Judgment;Summary — ECLI:EU:C:2021:409
Date: 2021-05-20
Language of the case: Polish
Court formation: Eighth Chamber
Subject matter: Social security for migrant workers;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Poland

Anonymised version 
Translation C-879/19 — 1 
Case C-879/19 
Request for a preliminary ruling 
Date lodged: 
2 December 2019 
Referring court: 
Sąd Najwyższy (Poland) 
Date of the decision to refer: 
19 September 2019 
Applicant: 
FORMAT Urządzenia i Montaże Przemysłowe 
Defendant: 
Zakład Ubezpieczeń Społecznych I Oddział w Warszawie 
  
[...] ORDER 
On 19 September 2019 
the Sąd Najwyższy (Supreme Court) [...] 
[...] [composition of the chamber] 
in the proceedings brought by FORMAT Urządzenia i Montaże Przemysłowe 
Spółka z o.o., having its registered office in Warsaw, against Zakład Ubezpieczeń 
Społecznych I Oddział in Warsaw (Social Security Institution, Warsaw I Office), 
with the person concerned, UA, as intervener, 
concerning the question whether UA is subject to Polish legislation with regard to 
the application of social security schemes to employed persons and their families 
moving within the Community, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 19. 9. 2019 — CASE C-879/19 
 
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[...] [references to procedure] 
I. The following question is hereby referred to the Court of Justice of 
the European Union, pursuant to Article 267 TFEU: 
Is the expression ‘a person normally employed in the territory of two or 
more Member States’ used in the first sentence of Article 14(2) of 
Council Regulation (EEC) No 1408/71 of 14 June 1971 on the 
application of social security schemes to employed persons and their 
families moving within the Community, in the version resulting from 
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), [Or. 2] to be interpreted as also applying to a person who, during 
the period covered by and within the framework of one and the same 
contract of employment concluded with a single employer, performs 
work in the territory of each of at least two Member States not 
simultaneously or concurrently, but during directly consecutive, 
successive periods of several months? 
II. The proceedings are stayed 
GROUNDS 
Subject matter of the question 
The question referred to the Court of Justice of the European Union for a 
preliminary question concerns the interpretation of the expression ‘a person 
normally employed in the territory of two or more Member States’ used in 
Article 14(2) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the 
application of social security schemes to employed persons and 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) and Regulation (EC) No 592/2008 of the 
European Parliament and of the Council of 17 June 2008 (OJ 2008 L 177, p. 1) 
(‘Regulation No 1408/71’). 
That question has been raised in proceedings between Format Urządzenia i 
Montaże Przemysłowe sp. z o.o. (‘Format’), with the person concerned, UA (‘the 
person concerned’), as intervener, and the Zakład Ubezpieczeń Społecznych (‘the 
ZUS’ or ‘the social security institution’), concerning the question whether UA is 
subject to Polish legislation with regard to the application of social security 
schemes to employed persons and their families moving within the Community. 
[Or. 3] 
FORMAT 
 
