Provisional text
OPINION OF ADVOCATE GENERAL
RANTOS
delivered on 5 June 2025 (1)
Case C‑743/23
A
v
GKV-Spitzenverband,
intervening parties
Moguntia Food Group AG
(Request for a preliminary ruling from the Landessozialgericht für das Saarland (Higher Social Court for the Saarland, Germany))
( Reference for a preliminary ruling – Migrant workers – Social security – Applicable legislation – Regulation (EC) No 883/2004 – Article 13(1)(a) and (b)(i) – Regulation (EC) No 987/2009 – Article 14(8) – Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons – Annex II – Article 1(2) – Person normally and simultaneously pursuing an employed activity in Germany, in Switzerland and, for the majority of his time, in third States – Connecting factors – Concept of ‘substantial part of the activities’ – Taking into account of the activities pursued in third States – Applicability of the legislation of the Member State where the employer’s registered office is situated )
I.      Introduction
1.        A (‘the applicant’), who lived in Germany where he usually worked 10.5 days per quarter, was recruited by the company Moguntia Food Group AG, whose registered office is in Switzerland. He also usually worked 10.5 days per quarter in that State, while carrying out the majority of his work, in quantitative terms, in third States
other than the Swiss Confederation.
2.        The question arises in that situation as to which social security legislation was applicable to the applicant. In that regard, should or should not the activities carried out in third States
be taken into account in order to determine whether he pursued in his Member State of residence a ‘substantial part’ of his activities as an employed person, within the meaning of Article 13(1) of Regulation (EC) No 883/2004, (2) as amended
by Regulation (EU) No 465/2012 (3) (‘Regulation No 883/2004’), and of Article 14(8) of Regulation (EC) No 987/2009, (4) as amended by Regulation No 465/2012 (‘Regulation No 987/2009’)?
That is, in essence, the question that is being asked by the Landessozialgericht für das Saarland (Higher Social Court for the Saarland, Germany).
3.        The request for a preliminary ruling has been made in the context of a dispute between the applicant and the Spitzenverband Bund der Krankenkassen (‘GKV-Spitzenverband’), which is the German institution designated to determine the social security legislation applicable where the activity is normally carried out in two or more Member States, concerning the decision of that institution according to which German legislation was applicable to the employment relationship between the applicant and Moguntia Food Group.
II.    Legal framework
A.      International law
4.        The European Community and its Member States, of the one part, and the Swiss Confederation, of the other, signed, on 21 June 1999, seven agreements,
among them the Agreement on the Free Movement of Persons. (5) By Decision 2002/309/EC, (6) those seven agreements were approved on behalf of the European Community and entered into force on 1 June 2002.
5.        According to the preamble to that Agreement on the Free Movement of Persons, as amended by Decision No 1/2012 (7) (‘the AFMP’), the Contracting Parties are ‘resolved to bring about the free movement of persons between them on the basis of the rules applying in the European Community’.
6.        Article 8 of the AFMP, entitled ‘Coordination of social security systems’, states, in point (b) thereof:
‘The Contracting Parties shall make provision, in accordance with Annex II, for the coordination of social security systems with the aim in particular of:
…
(b)      determining the legislation applicable’.
7.        Annex II to the AFMP, entitled ‘Co-ordination of social security schemes’, provides, in Article 1 thereof:
‘1.      The contracting parties agree, with regard to the coordination of social security schemes, to apply among themselves the legal acts of the European Union to which reference is made in, and as amended by, section
A of this Annex, or rules equivalent to such acts.
2.      The term ‘Member State(s)’ contained in the legal acts referred to in section
A of this Annex shall be understood to include Switzerland in addition to the States covered by the relevant legal acts of the European Union.’
8.        Section
A of Annex II thereof, entitled ‘Legal acts referred to’, refers to Regulations Nos
883/2004 and 987/2009, as amended.
B.      European Union law
1.      Regulation No 883/2004
9.        Article 1 of Regulation No 883/2004, entitled ‘Definitions’, provides, in point (a) thereof:
‘For the purposes of this Regulation:
(a)      “activity as an employed person” means any activity or equivalent situation treated as such for the purposes of the social security legislation of the Member State in which such activity or equivalent situation exists;’
10.      Under Title
I of that regulation, entitled ‘General provisions’, appears Article 2 thereof, entitled ‘Persons covered’, which
is worded as follows, in paragraph 1 thereof:
‘This Regulation shall apply to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors.’
11.      Title
II of the said regulation, entitled ‘Determination of the legislation applicable’, comprises Articles 11 to 16 thereof. Article 11 of the same regulation, entitled ‘General rules’, states, in paragraphs 1 and 3 thereof:
‘1.      Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.
…
3.      Subject to Articles 12 to 16:
(a)      a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;
…’
12.      Under
Article 13 of Regulation No 883/2004, entitled ‘Pursuit of activities in two or more Member States’:
‘1.      A person who normally pursues an activity as an employed person in two or more Member States shall be subject:
(a)      to the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in that Member State; or
(b)      if he/she does not pursue a substantial part of his/her activity in the Member State of residence:
(i)      to the legislation of the Member State in which the registered office or place of business of the undertaking or employer is situated if he/she is employed by one undertaking or employer, or
…
2.      A person who normally pursues an activity as a self-employed person in two or more Member States shall be subject to:
(a)      the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in that Member State;
or
(b)      the legislation of the Member State in which the centre of interest of his/her activities is situated, if he/she does not reside in one of the Member States in which he/she pursues a substantial part of his/her activity.
