 2 – Original language: French. 3 – Council Regulation 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, 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), ‘Regulation No 1408/71’. Regulation No 1408/71 was repealed and replaced as of 1 May 2010 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, and corrigendum OJ 2004 L 200, p. 1). However, it is still applicable to the disputes in the main proceedings, since administrative decisions are at issue which were adopted under the old rules. 4 – For negative conflict of applicable laws, see, for example, Rodière, P., Droit social de l’Union européenne, LDGJ, 2014, p. 662. 5 – The referring court takes the view that, during the periods at issue, the legislation applicable to Ms Franzen and to Mr van den Berg is the German legislation. By contrast, it has doubts as to which legislation is applicable to Mr Giesen’s wife. 6 – That article refers not only to employed or self-employed persons but also to students, stateless persons and refugees residing within the territory of one of the Member States, as well as to members of their families and their survivors. In fact, since the judgment in Martínez Sala, C‑85/96, EU:C:1998:217, EU citizenship has extended the scope of Regulation No 1408/71. That extension of the beneficiaries of the regulation was confirmed by the judgments in Grzelczyk, C‑184/99, EU:C:2001:458 and Collins, C‑138/02, EU:C:2004:172. EU citizenship therefore added a new dimension to the coordination of national social security systems. See Cornelissen, R., ‘The principle of territoriality and the Community regulations on social security (Regulations 1408/71 and 574/72)’, Common Market Law Review, 1996, 33, pp. 439 to 471. See also Marzo, C., La dimension sociale de la citoyenneté européenne, Université Paul Cézanne — Aix-Marseille III, Collection B. Goldman, Presses Universitaires d’Aix-Marseille, p. 344. 7 – According to Article 1(a)(iv) of Regulation No 1408/71, a person who is voluntarily insured for one or more of the contingencies covered by the branches dealt with in the regulation, under a social security scheme of a Member State, and who does not carry out an activity as an employed person, will also come under the provisions of that regulation if he has previously been insured for the same contingency under a scheme for employed or self-employed persons for the same Member State. 8 – In the context of the first question referred to it for a preliminary ruling concerning social security, having regard for Council Regulation No 3/58 of 25 September 1958 on social security for migrant workers (OJ 1958, 30, p. 561), the Court has held that ‘the concept of a “wage-earner or assimilated worker” has a Community meaning referring to all those who, as such and under whatever description, are covered by the different national systems of social security’ (Unger, 75/63, EU:C:1964:19, first paragraph of the operative part). See also the judgment in Megner and Scheffel, C‑444/93, EU:C:1995:442, paragraph 20. 9 – Judgments in Dodl and Oberhollenzer, C‑543/03, EU:C:2005:364, paragraph 34, and Borger, C‑516/09, EU:C:2011:136, paragraph 26. 10 – It is apparent from the observations of the SVB that the status of ‘geringfügig Beschäftigte’ refers to the pursuit of activities not exceeding a certain threshold in terms of hours or earnings. 11 – C‑2/89, EU:C:1990:183. 12 – Ibid., paragraph 10. 13 – Ibid., paragraph 14. 14 – Ibid., paragraphs 9 and 11. 15 – I would also point out here that a person who has ceased all employment in the territory of a Member State and thus no longer satisfies the conditions laid down in Article 13(2)(a) of Regulation No 1408/71 and who, moreover, does not satisfy the conditions laid down in any other provision of that regulation for the legislation of a Member State to be applicable to him is subject, by virtue of Article 13(2)(f) and in accordance with the legislation of the State in whose territory he resides, either to the legislation of the State in which he was previously employed, if he continues to reside there, or to that of the State to which, if such be the case, he has transferred his residence. See the judgment in Kuusijärvi, C‑275/96, EU:C:1998:279, paragraph 34. 16 – See points 68 and 69 of this Opinion. 17 – Judgment in Kulzer, C‑194/96, EU:C:1998:85, paragraph 35. 18 – Judgments in Merino García, C‑266/95, EU:C:1997:292, paragraphs 24 to 26; Martínez Sala, C‑85/96, EU:C:1998.217; and Schwemmer, C‑16/09, EU:C:2010:605, paragraph 34. 