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Legal context 
Article 1(h) of Regulation No 1408/71 provides that, for the purposes of its 
application, ‘residence’ means habitual residence. 
Article 13 of Regulation No 1408/71 (entitled ‘General rules’), contained in Title 
II thereof (‘Determination of the legislation applicable’), stipulates: 
‘1. Subject 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. 
2. Subject to Articles 14 to 17: 
(a) 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; 
… 
(f) a person to whom the legislation of a Member State ceases to be applicable, 
without the legislation of another Member State becoming applicable to him in 
accordance with one of the rules laid down in the aforegoing subparagraphs or in 
accordance with one of the exceptions or special provisions laid down in 
Articles 14 to 17, shall be subject to the legislation of the Member State in whose 
territory he resides in accordance with the provisions of that legislation alone’. 
Article 14 of Regulation No 1408/71 (entitled ‘Special rules applicable to persons, 
other than mariners, engaged in paid employment’) provides: 
‘Article 13(2)(a) shall apply subject to the following exceptions and 
circumstances: 
(1) (a) A person employed in the territory of a Member State by an 
undertaking to which he is normally attached who is posted by that undertaking to 
the territory of another Member State to perform work there for that undertaking 
shall continue to be subject to the legislation of the first Member State, provided 
that the anticipated duration of that work does not [Or. 4] exceed 12 months and 
that he is not sent to replace another person who has completed his term of 
posting; 
… 
(2) A person normally employed in the territory of two or more Member States 
shall be subject to the legislation determined as follows: 
(a) A person who is a member of the travelling or flying personnel of an 
undertaking which, for hire or reward or on its own account, operates international 
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transport services for passengers or goods by rail, road, air or inland waterway and 
has its registered office or place of business in the territory of a Member State 
shall be subject to the legislation of the latter State, with the following restrictions 
… 
(b) A person other than that referred to in (a) shall be subject: 
(i) to the legislation of the Member State in whose territory he resides, if he 
pursues his activity partly in that territory or if he is attached to several 
undertakings or several employers who have their registered offices or places of 
business in the territory of different Member States; 
(ii) to the legislation of the Member State in whose territory is situated the 
registered office or place of business of the undertaking or individual employing 
him, if he does not reside in the territory of any of the Member States where he is 
pursuing his activity’. 
Paragraph 4 of Article 12a(5) of Regulation (EEC) No 574/72 of the Council of 
21 March 1972 laying down the procedure for implementing Regulation 
No 1408/71, in the version amended and updated by Council Regulation (EC) 
No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Commission 
Regulation (EC) No 311/2007 (OJ 2007 L 82, p. 6) and Commission Regulation 
(EC) No 120/2009 of 9 February 2009 (OJ 2009 L 39, p. 29) (‘Regulation 
No 574/72’), (entitled ‘Rules applicable in respect of the persons referred to in 
Article 14(2) and (3), Article 14a(2) to (4) and Article 14c of the Regulation who 
normally carry out an employed or self-employed activity in the territory of two or 
more Member States’), provides [Or. 5] 
‘For the application of the provisions of Article 14(2) and (3), Article 14a(2) to (4) 
and Article 14c of the Regulation, the following rules shall apply: 
… 
4. (a) Where, in accordance with Article 14(2)(b)(ii) of the Regulation, an 
employed person who does not reside in the territory of any of the Member States 
in which he is pursuing his activity is subject to the legislation of the Member 
State in whose territory is situated the registered office or place of business of the 
undertaking or individual employing him, the institution designated by the 
competent authority of the latter Member State shall issue to the employed person 
a certificate stating that he is subject to its legislation and shall send a copy thereof 
to the institution designated by the competent authority of any other Member 
State: 
(i) in the territory of which the employed person pursues a part of his activity; 
(ii) in the territory of which the employed person resides. 
(b) Paragraph 2(b) above shall apply by analogy. 
FORMAT 
 