…
4.      A person who is employed as a civil servant by one Member State and who pursues an activity as an employed person and/or as a self-employed person in one or more other Member States shall be subject to the legislation of the Member State to which the administration employing him/her is subject.
…’
2.      Regulation No 987/2009
13.      Title
II of Regulation No 987/2009, entitled ‘Determination of the legislation applicable’, comprises Articles 14 to 21 thereof. Article 14 of that regulation, entitled ‘Details relating to Articles 12 and 13 of
[Regulation No 883/2004]’, provides, in paragraphs 8, 9 and 11 thereof:
‘8.      For the purposes of the application of Article 13(1) and (2) of [Regulation No 883/2004], a “substantial part of employed or self-employed activity” pursued in a Member State shall mean a quantitatively substantial part of all the activities of the employed or self-employed person pursued there, without this necessarily being the major part of those activities.
To determine whether a substantial part of the activities is pursued in a Member State, the following indicative criteria shall be taken into account:
(a)      in the case of an employed activity, the working time and/or the remuneration; and
(b)      in the case of a self-employed activity, the turnover, working time, number of services rendered and/or income.
In the framework of an overall assessment, a share of less than 25% in respect of the criteria mentioned above shall be an indicator that a substantial part of the activities is not being pursued in the relevant Member State.
9.      For the purposes of the application of Article 13(2)(b) of [Regulation No 883/2004], the “centre of interest” of the activities of a self-employed person shall be determined by taking account of all the aspects of that person’s occupational activities, notably the place where the person’s fixed and permanent place of business is located, the habitual nature or the duration of the activities pursued, the number of services rendered, and the intention of the person concerned as revealed by all the circumstances.
…
11.      If a person pursues his activity as an employed person in two or more Member States on behalf of an employer established outside the territory of the Union, and if this person resides in a Member State without pursuing substantial activity there, he shall be subject to the legislation of the Member State of residence.’
III. The dispute in the main proceedings, the questions referred and the procedure before the Court of Justice
14.      The applicant, who was residing in Germany, was employed as a food technician by the company Moguntia Food Group, located in Switzerland, to pursue an activity as an export technologist, during the period from 1 December 2015 to 31 December 2020. That activity consisted in visiting clients and advising them, and organising training courses, seminars and tastings. The applicant habitually worked 10.5 days per quarter in Switzerland, 10.5 days per quarter in Germany, under the teleworking regime at his home, and, for the majority of the time, in third States, where most of his clients were located, namely
in Belarus, Iran, Moldova, Russia and Ukraine. He received his monthly remuneration in a standardised form and without a pro rata allocation based on the place of his activities.
15.      On 19 November 2015, the applicant contacted GKV-Spitzenverband, which, pursuant to Article 16(2) of Regulation No 987/2009, (8) is the designated institution of the place of residence to determine the applicable legislation where the professional activity of the person concerned is normally pursued in two or more Member States, stating that he was working on behalf of Moguntia Food Group and that he carried out less than 25% of his activity in Germany. On 1 December 2015, the applicant took out health insurance in Switzerland with a health organisation. On 16 December 2015, he was issued with a cross-border work permit for Switzerland. By letter of 22 February 2016, the Amt für Sozialbeiträge des Kantons Basel-Stadt (Office for Social Contributions of the Canton of Basel-Stadt, Switzerland) informed the applicant that it had received the proof of health insurance and noted that the applicant had taken out statutory health insurance in Switzerland under the Bundesgesetz über die Krankenversicherung (Swiss Federal Law on Health Insurance) of 18 March 1994. That office added that, in principle, it was no longer possible to make a change to statutory or private insurance abroad.
16.      By decision of 18 August 2016 (‘the decision of 18 August 2016’), GKV-Spitzenverband considered, on the basis of Article 13 of Regulation No 883/2004, that German social security legislation applied to the applicant for the period from 1 December 2015 to 30 November 2020, and issued him with the corresponding A1 certificate, pursuant to Article 19(2) of Regulation No 987/2009. (9) That decision stated that the applicant habitually pursued his activity as an employed person in two or more Member States and that he pursued a substantial part of his activities in his Member State of residence, namely Germany. The said decision, also accompanied by the A1 certificate, was sent to Moguntia Food Group and to the Bundesamt für Sozialversicherungen (Federal Social Insurance Office, Switzerland) and, for the purposes of monitoring contributions, to the German health insurance fund concerned and to the German statutory accident insurance scheme.
