Judgment;Summary — ECLI:EU:C:2022:402
Date: 2022-05-19
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-33/21 – 1 
Case C-33/21 
Summary of a request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
18 January 2021 
Referring court:  
Corte suprema di cassazione (Supreme Court of Cassation, Italy) 
Date of the decision to refer:  
21 December 2020 
Applicants:  
Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro 
(INAIL) 
Istituto nazionale della previdenza sociale (INPS) 
Defendant:  
Ryanair DAC 
  
Subject of the action in the main proceedings 
Appeal on a point of law against the judgment of the Corte d’appello di Brescia 
(Court of Appeal, Brescia, Italy) which dismissed the appeals by the Istituto 
nazionale per l’assicurazione contro gli infortuni sul lavoro (National Institute for 
Insurance against Accidents at Work, Italy; ‘INAIL’) and the Istituto Nazionale 
della Previdenza Sociale (National Social Security Institute, Italy; ‘INPS’) against 
the judgment of the Tribunale di Bergamo (District Court, Bergamo, Italy) 
dismissing their actions seeking a declaration that Ryanair DAC (‘Ryanair’) was 
required to insure, under Italian law, 219 employees assigned to Orio al Serio 
Airport (Bergamo, Italy) as travelling personnel. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-33/21 
 
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Subject matter and legal basis of the reference 
The Corte di cassazione (Court of Cassation, Italy), the referring court, must 
determine whether the employees of an airline established in Ireland, assigned to a 
home base in Italy, should be subject to Italian social security legislation.  
The lower courts had ruled out the possibility of that airline having a ‘branch’ or 
‘permanent representation’ in Italy, which precluded the application of the rule 
contained in Article 14(2)(a)(i) of Regulation (EEC) No 1408/71, according to 
which the travelling personnel of a transport undertaking are subject to the 
legislation of the Member State in whose territory such branch or permanent 
representation is situated. 
However, the referring court questions the possibility of applying to the present 
case the provision contained in Article 14(2)(a)(ii), interpreting the concept of a 
person ‘employed principally in the territory of the Member State in which he 
resides’ on the basis of criteria developed by the Court of Justice regarding the 
concept of ‘place where the employee habitually carries out his work’, within the 
meaning of Article 19(2)(a) of Council Regulation (EC) No 44/2001. 
Question referred 
Can the concept of a person ‘employed principally in the territory of the Member 
State in which he resides’ contained in Article 14(2)(a)(ii) [of Regulation (EEC) 
No 1408/71, as amended] be interpreted in the same way as that which 
(concerning judicial cooperation in civil matters, jurisdiction and individual 
contracts of employment (Council Regulation (EC) No 44/2001)) Article 19(2)(a) 
[of the latter Regulation] defines as the ‘place where the employee habitually 
carries out his work’, including in the aviation and airline crew sector (Council 
Regulation (EEC) No 3922/91), as expressed in the case-law of the Court of 
Justice of the European Union referred to in the grounds? 
Provisions of EU law cited 
Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application 
of social security schemes to employed persons and their families moving within 
the Community (OJ 1971 L 149, p. 2), and in particular Articles 13 and 14. 
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and 
the recognition and enforcement of judgments in civil and commercial matters (OJ 
2001 L 12, p. 1), in particular Article 19(2)(a). 
Council Regulation (EEC) No 3922/91 of 16 December 1991 on the 
harmonization of technical requirements and administrative procedures in the field 
of civil aviation (OJ 1991 L 373, p. 4). 
INAIL AND INPS 
 
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Provisions of national law cited 
Article 37 of regio decreto-legge del 4 ottobre 1935, n. 1827 – Perfezionamento e 
coordinamento legislativo della previdenza sociale (Royal Decree-Law No 1827 
of 4 October 1935 – Improvement and coordination of social security legislation) 
(Gazzetta ufficiale della Repubblica italiana No 251 of 26 October 1935 – 
Ordinary Supplement No 251), which provides that insurance for disability, 
retirement, tuberculosis and involuntary unemployment are compulsory for both 
men and women of any nationality who are between the ages of 15 and 65 and 
who are employed to do paid work. 
Article 1 of the decreto del presidente della Repubblica del 30 giugno 1965 n. 
1124 – Testo unico delle disposizioni per l’assicurazione obbligatoria contro gli 
infortuni sul lavoro e le malattie professionali (Presidential Decree No 1124 of 
30 June 1964 – Consolidated text of the provisions on compulsory insurance 
against workplace accidents and occupational illness) (Gazzetta ufficiale della 
Repubblica italiana No 257 of 13 October 1965 – Ordinary Supplement No 0), 
which introduces the requirement to have INAIL insurance against workplace 
accidents for persons who ‘are responsible for machinery not operated directly by 
the person using it, for pressurised equipment, and for electrical or thermal 
systems and equipment, and persons otherwise employed in factories, laboratories 
or organised settings for works, construction or services, involving the use of such 
machinery, equipment or systems …’. 
Article 4 of that decree states that ‘the insurance shall include: (1) those who are 
employed permanently or temporarily to do paid manual labour under the 
supervision of others, regardless of the form of payment; …’. 
Outline of the facts and the main proceedings 
1 The INPS and INAIL applied to the court for Ryanair to be found to have an 
obligation to insure, under Italian law, 219 employees assigned to Orio al Serio 
airport as travelling personnel during the period from June 2006 to February 2010 
(for INPS insurance) and between 25 January 2008 and 25 January 2013 (for 
INAIL insurance). 
2 The INPS action was based on an inspection which revealed that the staff worked 
in Italian national territory, with the application, in this case, of Article 37 of 
Royal Decree-Law No 1827/1935 and Article 13 of Regulation (EEC) 
No 1408/71. 
3 Meanwhile, the INAIL had discovered that the same workers were employed at 
the operating base (or ‘crew room’), which had workstations, computers, printers, 
telephones, a fax machine and storage units for business correspondence. It had 
concluded from this that the workers were required to have INAIL insurance, 
pursuant to Articles 1 and 4 of Presidential Decree No 1124/1965 and Article 37 
of Royal Decree-Law No 1827/1935. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-33/21 
 
