Opinion of the Advocate General — ECLI:EU:C:2015:319
Date: 2015-05-13
Language of the case: Dutch
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Second Chamber), 9 September 2015 1. Social security — Migrant workers — Applicable legislation — Workers coming within the scope of the Agreement concerning the social security of Rhine boatmen — E 101 certificate issued by the competent institution of a Member State — No probative value binding institutions of other Member States (Council Regulations No 1408/71, Art. 7(2)(a) and No 574/72, Art. 10c to 11a, 12a and 12b, as amended by Regulations No 118/97 and No 647/2005) 2. Questions referred for a preliminary ruling — Reference to the Court — Obligation to make a reference — Obligation to wait — Question already referred in a similar case concerning exactly the same legal issue by a national court lower than the referring court — No such obligations (Art. 267, third para., TFEU) 1. Article 7(2)(a) of Regulation No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community, and Articles 10c to 11a, 12a and 12b of Regulation No 574/72 fixing the procedure for implementing Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 647/2005, must be interpreted as meaning that a certificate issued by the competent institution of a Member State in the form of an E 101 certificate in order to certify that a worker is subject to the social security legislation of that Member State, when that worker comes within the scope of the Agreement of 13 February 1961 concerning the Social Security of Rhine Boatmen, signed at Geneva on 30 November 1979, is not binding on the institutions of other Member States. The fact that the issuing institution did not intend to issue a genuine E 101 certificate but used the standard form of that certificate for administrative reasons is irrelevant in that regard. (see para. 51, operative part 1) 2. The third paragraph of Article 267 TFEU must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law is not required to make a reference to the Court of Justice on the sole ground that a lower national court, in a case similar to the one before it and involving the same legal issue, has referred a question to the Court for a preliminary ruling; nor is it required to wait until an answer to that question has been given. It is for the national courts alone against whose decisions there is no judicial remedy under national law, to take upon themselves independently the responsibility for determining whether the case before them involves an ‘acte clair’. Thus, although a supreme court of a Member State must bear in mind in its assessment that a case is pending in which a lower court has referred a question to the Court of Justice for a preliminary ruling, that fact alone does not preclude the supreme court of a Member State from concluding that the case before it involves an ‘acte clair’. (see paras 59, 60, 63, operative part 2)