17.      By decision of 18 December 2020, GKV-Spitzenverband rejected the applicant’s objection to the decision of 18 August 2016, noting, inter alia, that Regulations Nos
883/2004 and 987/2009 applied to the facts of the case and that, having regard to their geographical scope, only the periods of work carried out by the applicant in Germany and Switzerland were to be taken into account, which meant that he pursued a substantial part of his activities in the Member State in which he was residing. On 28 December 2020, the applicant brought an action against that decision of 18 December 2020 before the Sozialgericht für das Saarland (Social Court for the Saarland, Germany), claiming, inter alia, that, in order to determine whether he was pursuing a substantial part of his activities in his Member State of residence, it was necessary to rely on his employment as a whole and, thus, also on his activities pursued in third States. By judgment of 4 August 2022, that court set aside the decision of 18 August 2016 and ordered GKV-Spitzenverband to determine that, pursuant to Article 13 of Regulation No 883/2004, read in conjunction with Article 16 of Regulation No 987/2009, Swiss social security legislation was applicable to the applicant’s employment with Moguntia Food Group. In that regard, the said court
inter alia noted that the applicant worked only 10.5 days per quarter in Germany, that is to say, just under a sixth of his quarterly working time, and that that period could not be regarded as a ‘substantial part’ of his activities within the meaning of Article 13(1) of Regulation No 883/2004 and of Article 14(8) of Regulation No 987/2009. According to the same court, the Court of Justice had already ruled to that effect in the judgment in
INAIL and INPS. (10)
18.      On 6 September 2022, GKV-Spitzenverband brought an appeal against that judgment before the Landessozialgericht für das Saarland (Higher Social Court for the Saarland), the referring court, seeking to have the judgment set aside, inter alia on the ground that the determination of the applicable legislation relates exclusively to activities pursued within the scope of Regulations Nos
883/2004 and 987/2009 and that if, in the context of Article 13 of the Regulation No 883/2004, the EU legislature had intended to take account of activities pursued in third States, rules would have been adopted for that purpose. Furthermore, it argues that the judgment in INAIL and INPS is not relevant in the present case, since it relates to the specific situation of cabin crew and does not indicate that the persons concerned pursued an activity in a State where Regulation No 883/2004 does not apply.
19.      The referring court emphasises that the question of in which Member State the applicant was under the obligation to join the health insurance scheme during the period at issue depends on the correct interpretation of Article 13 of Regulation No 883/2004 and Article 14 of Regulation No 987/2009. In so far as the applicant received his monthly remuneration in a standardised form and without a pro rata allocation based on the place of his activities, that remuneration does not, in the referring court’s view, provide any indication that he pursued a substantial part of his activities in Germany. His working time is thus of decisive importance and, in that regard, of the approximately 65 days of activity per quarter, he worked 10.5 days (approximately 16% of his working time) in Germany, where he resides, a further 10.5 days (that is to say, the same proportion) in Switzerland and the remaining days in third States (that is to say, approximately 68% of his working time).
20.      The referring court states that, if it were appropriate to rely on the applicant’s total working time, thus taking into account his activities in third States, it would dismiss the appeal brought by GKV-Spitzenverband. In such a situation, the part of the applicant’s employment in Germany would account for less than 25% of his working time and would therefore not constitute a ‘substantial part’ of his activities, within the meaning of Article 14(8) of Regulation No 987/2009, which would result in the Swiss legislation being applicable to him. The applicant could then also require GKV-Spitzenverband to declare
the applicability of that legislation, in accordance with the first sentence of Article 16(2) of that regulation. Conversely, if it were appropriate to take account only of the applicant’s activity in the Member States, the proportion of his activity in Germany would amount to 50% of his working time and would therefore constitute a substantial part of his activities, with the consequence that he would be subject to the German legislation.
21.      According to the referring court, the Court of Justice has not yet adjudicated clearly on the question whether, in order to determine whether a substantial part of the activities is pursued in the Member State of residence, it is necessary to take into account all such activities, including those carried out in third States. In particular, the referring court considers that the judgment in
INAIL and INPS
as well as two judgments cited by GKV-Spitzenverband, namely the judgments in Inspecteur van de Belastingdienst (11) and in Finanzamt Österreich (Family benefits for development aid worker), (12) concern situations other than that at issue in the present case.
22.      In those circumstances, the Landessozialgericht für das Saarland (Higher Social Court for the Saarland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is Article 13(1) of Regulation No 883/2004 in conjunction with Article 14(8) of Regulation No 987/2009 [to] be interpreted as meaning that, when assessing whether a substantial part of the activity is pursued in a Member State, all of the employee’s activities, including his or her activities in third countries, are to be taken into account?
(2)      Or is Article 13(1) of Regulation No 883/2004 in conjunction with Article 14(8) of Regulation No 987/2009 to be interpreted as meaning that, when assessing whether a substantial part of the activity is pursued in a Member State, only those activities of the employee which are pursued in Member States are to be taken into account?’
23.      Written observations were submitted to the Court by the applicant, GKV-Spitzenverband, Moguntia Food Group, the German and Belgian Governments and by the European Commission. Those parties and the French Government made oral submissions at the hearing which was held on 5 March 2025.
IV.    Analysis
24.      By its two questions referred for a preliminary ruling, which it is appropriate to examine together, the referring court asks, in essence, whether Article 13(1) of Regulation No 883/2004, read in conjunction with Article 14(8) of Regulation No 987/2009,
must be interpreted as meaning that, in order to determine whether a person who normally pursues an activity as an employed person in two or more Member States is subject to the social security legislation of his or her Member State of residence, the concept of ‘substantial part of the activities’, within the meaning of those provisions, requires taking into consideration all the activities of that person, including those pursued in third States, or only the activities which he or she carries out in the Member States.