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4 Both Bergamo District Court and the Court of Appeal of Brescia held the INPS 
and INAIL actions to be unfounded. In particular, the Court of Appeal of Brescia, 
after concluding that it had not been proven that all 219 workers were covered by 
the E101 certificates produced by Ryanair, proceeded to identify the social 
security law applicable under Regulation (EEC) No 1408/71. The Court of Appeal 
found that all the employees in question had been hired under an Irish 
employment contract managed according to instructions received from Ireland, 
and that those employees worked in Italian territory for 45 minutes a day, 
spending the rest of the time working in aircraft of Irish nationality; it further 
concluded that Ryanair did not have a ‘branch’ or ‘permanent representation’ in 
Italy, as required under EU law in order for there to be an obligation to have 
insurance in Italy. 
5 The Court of Appeal of Brescia also held that the additional linking factor 
consisting of the presence, in Orio al Serio, of Ryanair’s ‘operating base’ within 
the meaning of Annex III to Council Regulation (EEC) No 3922/91 was not 
applicable ratione temporis: that regulation concerned the harmonisation of 
technical requirements and administrative procedures in the field of civil aviation 
safety; only after the entry into force of Regulation (EC) No 883/2004, in May 
2010, as amended by Regulation (EU) No 465/2012, was that criterion extended 
to social security. 
6 In relation to INAIL’s action, the Court of Appeal of Brescia held that, for the 
period after April 2010, any application of the ‘operating base’ criterion was 
precluded by the absence of any factual circumstances able to demonstrate that 
this criterion was relevant. 
7 The INPS and INAIL appealed the Court of Appeal’s judgment before the Court 
of Cassation. 
Succinct presentation of the reasons for the request for a preliminary ruling 
8 The facts at issue in the main proceedings – governed, at the national level, by 
Article 37 of Royal Decree-Law No 1827/1935 and Articles 1 and 4 of 
Presidential Decree No 1124/1965 – fall within the scope of EU law in so far as 
they relate to the identification of the social security legislation applicable to 
employees of companies established in Ireland and airline crew members, 
including on international flights, with a home base at Orio al Serio airport. 
9 The dispute in the main proceedings primarily centres on the interpretation of 
Articles 13 and 14 of Regulation (EEC) No 1408/71, in force until the entry into 
force (on 1 May 2010) of Regulation (EC) No 883/2004 on the coordination of 
social security systems of the Member States of the European Union, following 
the adoption on 16 September 2009 of Regulation (EC) No 987/2009. 
10 The Court of Appeal of Brescia has ruled out the existence in the present case of 
the linking factor referred to in Article 14(2)(a)(i) of Regulation No 1408/71, 
INAIL AND INPS 
 
