Opinion of the Advocate General — ECLI:EU:C:2014:2015
Date: 2014-06-19
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 (Fifth Chamber), 15 January 2015 Social security — Migrant workers — EU legislation — Scope ratione personae — National of a Member State employed at the consulate of a third State in the territory of another Member State in whose territory he resides — Person with privileged status under Article 71(2) of the 1963 Vienna Convention on consular relations concerning exemption from the social security scheme — Person not affiliated to the national social security scheme of the Member State of residence — Not included (Council Regulation No 1408/71, Arts 2, 13(2)(a) and 16) Article 2 of Regulation No 1408/71 in the version amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, read in conjunction with Article 16 of that regulation, should be construed as meaning that, for the period during which a national of a Member State has been employed at a consular post of a third State within the territory of a Member State of which he is not a national but within whose territory he resides, that national is not subject to the legislation of a Member State within the meaning of that provision if, by virtue of the legislation of his Member State of residence, adopted pursuant to Article 71(2) of the Vienna Convention on consular relations of 24 April 1963, he is not affiliated to the national social security scheme. By virtue of Article 2(1) of Regulation No 1408/71, that regulation applies to salaried workers who are or have been subject to the legislation of one or more Member States and who are nationals of one of those States. The concept of ‘subject to the legislation of a Member State’, within the meaning of that provision, must be construed in the light of the relevant provisions of international law codified in the 1963 Vienna Convention. As regards the social security scheme applicable to consular staff, Article 48 of the Convention provides that members of the consular post, with respect to services rendered by them for the sending State, are in principle exempt from social security provisions which may be in force in the receiving State, although Article 71(2) of the Convention qualifies this by providing that members of the consular post who are nationals of or permanently resident in the receiving State are to enjoy facilities, privileges and immunities in so far as these are granted to them by the receiving State. Thus where a Member State takes advantage of the option of exempting certain staff at consular posts from its social security scheme for the period of their employment in those posts, those persons do not fall within the scope of Regulation No 1408/71. Neither Article 13(2)(a) of Regulation No 1408/71 nor Article 16 thereof have the effect of conferring on nationals of Member States employed at consular posts of a third State who are not subject to the social security legislation of a Member State, within the meaning of Article 2 of this regulation, a right of affiliation to the social security scheme of a Member State or of imposing on them an obligation to become affiliated to such a scheme. (see paras 29, 36, 37, 39, 40, 47, 49, operative part)