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Circumstances and subject matter of the dispute and proceedings 
1. By decision of 13 February 2008, the ZUS refused to issue, pursuant to 
Articles 14(1)(a) and 14(2)(b) of Regulation No 1408/71, a certificate on an E 101 
form in respect of UA, an employee of Format, confirming that he was subject, 
from 23 December 2007 to 31 December 2009, to the Polish social security 
system by virtue of work performed in the territory of Member States of the 
European Union other than Poland. 
2. By judgment of 11 April 2011 [...], the Sąd Okręgowy w Warszawie (Regional 
Court, Warsaw) dismissed the appeal brought by Format and the appeal brought 
by the person concerned against the above decision of the pensions office. 
3. The Sąd Okręgowy determined that the employer of the person concerned is 
Format, which has its registered office in Poland, that the person concerned is 
resident in Poland, and that from 5 November 2007 to 6 January 2008 he worked 
in [the United Kingdom] and then from 7 January 2008 continued to work in 
France; UA [Or. 6] worked in both those Member States under a single contract 
of 20 October 2006 for a fixed period up until 31 December 2009. 
4. The Sąd Okręgowy takes the view that Article 14(2)(b) of Regulation No 1408/71 
is not applicable in the present case because it relates solely to persons who are 
working simultaneously for one employer in several Member States; the person 
concerned is not a person normally employed in the territory of two or more 
Member States within the meaning of Article 14(2)(b) of the regulation. That 
provision concerns workers not referred in Article 14(2)(a) and who are engaged 
in frequent movement between the territories of the Member States in order to 
perform employment obligations. The person concerned, however, worked 
continually, initially in Britain and then in France. 
5. The Sąd Okręgowy found that the person concerned was not ‘normally employed’ 
in the territory of two or more Member States under the employment contract 
concluded with [Format], but worked for several months in the territory of a single 
Member State and was therefore subject to Article 13(2a) of Regulation 
No 1408/71. 
6. By judgment of 23 January 2018, the Sąd Apelacyjny w Warszawie (Court of 
Appeal, Warsaw) dismissed the appeal brought by [Format] against the 
abovementioned judgment of the court of first instance. 
7. As regards the interpretation of the term ‘a person normally employed in the 
territory of two or more Member States’, the Sąd Apelacyjny found, with 
reference to the judgment of the Sąd Najwyższy of 5 November 2009, II UK 
99/09, that Article 14(2)(b)(ii) of the regulation concerns a person employed by a 
single employer who pursues an activity in the territory of more than one Member 
State and the work is performed in those States, provided that the worker’s place 
of residence does not coincide with his place of work. The Sąd Apelacyjny 
concluded that that provision concerns employment in connection with multiple 
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short-term stays in several Member States. The term ‘person normally employed 
in the territory of two or more Member States’ therefore means a person who 
works at the same time in several Member States for a single employer operating 
in several Member States; ‘therefore [Or. 7] the performance of work in various 
Member States at the same time (and thus simultaneously) is relevant’[.] 
8. With reference to the judgment of the Court of Justice of 4 October 2012 in Case 
C-115/11, Format Urządzenia i Montaże Przemysłowe Sp. z o.o. v Zakład 
Ubezpieczeń Społecznych, EU:C:2012:606, the Sąd Apelacyjny went on to hold 
that ‘the scope ratione materiae defined by Article 14(2) of the regulation 
excludes a finding that employment in the territory of a single Member State 
constitutes the normal arrangement for the person concerned, which entails a 
finding in the particular context of the case.’ According to the Sąd Apelacyjny, 
that concept does not cover a situation where employment in the territory of a 
single Member State constitutes the normal arrangement for the person concerned. 
9. In the view of the Sąd Apelacyjny, it was normal for UA to work in the territory 
of a single Member State. In view of the length of time spent working in a single 
Member State (several months in [the United Kingdom] and in France), related to 
the nature of his work (construction work) and the business of [Format] 
(construction work in several Member States), it is not difficult to determine the 
applicable legislation in accordance with the general rule. 
10. Format brought an appeal on a point of law before the Sąd Najwyższy against the 
above judgment of the Sąd Apelacyjny, claiming that Article 14(2)(b)(ii) of 
Regulation No 1408/71 and Article 12a(4) of Regulation No 574/72 had been 
infringed and requesting that the following question be referred to the Court of 
Justice for a preliminary ruling: 
Are the conditions laid down in Article 14(2)(b) of Regulation No 1408/71 
fulfilled where an employee of an undertaking with its registered office in a 
Member State, who works under a single contract of employment with that 
employer/undertaking alternatively (sequentially, subsequently) on construction 
sites (in establishments, posts, branches) in the territories of at least two other 
Member States, in whose territory he is not resident, is subject to the legislation of 
that first State during the term of that contract? 
The question referred for a preliminary ruling [Or. 8] 
11. In considering the appeal on a point of law lodged by Format, the Sąd Najwyższy 
has encountered uncertainty as to the interpretation of Article 14(2) of Council 
Regulation (EEC) No 1408/71 in so far as the definition of ‘a person normally 
employed in the territory of two or more Member States’ used in that provision is 
concerned. The Sąd Najwyższy is referring the present question to the Court of 
Justice in order to ascertain whether Article 14(2) of Regulation No 1408/71 is to 
be interpreted as meaning that, in circumstances such as those at issue in the case 
before the Sąd Najwyższy, a person who, under the same employment contract 
FORMAT 
 