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according to which persons who are part of the travelling personnel of an airline 
operating international flights and who report to a branch or permanent 
representation of the airline concerned in the territory of a Member State other 
than that in which it has its registered office are subject to the legislation of the 
Member State in whose territory such branch or permanent representation is 
situated. Indeed, as noted by the Court of Justice in the judgment of 2 April 2020, 
C-370/17 and C-37/18 (EU:C:2020:260), the application of that provision requires 
that two cumulative conditions are satisfied: (i) that the airline concerned has a 
branch or permanent representation in a Member State other than that where it has 
its registered office and (ii) that the person concerned is employed by that entity. 
11 However, the possibility should also be considered of applying to the case at issue 
in the main proceedings the provision contained in Article 14(2)(a)(ii), according 
to which ‘where a person is employed principally in the territory of the Member 
State in which he resides, he shall be subject to the legislation of that State, even if 
the undertaking which employs him has no registered office or place of business 
or branch or permanent representation in that territory.’ 
12 In the course of the substantive assessments, it was indeed found that: (1) the 
airline had an ‘operating base’ at Orio al Serio airport which was used to manage 
and organise the work of personnel; (2) the base had computers, telephones, a fax 
machine and storage units for personnel and flight documents; (3) the room was 
used by all Ryanair personnel before and after each shift; (4) personnel who were 
temporarily grounded had to work at the base; (5) personnel at the base reported to 
the ‘supervisor’, who coordinated the airline crew; (6) the supervisor managed the 
personnel and if necessary contacted them at their home, which could not be more 
than an hour away from the airport. 
13 In the light of those facts, it is necessary to determine how the concept of person 
‘employed principally in the territory of the Member State in which he resides’ is 
to be interpreted, taking into account that, as specified in Article 14(2)(a) of 
Regulation (EEC) No 1408/71, this is ‘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 transport services for passengers or goods by rail, 
road, air …’. 
14 The wording of the provision requires an assessment as to whether employment is 
principally in the territory of a given Member State. To that end, it is unreasonable 
to take into account the nationality of the aircraft in which the airline crew work, 
considering that aircraft to be the national territory of the State in which it is 
registered and equating the principal place of employment with the aircraft’s 
nationality. 
15 Such an interpretation seems incorrect because self-evidently, airline crew 
predominantly work on board aircraft. Moreover, the provision contained in 
Article 14(2)(a)(ii) is construed as an exception to the criterion of the place where 
the employer has its registered office. Arguably, the principal place of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-33/21 
 
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employment should be construed as the place where the substantial part of the 
work takes place. This must be interpreted as referring to the place where or from 
which the employee actually performs the essential part of his duties vis-à-vis his 
employer, excluding work carried out on board the aircraft, since otherwise that 
would end up being the location provided for in Article 14(2)(a), from which said 
provision derogates (as evidenced by the phrase ‘with the following restrictions’). 
16 As for the applicable social security legislation, the purpose of the provision 
seems to be to give precedence to the place where the essential aspects of the 
work are carried out, rather than the linking factor relating to the place where the 
employer has its registered office – a solution that ensures more effective control 
by the bodies responsible for enforcing social security measures and ensuring their 
full application with optimum access to social security benefits for the interested 
parties. 
17 That purpose may be achieved by an interpretation of the concept of ‘person … 
employed principally in the territory of the Member State in which he resides’ 
based on the same criteria as those with which the Court of Justice, also in the 
aviation and airline crew sector, interpreted the concept of ‘place where the 
employee habitually carries out his work’ provided for in Article 19(2)(a) of 
Council Regulation (EC) No 44/2001. 
18 In this respect, it should be noted that, in paragraph 57 of the judgment of 
14 September 2017, Sandra Nogueira and Others (C-168/16 and C-169/16, 
EU:C:2017:688), the Court of Justice found – as regards the determination of the 
‘place where the employee habitually carries out his work’, within the meaning of 
Article 19(2)(a) of Council Regulation (EC) No 44/2001 – that the criterion of the 
Member State where the employee habitually carries out his work must be 
interpreted broadly (see, by analogy, judgment of 12 September 2013, Schlecker, 
C-64/12, EU:C:2013:551, paragraph 31 and the case-law cited). 
19 In that ruling, which also concerns personnel employed as air crew by an airline, 
the Court of Justice ruled that the court of a Member State, ‘… when it is not able 
to determine with certainty the “place where the employee habitually carries out 
his work”’, must identify ‘the place from which’ that employee principally 
discharges his obligations towards his employer, and this through the research and 
evaluation of a set of indicia, a method that makes it possible to take account of all 
the factors which characterise the activity of the employee, but also to prevent a 
concept such as that of ‘place where, or from which, the employee habitually 
performs his work’ from being exploited or contributing to the achievement of 
circumvention strategies (see, by analogy, judgment of 27 October 2016, 
D’Oultremont and Others, C-290/15, EU:C:2016:816, paragraph 48 and the case-
law cited). 
20 In addition, the Court of Justice, as regards work relationships in the transport 
sector, in the judgments of 15 March 2011, Koelzsch (C-29/10, EU:C:2011:151, 
paragraph 49), and of 15 December 2011, Voogsgeerd (C-384/10, 
INAIL AND INPS 
 
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EU:C:2011:842, paragraphs 38 to 41), mentioned several indicia that might be 
taken into consideration by the national courts: determining in which Member 
State is situated the place from which the employee carries out his transport-
related tasks, the place where he returns after his tasks, receives instructions 
concerning his tasks and organises his work, and the place where his work tools 
are to be found, in addition to the place where the aircraft aboard which the work 
is habitually performed are stationed. 
21 In the light of those considerations, the main proceedings were stayed and the 
abovementioned question referred to the Court of Justice for a preliminary ruling.