25.      As a preliminary point, I would recall that the provisions of Title
II of Regulation No 883/2004, of which Article 13(1) thereof forms part, constitute, according to the settled case-law of the Court, a complete and uniform system of conflict of law rules. Those provisions are intended not only to prevent the simultaneous application of a number of national legislative systems and the complications which that might entail, but also to ensure that persons falling within the scope of the regulation are not left without social security protection because there is no legislation which is applicable to them. Accordingly, provided that a person falls within the scope ratione personae of the abovementioned regulation, as that scope is defined in Article 2 thereof, the single legislation rule, laid down in Article 11(1) of the same regulation is, in principle, applicable, and the national legislation applicable is to be determined in accordance with the provisions of Title
II of Regulation No 883/2004. To that end, Article 11(3)(a) of the regulation lays down the general rule that a person who pursues an activity as an employed person in the territory of a Member State is subject to the legislation of that State. The general rule is, however, stated to be ‘subject to Articles 12 to 16’ of that regulation. In certain specific situations, the unrestricted application of the general rule laid down in Article 11(3)(a) of that regulation might in fact create, rather than prevent, administrative complications for workers as well as for employers and social security authorities, which could impede the freedom of movement of the persons covered by Regulation No 883/2004. (13)
26.      Those specific situations include
the situation referred to in Article 13(1)(a) and (b)(i) of that regulation, according to which a person who normally pursues an activity as an employed person in two or more Member States is to be subject to the legislation of the Member State of residence if he or she pursues a substantial part of his or her activity in that Member State or, if he or she does not pursue a substantial part of his or her activities there, to the legislation of the Member State in which the registered office or place of business of the undertaking or employer is situated, if that person is employed by an undertaking or employer.
The Court has stated, in that regard, that a person can fall within the scope of Article 13 only on the condition that he or she habitually carries out significant activities in the territory of two or more Member States. (14)
27.      Article 14(8) of Regulation No 987/2009 states that, for the purposes of the application of Article 13(1) and (2) of Regulation No 883/2004, a ‘substantial part’ of employed or self-employed activity pursued in a Member State means that a ‘quantitatively substantial’ part of all the activities of the employed or self-employed person is pursued there, without that necessarily being the major part of those activities. That Article 14(8) specifies that, to determine whether a substantial part of the activities is pursued in a Member State, account is to be taken, in the case of an employed activity, of indicative criteria consisting of working time and/or remuneration and that, in the framework of an overall assessment, a share of less than 25% in respect of those criteria is to be an indicator that a substantial part of the activities is not being pursued in the relevant Member State.
28.      In the present case, it is apparent from the order for reference that, during the period from 1 December 2015 to 31 December 2020, the applicant was residing in Germany and habitually worked 10.5 days per quarter in that Member State, under the teleworking regime at his home, 10.5 days per quarter in Switzerland, where his employer’s registered office was situated, and, for the remainder, in third States. In that context, the referring court is uncertain whether the applicant was subject to German or Swiss social security legislation.
29.      In that regard, I note that, according to Article 8 of the AFMP, the contracting parties are to make provision, in accordance with Annex II thereto, for the coordination of social security systems with the aim, inter alia, of determining the legislation applicable. Article 1(2) of Annex II provides that ‘the term “Member State(s)” contained in the legal acts referred to in section
A of this Annex shall be understood to include Switzerland in addition to the States covered by the relevant legal acts of the European Union’. That section
A thereof provides for the application, as between the contracting parties, of Regulations Nos
883/2004 and 987/2009. Consequently, for the purposes of the present case, it is appropriate to regard the Swiss Confederation not as a third State but as a Member State.
30.      Furthermore, according to the Court’s settled case-law, the mere fact that a worker carries on his or her activities outside the territory of the European Union is not sufficient to exclude the application of the EU rules on free movement of workers, in particular Regulation No 883/2004, as long as the employment relationship retains a sufficiently close connection with that territory. Such a connection derives, inter alia, from the fact that an EU citizen, who is resident in a Member State, has been engaged by an undertaking established in another Member State on whose behalf he or she carries on his or her activities. (15) Moreover, the application of the system of conflict of law rules established by that regulation depends solely on the objective situation of the worker concerned and all the circumstances of his or her employment. (16)
31.      In so far as the applicant pursued his activities in two Member States, namely Germany and Switzerland, the Swiss Confederation being treated as a Member State, it is Article 13(1) of Regulation No 883/2004, read in conjunction with Article 14(8) of Regulation No 987/2009, which determines the social security legislation applicable to him.
32.      As is apparent from Article 14(8) of Regulation No 987/2009, the working time and/or the remuneration must mandatorily be taken into account. (17) In the present case, as the referring court specifies, the applicant received his monthly remuneration in a standardised from and without a pro rata allocation based on the place of his activities. Since that court does not refer to any other criteria which could be taken into account, the legislation to which the applicant was subject must be determined on the basis of his working time. According to the calculations of the said court, considering that there are approximately 65 working days per quarter, the applicant’s activities in Germany represented approximately 16% of his working time if activities pursued in third States are taken into account whereas, if they are excluded, he spent 50% of his working time in Germany, account being had of his work in Switzerland.
33.      I consider that it follows both from the wording of Regulation No 987/2009 and from the case-law of the Court that all the activities of an employed person must be taken into account, including those pursued in third States.
