62020CJ0713_RES
Case C‑713/20
Raad van bestuur van de Sociale verzekeringsbankvX
and
YvRaad van bestuur van de Sociale verzekeringsbank
(Request for a preliminary ruling from the Centrale Raad van Beroep)
Judgment of the Court (Second Chamber), 13 October 2022
(Reference for a preliminary ruling – Social security for migrant workers – Regulation (EC) No 883/2004 – Article 11(3)(a) and (e) – Person residing in one Member State and employed in another Member State – Employment contract or contracts entered into with a single temporary employment agency – Temporary work assignments – Intervening periods – Determination of the legislation applicable during intervening periods between temporary work assignments – Termination of the employment relationship)
Social security – Migrant workers – Applicable legislation – Person residing in a Member State who carries out, through a temporary employment agency established in another Member State, temporary work assignments in the territory of that other State – The making of that person subject, during the intervening periods between those work assignments, to the legislation of the Member State of his or her residence – Conditions – Termination of the employment relationship during those intervening periods
(European Parliament and Council Regulation No 883/2004, Art. 11(3)(a) and (e))
(see paragraphs 40, 43, 44, 48, 50, 53, operative part)
Résumé
From January 2013 and July 2007 respectively, X (a Netherlands national residing in Germany) and Y (a Polish national residing in Poland) began working as employed persons in the Netherlands through temporary work agencies. X had concluded a contract of employment with a temporary work agency, in the context of which she performed temporary work assignments, spaced at periods apart during which she carried out unpaid work and low-paid domestic work, also in the Netherlands. Y, for his part, had concluded successive employment contracts with a temporary employment agency, spaced several periods apart.
In July 2015, X was informed of her pension rights, from which it was apparent that, in so far as she was resident in Germany, she was insured under the Netherlands social security scheme only during the periods in which she had actually worked for the temporary employment agency in the Netherlands, but not during the intervening periods between her temporary work assignments.
In March 2016, Y, who had not worked between 1 January and 7 February 2016, was informed that he was not entitled to child benefit under the Netherlands social security scheme for January and February 2016, since he had not been working in the Netherlands on the first working day of each of those months.
Both of the interested parties brought an action before the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) against the decisions taken in respect of them. The referring court, the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands), hearing appeals against the judgments delivered by the rechtbank Amsterdam (District Court, Amsterdam), considers that those disputes concern the question whether the affiliation of the persons concerned to the Netherlands social security system ceased during the intervening periods between the temporary work assignments. That court finds that it is necessary, for that purpose, to determine the legislation applicable during those intervening periods pursuant to Regulation No 883/2004. (
1
)
The Court of Justice holds that, pursuant to that regulation, (
2
) a person residing in a Member State who carries out, through a temporary employment agency established in another Member State, temporary work assignments in the territory of that other Member State is to be subject, during the intervening periods between those temporary work assignments, to the national legislation of the Member State in which he or she resides, provided that, by reason of the temporary contract, the employment relationship ceases during those periods.
Findings of the Court
As a preliminary point, the Court notes the principle established in Article 11(3)(a) of Regulation No 883/2004 that a person pursuing an activity as an employed or self-employed person in a Member State is to be subject to the social security legislation of that Member State. Next, as regards the question whether the persons concerned must be regarded as having pursued, during those intervening periods, an activity as an employed or self-employed person, the Court states that the expression ‘activity as an employed person’ is defined as an activity or equivalent situation, which is treated as such for the purposes of the social security legislation of the Member State in which that activity is pursued or the equivalent situation exists. (
3
)
In the present case, X carried out her activity on the basis of a fixed-term temporary employment contract, which provided that the employment relationship was to commence upon the actual commencement of her activity and end when that activity ceased. Therefore, during the intervening periods between her temporary work assignments, there was no employment relationship between X and the temporary employment agency. Furthermore, the activities carried out by X in the Netherlands during those intervening periods cannot be regarded as an activity as an employed person or an equivalent situation, for the purposes of the Netherlands legislation. As regards Y, during the intervening period between the two contracts which he had concluded with the temporary employment agency, the employment relationship between him and that undertaking had ceased.
It follows that, as a result of the cessation of their occupational activity, the persons concerned were not pursuing activity as employed persons during the intervening periods between their temporary work assignments and were not in an equivalent situation, for the purposes of the Netherlands legislation. Consequently, they did not fall within the scope of Article 11(3)(a) of Regulation No 883/2004, with the result that they were not subject to Netherlands legislation. Indeed, for the purposes of applying the legislation of the Member State of employment, the continued existence of an employment relationship is always necessary. In those circumstances, during the intervening periods, the persons concerned fell within the scope of Article 11(3)(e) of Regulation No 883/2004, (
4
) which constitutes a residual rule intended to apply to all persons who find themselves in a situation which is not specifically governed by other provisions of that regulation, and, therefore, were subject to the legislation of the Member State of residence.
(
1
)	Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 200, p. 1).
(
2
)	More specifically, Article 11(3)(a) and (e) thereof.
(
3
)	See Article 1(a) of Regulation No 883/2004.
(
4
)	That provision provides that any other person to whom subparagraphs (a) to (d) of Article 11(3) do not apply is to be subject to the legislation of the Member State of residence, without prejudice to other provisions of that regulation guaranteeing him or her benefits under the legislation of one or more other Member States.