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stating the place of employment to be the territory of several Member States, 
works during the term of that contract in the territory of each of those Member 
States not simultaneously or concurrently, but during two successive, directly 
consecutive periods of several months, can come within the concept of ‘a person 
normally employed in the territory of two or more Member States’, within the 
meaning of that provision. 
12. In its judgment of 4 October 2012 in Case C-115/11, Format Urządzenia i 
Montaże Przemysłowe Sp. z o.o. v Zakład Ubezpieczeń Społecznych, 
EU:C:2012:606, the Court of Justice ruled that Article 14(2)(b) of Regulation 
(EEC) No 1408/71 must be interpreted as meaning that, in circumstances such as 
those at issue in the main proceedings, a person who, under successive 
employment contracts stating the place of employment to be the territory of 
several Member States, in fact works during the term of each of those contracts 
only in the territory of one of those States at a time, cannot come within the 
concept of ‘a person normally employed in the territory of two or more Member 
States’, within the meaning of that provision. 
13. In the view of the Sąd Najwyższy, the circumstances of the present case differ 
from those of the case in which the Sąd Apelacyjny w Warszawie referred the 
question for a preliminary ruling on which the Court of Justice ruled in Case 
C-115/11. Firstly, the person concerned worked in the territory of two Member 
States under a single employment contract, whereas W. Kita worked in several 
Member [Or. 9] States under successive employment contracts; secondly, the 
person concerned worked in the territory of several Member States during the 
term of a single contract during two directly consecutive, successive periods, 
whereas W. Kita worked in actual fact during the term of each of those contracts 
only in the territory of one of those States at a time 
14. As a result, the judgment of the Court of Justice of 4 October 2012 [in Case 
C-115/11] does not remove the uncertainties referred to in paragraph 11 above 
concerning the interpretation of Article 14(2) of Council Regulation (EEC) 
No 1408/71 in the light of the circumstances of the present case. It remains 
unclear whether the concept of ‘a person normally employed in the territory of 
two or more Member States’, within the meaning of Article 14(2) of Regulation 
No 1408/71, ‘refers not only to employees who work concurrently in the territory 
of more than one Member State, but also to those who … are required to perform 
their work in several Member States, without that work having to be carried out in 
several Member States at the same time or almost simultaneously’ (see judgment 
of 4 October 2012, C-115/11, paragraph 35). 
15. In the circumstances of the present case, it is disputed in particular whether the 
concept of a person normally employed in the territory of two or more Member 
States covers only persons who, under and during the term of a single employment 
contract work ‘at the same time or almost simultaneously’ and ‘concurrently’ in 
the territory of more than one Member State, or also persons who, under and 
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during the term of a single employment contract work during consecutive, 
successive (alternate, sequential) periods in several Member States. 
16. In this regard, it should be noted that it would appear from paragraph 19 of the 
judgment of the Court of Justice of 12 July 1973 in Case 13/73, Anciens 
Etablissements D. Angenieux fils aîné and Caisse primaire centrale d'assurance 
maladie de la région parisienne v Willy Hakenberg, [EU:C:1973:92] [1973] 
ECR 935, that the concept of a normally employed person relates to a person in an 
employment relationship of a consistent and continuous nature which covers 
either simultaneously or during successive periods the territory of several Member 
States, but does not cover a person who, during a given period and under an 
employment contract, is in actual fact employed in a single Member State and 
then in the subsequent year, under a different [Or. 10] employment contract, 
works in another Member State. In the light of that judgment, normal employment 
is to be understood broadly as meaning the performance of work ‘either 
simultaneously or during successive periods’ in several Member States. 
17. Consistent with this position is the view of the Sąd Najwyższy, which ruled in its 
judgment of 3 April 2019 in Case II UK 576/17, brought by Format against the 
ZUS, with the party concerned, T. K., as intervener, for the issue of a certificate 
on an E 101 form, that ‘it is does not follow from the interpretation in the 
judgment of the Court of Justice of the European Union of 4 October 2012, in 
Case C-115/11, … that Article 14(2) of Regulation … No 1408/71 does not (also) 
cover a person who, in the context of a single employment contract, is obliged to 
perform work permanently in several Member States (work which is characterised 
by the successive or alternate carrying out of work assignments in more than one 
Member State)’[.] 
[18]. On the interpretation of the concept of normally employed person within the 
meaning of Article 14(2) of Regulation No 1408/71 as set out in paragraphs 16 
and 17 above, the Sąd Najwyższy should allow the appeal on a point of law 
lodged by Format, which is founded on a similar basis, namely that that concept 
must be understood as also covering persons who work ‘under a single contract of 
employment with that employer/undertaking alternatively (sequentially, 
successively) on construction sites (in establishments, posts, branches) in the 
territories of at least two other Member States’[.] 
[19]. A different interpretation of the concept of a person normally employed in the 
territory of two or more Member States from that set out in paragraphs 16 and 17 
above was put forward by the Sąd Najwyższy in its judgment of 17 October 2018 
in Case Il UK 305/17, brought by Format against the ZUS, with the party 
concerned, J. O., as intervener, concerning the application of Polish legislation on 
the application of social security schemes to employed persons and their families 
moving within the Community, in which it ruled that Article 14(2) of Regulation 
No 1408/71 can apply ‘only to employees for whom the “normal” arrangement is 
the performance of work in the territory of two or more Member States and 
therefore that work must be performed simultaneously and not successively, for a 
FORMAT 
 
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long period, in the territory of individual Member States, because in that case the 
employee only works ‘normally’ in [Or. 11] the territory of a single Member 
States even if that State changes from time to time’[.] 
[20]. On the interpretation as set out in paragraph [19], the appeal on a point of law 
lodged by Format should be dismissed. 
[21]. In referring this question to the Court of Justice, and also in order to ensure that 
case-law at variance with the principles of EU law does not become established in 
Poland (see judgments of 15 September 2005 in Case C-495/03 Intermodal 
Transports, [EU:C:2005:552] [2005] ECR 1-8151, paragraph 38; and of 12 June 
2008 in Case C-458/06 Gourmet Classic, [EU:C:2008:338] [2008] ECR I-4207, 
paragraph 32), the Sąd Najwyższy supports the interpretation of Article 14(2) of 
Regulation No 1408/71 proposed in the judgment of 17 October 2018 in Case II 
UK 305/17. 
[...]