34.      As regards the wording of Regulation No 987/2009, the first subparagraph of Article 14(8) thereof states that reference should be made to all the worker’s activities. Consequently, that provision does not refer only to the activities pursued in Member States. In addition, the third subparagraph of that provision specifies that, in the case of an employed activity, ‘in the framework of an overall assessment, a share of less than 25% in respect of the criteria [of the working time and/or the remuneration] shall be an indicator that a substantial part of the activities is not being pursued in the relevant Member State’. That provision thus provides, in circumstances such as those in the main proceedings, in which remuneration does not constitute a relevant criterion, that the legislation of a worker’s Member State of residence is to apply to that worker only where more than 25% of his or her working time is in that Member State. In addition, according to the said provision, an overall assessment is to be made in order to determine whether a substantial part of the activities is being pursued in that Member State. Article 14(8) of Regulation No 987/2009 makes no distinction in that regard depending on whether the activities are pursued in a Member State or in a third State. Accordingly, the method used by that regulation consists in focussing on the share of the activity pursued in the Member State of residence, out of all the activities of the worker concerned,
and in verifying whether it reaches at least 25%, without it being necessary to examine whether the other shares of the activities take place in a Member State or in a third State.
35.      That interpretation is supported by the case-law of the Court on the determination of the social security legislation applicable in the context of Regulations Nos
883/2004 and 987/2009. Admittedly, as the referring court has observed, that case-law does not directly address the question raised in the present case. However, it does provide guidance as to the method to be followed where a person normally and simultaneously works in two or more Member States and in third States.
36.      Thus, in the first place, I note that while Regulation No 883/2004, as recital 3 thereof indicates, is intended to modernise and simplify the rules for coordinating national social security legislation, it retains the same objectives as those of Regulation (EEC)
No 1408/71. (18) In that regard, the Court has held that it is clear from the broad logic and scheme of that regulation that the criterion of the ‘location’ of the employed or self-employed activity of the person concerned is the main criterion for designating a single legislation which is applicable and that that criterion should be derogated from only in specific situations, using subsidiary criteria such as the person’s State of residence, the State in which the company employing him has its registered office or in which that company has a branch or permanent representation, or the location in which the person’s main activity takes place. (19) According to the Court, the concept of the ‘location’ of an activity must be understood as referring to the place where, in practical terms, the person concerned carries out the actions connected with that activity. (20) That is why, in order to determine the social security legislation to which the worker is subject, it is necessary to examine his actual situation and thus to take into account all the activities which he pursues, irrespective of their location. In other words, to take into consideration only the activities pursued in Member States would create a legal fiction far removed from the actual nature of the activity pursued in the Member State of residence, namely 16% of his actual working time.
37.      In the second place, in the judgment in
INAIL and INPS, on which the applicant relies in support of his line of argument, the Court examined, in the circumstances of the case, which social security legislation was applicable to the cabin crew of an airline. In that regard, in paragraph 64 of that judgment, the Court noted that the order for reference contained no information on the remuneration of the workers at issue and that, as regards their working time, the referring court stated that, during the periods concerned, those workers resided in Italy, worked in the territory of that Member State, more particularly in the premises intended to be used by staff located at an airport for 45 minutes per day, and that those staff were, for the remaining working time, on board the airline’s aircraft. The Court inferred from that that, subject to the determination of the total daily working time of the workers, it did not appear that at least 25% of their working time had occurred in their Member State of residence. (21) The Court therefore proceeded as has been indicated in point 34 of the present Opinion, namely by focussing on the share of the activity pursued in Italy, without examining whether the other shares of working time had been pursued in Member States or in third States. In order to reach the conclusion that the legislation of the Member State of residence is not applicable, it is sufficient to establish that the percentage of activity pursued in that State is less than 25% of total activity. In other words, as Moguntia Food Group has noted in its written observations, it is clear from the judgment in
INAIL and INPS that the only relevant factor is what share of the activities is pursued in the Member State of residence and what share is pursued outside that State.
38.      Like the referring court, I take the view that the judgments in Inspecteur van de Belastingdienst (22) and in
Finanzamt Österreich (Family benefits for development aid worker) (23) do not appear to be relevant for the purpose of answering the questions asked since, unlike the case in the main proceedings, the workers concerned were working only in third States and did not fall within the scope of Article 13 of Regulation No 883/2004. Moreover, the judgment in Sozialversicherungsanstalt, (24) mentioned during the hearing by GKV-Spitzenverband, the French Government and the Commission, concerned, for its part,
the question of how to apply the AFMP and the Agreement on the European Economic Area of 2 May 1992, (25) as amended by the Agreement on the participation of the Republic of Bulgaria and Romania in the European Economic Area, (26) in the situation in which an EU citizen, who simultaneously pursues occupational activities as a self-employed person in an EU Member State and a State of the European Free Trade Association, which is a party to the Agreement on the European Economic Area, takes up an additional occupational activity as a self-employed person in Switzerland. That question thus related not to the taking into consideration of the activities carried out in third countries to determine whether a substantial part of the activities is pursued in a Member State, but to the delimitation of the scope of those agreements.
