Opinion of the Advocate General — ECLI:EU:C:2022:197
Date: 2022-03-17
Language of the case: Dutch
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
24 December 2020 
Referring court:  
Centrale Raad van Beroep (Higher Social Security and Civil Service 
Court, Netherlands) 
Date of the decision to refer:  
17 December 2020 
Appellants:  
Raad van bestuur van de Sociale verzekeringsbank 
Y 
Respondents:  
X 
Raad van bestuur van de Sociale verzekeringsbank 
  
Subject matter of the main proceedings 
Accrual of social security rights of temporary agency workers residing in another 
Member State in the periods when no temporary agency work is performed and 
the employment relationship is terminated  
Subject matter and legal basis of the request 
Determination of the Member State whose legislation applies, under Regulation 
(EC) No 883/2004, during periods when no temporary agency work is performed. 
Article 267 TFEU.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-713/20 
 
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Questions referred for a preliminary ruling 
1. Must Article 11(3)(a) of [Regulation (EC) No 883/2004] be interpreted as 
meaning that a worker who resides in a Member State, and works in the territory 
of another Member State on the basis of a temporary agency contract, under which 
the employment relationship ends as soon as the temporary assignment ends and is 
then resumed again, remains subject to the legislation of the latter Member State 
during the intervening periods, so long as he has not temporarily ceased that 
work?  
2. What factors are relevant for assessing whether or not there is a temporary 
cessation of activity in such cases? 
3. How much time must elapse before a worker who is no longer in a 
contractual employment relationship is to be regarded as having temporarily 
ceased his activity in the country of employment, unless there are concrete 
indications to the contrary? 
Provisions of European Union law relied on 
Article 1, paragraphs (a) and (b), Article 11(1), (2) and (3)(a) and (b) of 
Regulation (EC) No 883/2004 
Provisions of national law relied on 
Article 6(1)(a) and (b), and (3), Article 6a(a) and (b), Article 13(1)(a) of the 
Algemene Ouderdomswet (General Law on Old-Age Pensions; ‘AOW’) 
Article 6(1)(a) and (b), and (3), Article 6a(a), (b) and (c) of the Algemene 
Kinderbijslagwet (General Law on Child Benefits) 
Article 6(a) and (b), and Article 9 of the Besluit uitbreiding en beperking kring 
van verzekerden volksverzekeringen 1999 (Decree of 1999 on the extension and 
restriction of the category of persons insured in respect of national insurance) 
The case of X 
Succinct presentation of the facts and procedure in the main proceedings 
1 X has Netherlands nationality and moved from the Netherlands to Germany, 
where she has never worked. She has, however, intermittently carried out 
temporary agency work in the Netherlands. Under her temporary agency contract, 
the employment relationship ends by operation of law as soon as the assignment is 
terminated at the client’s request. In addition, X carried out activities in the 
Netherlands for no remuneration or for very little remuneration.  
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2 By decision of 6 July 2015, the Sociale Verzekeringsbank (Netherlands Social 
Security Bank; ‘Svb’) provided a pension statement showing that X had accrued 
only 82% of the pension under the AOW because she was only insured under the 
AOW during the periods that she actually worked as a temporary agency worker 
in the Netherlands.  
3 The Rechtbank (District Court) upheld X’s appeal against that decision, finding 
that the periods between the various temporary work assignments should be 
regarded as periods of leave or of unemployment. Referring to the judgment of the 
Court of Justice of 23 April 2015, Franzen and Others (C-382/13, 
EU:C:2015:261), the District Court ruled that X must be deemed to have been 
insured under the AOW during those periods. It is not desirable for a person to be 
subject to the social security system of another Member State for relatively short 
periods at a time. The Svb lodged an appeal against the District Court’s ruling.  
Essential arguments of the parties in the main proceedings 
4 According to the Svb, X’s case cannot be compared with the Franzen judgment 
because the employment relationship in the cases that led to that judgment, unlike 
that in the present case, was not interrupted. The characteristic of X’s temporary 
agency contract is precisely that this contract ends when the client no longer 
makes use of X’s services and the temporary employment agency then no longer 
has any obligation whatsoever towards her. She cannot be deemed to be on leave 
or unemployed. On the basis of Article 11(3)(a) and (c) of Regulation 
No 883/2004, read in conjunction with Article 11(2) of that regulation, X does not 
satisfy the conditions for being deemed to be a worker, as she has not received any 
unemployment benefit from the Netherlands. As regards the periods during which 
she did not work, the applicable legislation must be determined on the basis of 
Article 11(3)(e) of Regulation No 883/2004.  
5 X maintains that the activities she pursued were entirely focused on the 
Netherlands, even though she lived in Germany. She was therefore continuously 
insured under the AOW.  