19 – See, to that effect, the Opinion of Advocate General La Pergola in Stöber and Piosa Pereira, Joined Cases C‑4/95 and C‑5/95, EU:C:1996:225, paragraphs 13 and 28. 20 – Judgments in Lenoir, 313/86, EU:C:1988:452, paragraph 13; Hervein and Others, C‑393/99 and C‑394/99, EU:C:2002:182, paragraph 52; and Pasquini, C‑34/02, EU:C:2003:366, paragraph 52. 21 – Cornelissen, R., loc. cit., pp. 439 to 441. 22 – Judgments in Piatkowski, C‑493/04, EU:C:2006:167, paragraph 20; Nikula, C‑50/05, EU:C:2006:493, paragraph 20; and Derouin, C‑103/06, EU:C:2008:185, paragraph 20. 23 – See, for example, Gravina, 807/79, EU:C:1980:184, paragraph 7; Rönfeld, C‑227/89, EU:C:1991:52, paragraph 12; and Leyman, C‑3/08, EU:C:2009:595, paragraph 40. 24 – See, by analogy, Kauer, C‑28/00, EU:C:2002:82, paragraph 26. See also the Opinion of Advocate General Jääskinen in Reichel-Albert, C‑522/10, EU:C:2012:114, point 44. 25 – That mechanism was put in place by Regulation No 3/58, which became Regulation No 1408/71. Regulation No 1408/71 and Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation No 1408/71 (OJ 1972 L 74, p. 1) have been amended several times both to adjust them to changes in national legislation and also to incorporate the body of law arising from the case-law of the Court. Those coordinating regulations represent an essential contribution towards European integration. See, to that effect, Cornelissen, R., loc. cit., p. 471. 26 – Judgments in Nikula, C‑50/05, EU:C:2006:493, paragraph 20, and Tomaszewska, C‑440/09, EU:C:2011:114, paragraph 28. Thus, a change in the applicable law must not entail a break or disparity in social protection. See Mavridis, P., La sécurité sociale à l’épreuve de l’intégration européenne, Bruylant, 2003, p. 34. For the deterritorialisation of the law applicable to a given situation, see Cornelissen, R., loc. cit., pp. 444 to 446 and 470. 27 – See, for example, judgments in Belbouab, 10/78, EU:C:1978:181, paragraph 5; Buhari Haji, C‑105/89, EU:C:1990:402, paragraph 20; Chuck, C‑331/06, EU:C:2008:188, paragraph 28; and da Silva Martins, C‑388/09, EU:C:2011:439, paragraph 70. 28 – Judgments in Duffy, 34/69, EU:C:1969:71, paragraph 6, and Massonet, 50/75, EU:C:1975:159, paragraph 9. 29 – See Rodière, P., loc. cit., p. 662 and Note 3. 30 – Judgment in Luijten, 60/85, EU:C:1986:307, paragraphs 12 to 14. 31 – Judgments in Ten Holder, 302/84, EU:C:1986:242, paragraph 19, and Luijten, 60/85, EU:C:1986:307, paragraph 12. 32 – Judgments in Kits van Heijningen, C‑2/89, EU:C:1990:183, paragraph 12, and Kuusijärvi, C‑275/96, EU:C:1998:279, paragraph 28. 33 – The coordinating mechanism established by Regulation No 1408/71 is also based on the following three principles: firstly, equal treatment for nationals and non-nationals; secondly, aggregation of periods of insurance (or retention of future entitlements); and, thirdly, the exportability of benefits within the European Union (removal of residence clauses and retention of rights acquired). 34 – Judgment in Kits van Heijningen, C‑2/89, EU:C:1990:183, paragraph 12. 35 – According to recital 11 in the preamble to Regulation No 1408/71, ‘in certain situations which justify other criteria of applicability, it is possible to derogate from this general rule’. The exceptions to lex loci laboris are laid down in Articles 14 to 17 of Regulation No 1408/71. Article 17 of that regulation concerns agreements relating to certain categories of persons which must be concluded in the interests of the persons concerned. Apart from in Title II, provision is also made for exceptions to take account of ‘social circumstances and for reasons of practical efficiency in Title III of that regulation’ (Mavridis, P., loc. cit., p. 443). 36 – Judgment in Ten Holder, 302/84, EU:C:1986:242, paragraph 21, and Luijten, 60/85, EU:C:1986:307, paragraph 14. 37 – It should be noted here that, with the entry into force of Regulation No 883/2004 (see Article 11(1)), the principle that the legislation of only one Member State is applicable was confirmed. 38 – Judgments in Ten Holder, 302/84, EU:C:1986:242, paragraph 19, and Luijten, 60/85, EU:C:1986:307, paragraph 12. 39 – See footnote 34. 40 – Morsa, M., Sécurité sociale, libre circulation et citoyennetés sociales, Anthemis, 2012, p. 142. 41 – Judgments in Bosmann, C‑352/06, EU:C:2008:290, and Hudzinski and Wawrzyniak, C‑611/10 and C‑612/10, EU:C:2012:339. For an overview of the reactions to that case-law in the legal literature, see, for example: Kessler, F., ‘Prestations familiales: une nouvelle remise en cause du principe d’unicité de la législation applicable’, Revue de jurisprudence sociale, 10 (2008), pp. 770 to 773; Lhernould, J.