39.      In accordance with Article 13(1)(b)(i) of Regulation
No 883/2004, if the person concerned does not pursue a substantial part of his or her activity in the Member State of residence, he or she is to be subject to the legislation of the Member State in which the registered office or place of business of the undertaking or employer is situated.
40.      I would add that the taking into consideration of the activities pursued in third States in no way invalidates the general rule that a worker who pursues activities in more than one Member State is always subject to the legislation of a Member State. If the registered office of the employer is situated in a third State, it follows explicitly from Article 14(11) of Regulation No 987/2009 that, ‘if a person pursues his activity as an employed person in two or more Member States on behalf of an employer established outside the territory of the Union, and if this person resides in a Member State without pursuing substantial activity there, he shall be subject to the legislation of the Member State of residence’.
41.      None of the arguments put forward by GKV-Spitzenverband or by the German, Belgian or French Governments is capable of calling into question the interpretation according to which, in a case such as that of the applicant, the applicable social security legislation must be determined by taking into consideration all the activities pursued, including in third States.
42.      First, GKV-Spitzenverband and the German, Belgian and French Governments submit that Article 13(1) of Regulation No 883/2004 is expressly based on the situation of a person who normally pursues an activity as an employed person in two or more Member States. Thus, according to Article 1(a) of that regulation, the definition of the term ‘activity as an employed person’ implies that that concept is always linked to an activity in a Member State. Furthermore, there is no habitual activity as an employed person in two or more Member States in a case where a person pursues his or her activity in a Member State and in a third State. Consequently, Article 13 of that regulation does not cover the activities pursued in third States and the working time devoted to activities in those countries should not be taken into account when assessing whether a substantial part of the activity as an employed person is pursued in the Member State of residence. However, in the present case, it is not disputed that the applicant ‘normally pursues’ an activity as an employed person in a Member State, namely the Federal Republic of Germany, and a State treated as a Member State, namely the Swiss Confederation. Nor is it disputed that the applicant works on behalf of and under the direction of an employer whose registered office is in Switzerland. It follows that that Article 13(1) applies to the applicant’s situation, even if he has worked for the most part in third States, as is confirmed by the case-law of the Court cited in point 30 of the present Opinion, and that provision does not provide that the activities pursued in third States
must be excluded when determining the applicable legislation.
43.      Second, those parties maintain that the objective pursued by Article 13 of Regulation No 883/2004 is to subject the person concerned to the legislation of the Member State with which he or she maintains the closest ties, an objective which could be compromised if the activities pursued in third States were taken into account. It is true that that taking into account, solely for the purposes of calculating the percentage of the worker’s activities carried out in the various Member States concerned, leads de facto to a reduction in the quantitative share of the activities pursued in the Member State of residence, which favours the application of the legislation of the Member State in which the employer has its registered office. However, according to the actual wording of the Court’s case-law on the interpretation of Regulation No 1408/71, application of the legislation of the Member State in which the worker resides appears to be an ancillary rule which comes into play only where that legislation has a link with the employment relationship. (27) Consequently, that rule constitutes an exception to the general rule of applying the legislation of the Member State of the location of the activity. Similarly, the Court has recognised that connection to the Member State of residence is a derogation. (28) Such an interpretation applies by analogy to Regulation No 883/2004, it being understood that the third subparagraph of Article 14(8) of Regulation No 987/2009 is intended to clarify the quantitative share necessary to establish that link. I am therefore not in agreement with the German Government’s argument according to which the applicability of the law of the Member State of residence is the starting point of the conflict of law
rules set out in Article 13(1) of Regulation No 883/2004.
44.      Third, according to GKV-Spitzenverband and the German and French Governments, even if, in the context of Article 13(1) of Regulation No 883/2004, activities as an employed person pursued in third States
were taken into account, the same could not be done with
paragraph 2 of that article, which concerns activities as a self-employed person. If that were the case, having regard to the wording of Article 13(2)(b) of that regulation and to the fact that there is no rule similar to Article 14(11) of Regulation No 987/2009 for activities as a self-employed person, the question of
to which social security legislation a self-employed person would be subject would not be clear. As regards that argument, I note that the rules applicable to employed and self-employed persons are different, such that the solution used for the former cannot be applied by analogy to the latter. As regards the latter, Article 13(2)(b) of Regulation No 883/2004 states that a person who normally pursues an activity as a self-employed person in two or more Member States is to be subject to the legislation of the Member State in which the centre of interest of his or her activities is situated, if he or she does not reside in one of the Member States in which he or she pursues a substantial part of his or her activity. Once again, that provision expressly refers to the social security legislation of a Member State and not that of a third State. In addition, under Article 14(9) of Regulation No 987/2009, the ‘centre of interest’ of the activities of a self-employed person, within the meaning of Article 13(2)(b) of Regulation No 883/2004, is to be determined by taking account of all the aspects of that person’s occupational activities, in particular the place where the person’s fixed and permanent place of business is situated, the habitual nature or duration of the activities pursued, the number of services rendered as well as the intention of the person concerned as is apparent from all the circumstances. It is thus a factual assessment,
which is not subject to change depending on whether or not the activities pursued in third States are taken into account when calculating the percentage of activities pursued in the Member State of residence.