The case of Y 
Succinct presentation of the facts and procedure in the main proceedings 
6 Y lives with his family in Poland. He has worked in the Netherlands, with some 
interruptions, since 16 July 2007, on the basis of various types of employment 
contract with the same temporary employment agency as X.  
7 From 20 July 2015, a fixed-term temporary agency contract was in force between 
Y and the temporary employment agency for a period of eight months. Under a 
clause in that contract, when the work for the client ended, Y had to accept 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-713/20 
 
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suitable substitute work. If he refused, the employment contract would end 
prematurely.  
8 Y did not work from 1 January 2016 to 7 February 2016. The contract referred to 
in paragraph 7 ended on 31 December 2015. A new temporary employment 
contract was entered into as of 8 February 2016. 
9 By decision of 29 March 2016, the Svb informed Y that he was not entitled to 
child benefit for January and February 2016 because he was not working in the 
Netherlands on the first working day of those months. As of March 2016, he again 
received child benefit. In response to Y’s objection, the Svb replied by decision of 
20 May 2016 that the temporary employment contract had lapsed during his stay 
in Poland because he was no longer available for work at that time.  
10 The District Court dismissed Y’s appeal as unfounded, primarily because he did 
not have an employment contract in January 2016 and the first week of February 
2016. It could not be assumed that he was on paid or unpaid leave during that 
period. Nor was there any question of discrimination on the basis of place of 
residence, or of a prohibited barrier to the free movement of persons. 
Essential arguments of the parties in the main proceedings 
11 Y argues that his employment contract was not interrupted. He took unpaid leave 
between 1 January and 8 February 2016 in consultation with the employer. In the 
alternative, he argues that one of the objectives of Regulation No 883/2004 is that, 
in the event of a break in employment of less than three months, the legislation of 
the last country of employment remains applicable. The refusal by the Netherlands 
to pay child benefit constitutes, inter alia, an unlawful distinction on the basis of 
place of residence and type of employment, as well as an unlawful barrier to 
freedom of movement. 
12 The Svb maintains that its decisions are correct. Like other workers, temporary 
agency workers are, in principle, insured for the duration of the employment 
contract. However, Y’s temporary agency contract was effectively terminated as 
of 1 January 2016. He was therefore not insured until the new employment 
contract of 8 February 2016. Referring to settled case-law, the Svb notes that there 
is sufficient justification in the Netherlands insurance system applicable to 
residents, for example, as regards old age pensions and child benefit, for the fact 
that in principle only residents are insured. There is therefore no question of a 
prohibited distinction.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
13 The issue in dispute is whether the Netherlands national insurance schemes 
continued to operate during the intervening periods in which X and Y were not 
working. In order to answer that question, it is necessary to determine the Member 
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State whose legislation was applicable to the persons concerned during those 
periods under Regulation No 883/2004.  
14 Under Article 11(1) of Regulation No 883/2004, persons to whom the regulation 
applies are to be subject to the legislation of a single Member State only. Under 
Article 11(3) of that regulation, a person pursuing an activity as an employed or 
self-employed person in a Member State is to be subject to the legislation of that 
Member State (subparagraph (a)). Any other person to whom the provisions of 
subparagraphs (a) to (d) do not apply is to be subject to the legislation of the 
Member State of residence (subparagraph (e)).  
15 The question is whether the situation of X and Y in the intervening periods falls 
under the ‘activity as an employed or self-employed person’ referred to in 
Article 11(3)(a) of Regulation No 883/2004. Under Article 1(a) of that regulation, 
that is the case where the activity or equivalent situation is treated as such for the 
purposes of the social security legislation of the Member State in which such 
activity or equivalent situation exists. What must be assessed, therefore, is 
whether, for the purposes of the Netherlands social security legislation, the 
situation of the persons concerned during the intervening periods is to be treated 
as an activity as an employed or self-employed person, or as equivalent to such an 
activity.  
16 In the specific case of X, her activity during the intervening periods cannot be 
regarded as work for economic purposes, as required by national legislation. Such 
activity does not qualify for insurance under national law and therefore cannot be 
regarded as an activity as an employed or self-employed person under Article 1(a) 
and (b) of Regulation No 883/2004.  
17 In the specific case of Y, the referring court proceeds on the assumption that the 
temporary agency contract between Y and the temporary employment agency was 
terminated on 1 January 2016. Consequently, there was no question of 
employment within the meaning of the national legislation during the period from 
1 January 2016 to 7 February 2016. 
18 The question then, in respect of X and Y, is whether the intervening periods are to 
be regarded as situations equivalent to [employment] activity, which are treated as 
such for the purposes of the application of the Netherlands social security 
legislation. Unpaid leave is leave agreed to by employer and employee for part or 
all of the working time. That is the case only if the employment relationship 
subsists and the obligation to perform work and the obligation to pay wages 
resume at the end of the agreed period.  