-P., ‘Ouverture de droits à prestations familiales dans deux États membres de l’Union: consolidation de nouveaux principes?’, Revue de jurisprudence sociale, 8-9 (2012), pp. 583 to 584; and Devetzi, S., ‘The coordination of family benefits by Regulation 883/2004’, European Journal of Social Security, Volume 11, 1-2 (2009), pp. 205 to 216 and p. 212. 42 – C‑352/06, EU:C:2008:290, paragraph 32. 43 – C‑611/10 and C‑612/10, EU:C:2012:339, paragraph 49. 44 – 302/84, EU:C:1986:242. As a reminder, the judgment in Ten Holder concerned a person who had ceased working in Germany, who was receiving sickness benefit under the legislation of that Member State and who had taken up residence in the Netherlands without resuming employment there whilst she was in receipt of that sickness benefit. However, it did not appear that she had finally ceased all forms of employment or that she was not going to resume employment in her new State of residence. Although no provision of Title II of Regulation No 1408/71 explicitly governs that situation, the Court held that the legislation of the Member State where such person was last employed (Germany) should continue to apply to them under Article 13(2)(a) of that regulation. I would point out here that, today, cases of this type are covered by Article 13(2)(f) of Regulation No 1408/71. 45 – 60/85, EU:C:1986:307. As a reminder, in the judgment in Luijten the Court reiterated the principle that the legislation of only one Member State is applicable, in view of the risk that the legislation of the Member State of employment and that of the Member State of residence entitling insured persons to family benefits might apply simultaneously. 46 – C‑352/06, EU:C:2008:290. That case arose from the decision of the German institution responsible for family benefits to cease paying family benefits to Ms Bosmann, a Belgian national resident in Germany with her children, from the time that she took up employment in the Netherlands. In the latter Member State, her children did not fulfil the requirements under Dutch law to receive the benefits in question. 47 – C‑611/10 and C‑612/10, EU:C:2012:339. That judgment, delivered in two joined cases, concerned two Polish workers who resided with their families in Poland and who came to take up temporary employment in Germany, one, a self-employed person in Poland, as a seasonal worker and the other, an employed person, on a posting to that country. 48 – Judgments in Bosmann, C‑352/06, EU:C:2008:290, paragraph 32, and Hudzinski and Wawrzyniak, C‑611/10 and C‑612/10, EU:C:2012:339, paragraph 49. 49 – Judgment in van Delft and Others, C‑345/09, EU:C:2010:610, paragraph 99. 50 – Ibid., paragraph 100. 51 – .von Chamier-Glisczinski, C‑208/07, EU:C:2009:455, paragraphs 85 and 87, and da Silva Martins, C‑388/09, EU:C:2011:439, paragraph 72. 52 – See Opinion of Advocate General Jääskinen in Reichel-Albert, C‑522/10, EU:C:2012:114, point 45. 53 – Judgment in da Silva Martins, C‑388/09, EU:C:2011:439, paragraph 73 and the case-law cited. 54 – Ibid., paragraph 74 and case-law cited. 55 – Judgment in Kits van Heijningen, C‑2/89, EU:C:1990:183, paragraph 12. 56 – I would point out here that Article 84(1)(b) of Regulation No 1408/71 provides that the competent authorities of the Member States are to communicate to each other all information regarding changes to their legislation which are likely to affect the implementation of that regulation. I would also point out that it is apparent from the hearing that, since January 2013, the German legislation has been amended to the effect that workers engaging in minor employment will also be covered by old-age and sickness insurance. 57 – There would appear to be a need for a debate on the impact of the new forms of mobility on the rules on the coordination of social security schemes. See, for example, Jorens, Y., and van Overmeiren, F., ‘General principles of coordination in Regulation 883/2004’, European Journal of Social Security, Volume 11, 1-2 (2009), pp. 47 to 79 and p. 73. 58 – The Court has held that ‘the steps which non-resident workers wishing to take out voluntary insurance must take on their own initiative, and the constraints associated with such insurance, such as complying with time-limits for applying for insurance, are factors which place non-resident workers — who have the option only of voluntary insurance — in a less favourable position than resident workers, who are covered by compulsory insurance’. See the judgment in Salemink, C‑347/10, EU:C:2012:17, paragraph 44.