45.      Fourth, those parties take the view that Regulations Nos
883/2004 and 987/2009 provide for information and cooperation mechanisms in order to ensure the correct implementation of their provisions, in particular in Article 76 of Regulation No 883/2004. (29) However, they argue that the duty of sincere cooperation exists only between Member States and that the information, for example on working time or the employer’s registered office, needed by the competent institution in order to determine the applicable legislation, cannot be obtained from or verified with third States, which creates a risk of abuse. In that regard, I recall that, under those regulations, the applicable social security legislation will always be that of a Member State. In those circumstances, assuming that the taking into account of the activities pursued in third States resulted in the application of the legislation of the Member State in which the employer has its registered office, the competent institution of the latter State and that of the Member State of residence, as well as the worker concerned, would be bound by a mutual obligation of information and cooperation. (30) In particular, as the Commission emphasised at the hearing, the competent institution of the Member State of residence,
within the framework of the overall assessment that it must carry out, may ask the institution of the Member State in which the employer’s registered office is situated to verify with the employer the reality of the services provided by the worker in third States by requesting, for example, evidence such as travel tickets or invoices. Contrary to what the Belgian Government argues, the taking into account of the activities pursued in a third State does not result in those activities being defined by the legislation of the third States in which the work is performed.
46.      Fifth, the Belgian Government illustrates its position through the example of a person who resides in Member State A and who pursues an activity as an employed person in the territories of Member States B and D. At the same time, that person belongs to a reserve military force of a third State
where he or she carries out, during the weekend or his or her days of leave, active missions and undergoes training in the territory of that third State. According to that government, pursuant to its national law, that third State will, as a general rule, regard those activities as public service activities, which, on the basis of Article 13(4) of Regulation No 883/2004, result in the social security legislation of that third State being applied to that person. In that regard, I note that, under that provision, a person who is employed as a civil servant ‘by one Member State’ and who pursues an activity as an employed person and/or self-employed person in one or more other Member States is to be subject to the legislation of the Member State to which the administration employing him or her is subject. Consequently, that provision cannot apply to a person who is a civil servant in a third State.
47.      Sixth, at the hearing, the Belgian and French Governments argued that including the activities pursued in third States would artificially strengthen, de facto or de jure, the Member State in which the employer has its registered office. The French Government thus gave the example of an employed person who resides in France, the registered office of whose employer is situated in Germany and who also works in Denmark and, for the rest of the time, in third States. For that worker, the applicable social security legislation would be the German legislation, even though he or she spends 0% of his or her working
time there. While it is true that a worker will certainly have a better knowledge of the legislation of his or her Member State of residence, mastering the language used to communicate with the competent institution, the logic underpinning Regulations Nos
883/2004 and 987/2009, as has been explained, is to subject a worker who pursues activities in several Member States to the legislation of the Member State in which his or her employer has its registered office where, as in the case in the main proceedings, he or she does not pursue a substantial part of his or her activities in his or her Member State of residence. In that sense, completely disregarding the majority of the working time on the sole ground that it is carried out in third States runs counter to the objective of those regulations. Furthermore, taking the view that 16% of the time worked in the Member State of residence must be counted as representing 50% of the total time of the activities pursued seems clearly artificial.
48.      Last, the Commission, for its part,
has taken the view in its observations that the intention of the EU legislature was not to leave aside the activities pursued in third States. Thus, that institution has proposed answering the questions referred for a preliminary ruling to the effect that, in order to examine whether a substantial part of the activities is pursued in the Member State of residence, it is necessary to take into account all the activities pursued by the worker concerned, including those pursued in third States, the latter having to be attributed to the Member State in which the undertaking which employs him or her has its registered office provided that that worker also pursues activities in the Member State in which that undertaking has its registered office and that he or she pursues his or her activities abroad on behalf of that undertaking and in accordance with its instructions. As I have indicated in point 34 of the present Opinion, the applicable legislation must be determined firstly
by examining which quantitatively significant part of the total activity of the employee is being pursued in the Member State of residence. Depending on whether that part is greater or less than 25% either the legislation of the Member State of residence or that of the Member State in which the employer has its registered office will apply.
49.      In the light of all the foregoing, I am of the view that, in order to determine whether a person who normally pursues an activity as an employed person in two or more Member States is subject to the legislation of the Member State of residence, the concept of ‘substantial part of the activities’ requires taking into consideration all the activities of that person, including those pursued in third States, and not only the activities which he or she
carries out in the Member States.
50.      It follows that, in the present case, the legislation applicable to the applicant was the social security legislation of the State treated as a Member State where his employer’s registered office was situated, namely the Swiss Confederation.
V.      Conclusion
51.      In the light of the foregoing considerations, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Landessozialgericht für das Saarland (Higher Social Court for the Saarland, Germany) as follows:
Article 13(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, read in conjunction with Article 14(8) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, as amended by Regulation No 465/2012,
must be interpreted as meaning that
in order to determine whether a person who normally pursues an activity as an employed person in two or more Member States is subject to the social security legislation of his or her Member State of residence, the concept of ‘substantial part of the activities’, within the meaning of those provisions, requires taking into consideration all the activities of that person, including those pursued in third States, and not only the activities which he or she carries out in the Member States.
1      Original language: French.
2      Regulation of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1).
3      Regulation of the European Parliament and of the Council of 22 May 2012
(OJ 2012 L 149, p. 4).