19 In the case of X and Y, no employment relationship existed in the intervening 
periods. Indeed, they were not regarded as workers during those periods, nor was 
there any question of temporary interruptions of employment. Consequently, 
Netherlands legislation was not declared applicable pursuant to Article 1(a) in 
conjunction with Article 11(3)(a) of Regulation No 883/2004.  
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20 However, according to the referring court, that does not mean that the legislation 
applicable during the intervening periods must then be determined by reference to 
Article 11(3)(e) of Regulation No 883/2004 (legislation of the country of 
residence). According to the Svb, Article 11(3)(e) of Regulation No 883/2004 
must be applied, however, because X and Y temporarily stopped working during 
the intervening periods. The duration of those periods is not relevant. 
21 In X’s case, the parties and the District Court referred to the Franzen judgment 
(C-382/13, EU:C:2015:261). The District Court infers from the last sentence of 
paragraph 50 of that judgment that a person who pursues an activity in only one 
Member State, even though there is no ongoing employment relationship between 
the employer and the worker, nevertheless remains subject to the legislation of 
that Member State.  
22 The Svb, on the other hand, refers to the deliberation of the Court of Justice in 
paragraphs 51 and 52 of the Franzen judgment (C-382/13, EU:C:2015:261) on the 
application of the legislation of the country of residence. 
23 Furthermore, the provisions of Title II of Regulation No 883/204 constitute a 
complete and uniform system of conflict rules which are intended not only to 
prevent the simultaneous application of a number of national legislative systems, 
but also to ensure that the persons covered by that regulation are not left without 
social security cover because there is no legislation which is applicable to them 
(judgment of 8 May 2019, SF, C-631/17, EU:C:2019:381, paragraph 33). 
Article 11(3)(e) of Regulation No 883/2004 applies to all persons not referred to 
in subparagraphs (a) to (d) of that provision, and not only to those who are 
economically inactive. 
24 The referring court believes that it can infer from that case-law that persons who 
normally work in a Member State are covered by Article 11(3)(a) of Regulation 
No 883/2004, so long as they have not definitively or temporarily ceased their 
activity. Whether an employment relationship still exists does not even appear to 
be a decisive factor. The fact that Article 11(3)(e) of Regulation No 883/2004 
provides for a separate conflict rule for situations not envisaged in subparagraphs 
(a) to (d) of that provision does not alter that conclusion. If, however, the activity 
ceases, even temporarily, the legislation of the country of residence becomes 
applicable.  
25 The referring court further deduces from the judgment of the Court of Justice of 
19 September 2019, Van den Berg and Others (C-95/18 and C-96/18, 
EU:C:2019:76), that the Netherlands, as the country of employment, is not obliged 
to include in its insurance scheme a worker resident in another Member State for 
periods during which, by virtue of Title II of Regulation No 883/2004, the 
legislation of the country of residence is applicable to that worker.  
26 It is not immediately clear to the referring court how those principles should be 
interpreted and applied in cases involving intermittent temporary agency work. In 
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particular, a question arises as to which factors may be relevant when assessing, in 
the case of intermittent temporary agency work, whether or not there has been a 
temporary cessation of activity. Perhaps a general guideline could be provided on 
the question of how much time has to elapse before a worker who no longer has a 
contractual employment relationship should be regarded as having temporarily 
ceased his activity in the country of employment, in the absence of indications to 
the contrary. 
27 In X’s case, it is relevant that she has always focused on the Netherlands labour 
market. In the light, inter alia, of paragraph 50 of the Franzen judgment 
(C-382/13), that could be a reason for assuming that X was continuously subject 
to Netherlands legislation, since she did not actually terminate her professional 
activities in the Netherlands. It could also be relevant that, apparently, X did not 
voluntarily interrupt the temporary agency work.  
28 Nevertheless, the question arises whether, even in the circumstances of X’s case, 
at some time a situation might arise where there is a temporary cessation of 
activity, as a result of which the legislation of the country of residence would 
become applicable to the person concerned.  
29 Another conceivable approach, which is followed by the Svb, is that, in the light 
of paragraph 51 of the Franzen judgment (C-382/13), during a period in which a 
person does not perform any work from which he derives an income and is not in 
an employment relationship, he is subject from the outset to the legislation of the 
country of residence, even if the activity in the Netherlands has not definitively 
ceased. The only exception is if the person concerned is receiving a cash benefit 
as referred to in Article 11(2) of Regulation No 883/2004.  
30 The advantage of this approach is that the applicable legislation can be determined 
in real time, rather than by an assessment after the event. Such an assessment 
leads by definition to uncertainty, especially when the employment relationship no 
longer exists. 
31 A disadvantage of this approach is that the applicable legislation can often change, 
which can be a barrier to workers performing cross-border temporary agency 
work.  
32 Y’s situation is typical of the situation of many workers migrating to the 
Netherlands. The question is what effect this has on the designation of the 
legislation applicable to them.