4      Regulation of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1).
5      OJ 2002 L 114, p. 6.
6      Euratom Decision of the Council, and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation (OJ 2002 L 114, p. 1, and corrigendum OJ 2015 L 210, p. 38).
7      Decision of the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons of 31 March 2012 replacing Annex II to that Agreement on the coordination of social security schemes (OJ 2012 L 103, p. 51), which entered into force on 1 April 2012.
8      According to that provision, ‘the designated institution of the place of residence shall without delay determine the legislation applicable to the person concerned, having regard to Article 13 of Regulation [No 883/2004] and Article 14 of Regulation [No 987/2009]. That initial determination shall be provisional. The institution shall inform the designated institutions of each Member State in which an activity is pursued of this provisional determination.’
9      Under that provision, ‘at the request of the person concerned or of the employer, the competent institution of the Member State whose legislation is applicable pursuant to Title
II of [Regulation No 883/2004] shall provide an attestation that such legislation is applicable and shall indicate, where appropriate, until what date and under what conditions’.
10      Judgment of 19 May 2022 (C‑33/21, ‘the judgment in
INAIL and INPS’, EU:C:2022:402).
11      Judgment of 8 May 2019 (C‑631/17, EU:C:2019:381).
12      Judgment of 25 November 2021 (C‑372/20, EU:C:2021:962).
13      See judgment of 3 June 2021, TEAM POWER EUROPE (C‑784/19, EU:C:2021:427, paragraphs 32 to 35 and the case-law cited).
14      See judgment of 16 July 2020, AFMB and Others (C‑610/18, EU:C:2020:565, paragraph 46 and the case-law cited).
15      See judgment of 25 November 2021, Finanzamt Österreich (Family benefits for development aid worker) (C‑372/20, EU:C:2021:962, paragraphs 36 and 37 and the case-law cited).
16      See, to that effect, judgment of 16 July 2020, AFMB and Others (C‑610/18, EU:C:2020:565, paragraphs 54 and 60 and the case-law cited).
17      ‘The Practical guide on the applicable legislation in the European Union (EU), the European Economic Area (EEA) and in Switzerland’, prepared and agreed by the Administrative Commission for the Coordination of Social Security Systems and published in December 2013, p. 28, indicates that ‘other criteria may also be taken into account. It is for the designated institutions to take into account all relevant criteria and to undertake an overall assessment of the person’s situation before deciding on the applicable legislation’,
but the guide does not define those other criteria. The guide, available in the various official languages of the European Union, may be consulted at the following address: https://employment-social-affairs.ec.europa.eu/policies-and-activities/moving-working-europe/eu-social-security-coordination/specialised-information/official-documents_en.
18      Council Regulation of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and their families moving within the Community (OJ 1971 L 149, p. 2). See judgment of 5 June 2014, I (C‑255/13, EU:C:2014:1291, paragraph 41).
19      See judgment of 27 September 2012, Partena (C‑137/11, EU:C:2012:593, paragraph 49).
20      See, to that effect, judgment of 27 September 2012, Partena (C‑137/11, EU:C:2012:593, paragraph 57).
21      In paragraph 65 of that judgment, the Court added, however, that it would be for the referring court to ascertain, on the basis of the criteria set out earlier in the judgment, whether or not during the periods concerned the workers in question pursued a substantial part of their activity in the Member State in which they resided, namely in Italy, and that, in the affirmative, the workers will have to be regarded, in accordance with Regulation No 883/2004 as amended in 2009, as falling under Italian social security legislation as from 1 May 2010, the date on which that regulation entered into force.
22      Judgment of 8 May 2019 (C‑631/17, EU:C:2019:381).
23      Judgment of 25 November 2021 (C‑372/20, EU:C:2021:962).
24      Judgment of 26 September 2024 (C‑329/23, EU:C:2024:802).
25      OJ 1994 L 1, p. 3.
26      OJ 2007 L 221, p. 15
27      See judgment of 19 March 2015, Kik (C‑266/13, EU:C:2015:188, paragraph 58 and the case-law cited). As Advocate General Bot noted in his Opinion in the Chain case (C‑189/14, EU:C:2015:345, paragraph 62), at the time of the drafting of the first regulation concerning the social security of migrant workers, the mobility of workers consisted primarily of a single migration to another Member State and, thus, the linking to the Member State of the place of performance of the work was based on the presumption that it was the most protective solution for the worker in so far as he or she could, inter alia, claim the same rights as national workers.
28      See judgment of 13 September 2017, X (C‑570/15, EU:C:2017:674, paragraph 28).
29      That article provides, in paragraph 4
thereof that ‘the institutions and persons covered by this Regulation shall have a duty of mutual information and cooperation to ensure the correct implementation of this Regulation’.
30      According to the case-law of the Court, the proper functioning of the system introduced by Regulation No 883/2004 requires effective and close cooperation both between the competent institutions of the various Member States and between those institutions and persons falling within the scope of that regulation. The Court added that such cooperation is necessary for the purposes of determining the rights and obligations of the persons concerned and with a view to enabling them to access their rights as quickly as possible and under optimum conditions (see judgment of 16 November 2023, Zakład Ubezpieczeń Społecznych Oddział w Toruniu,
C‑422/22, EU:C:2023:869, paragraph 53).