Case C‑570/15

X

v

Staatssecretaris van Financiën

(Request for a preliminary ruling from the Hoge Raad der Nederlanden)

(Reference for a preliminary ruling — Application of social security schemes — Migrant workers — Determination of the applicable legislation — Regulation (EEC) No 1408/71 — Article 14(2)(b)(i) — Person normally employed in the territory of two or more Member States — Person employed in one Member State and who pursues part of his activities in the Member State of his residence)

Summary — Judgment of the Court (Third Chamber), 13 September 2017

Social security — Applicable law — Article 14(2)(b) of Regulation No 1408/71 — Person normally employed in several Member States — Concept — Person employed in one Member State and resident in another Member State where he pursues part of his activities amounting to 6.5% of his hours worked over the course of the past year — Not included

(Council Regulation No 1408/71, Art. 14(2)(b)(i))

Article 14(2)(b)(i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 592/2008 of the Parliament and of the Council of 17 June 2008, must be interpreted as meaning that a person, such as the one in question in the main proceedings, who is employed by an employer established in the territory of one Member State and who resides in another Member State where he carried out, over the course of the past year, a part of his employment activity amounting to 6.5% of his hours worked without such an arrangement having been agreed with his employer in advance, is not to be considered to be normally employed in the territory of two Member States, within the meaning of that provision.

It is apparent from that provision, which derogates from the general rule of connection to the Member State of employment, that its application is conditional on the person in question being normally employed in the territory of two or more Member States.

Such a requirement assumes that the person concerned habitually carries out significant activities in the territory of two or more Member States (see, by analogy, judgment of 30 March 2000, Banks and Others, C‑178/97, EU:C:2000:169, paragraph 25).

In that regard, the fact that a person works in a Member State merely occasionally cannot be taken into account for the purposes of application of Article 14(2)(b)(i) of Regulation No 1408/71.

In order to determine whether a person should be considered to be normally employed in two or more Member States or, conversely, whether they work merely occasionally in several Member States, regard must be had, in particular, to the duration of periods of activity and to the nature of the employment as defined in the contractual documents, as well as to the actual work performed, where appropriate (see, to that effect, judgments of 12 July 1973, Hakenberg, 13/73, EU:C:1973:92, paragraph 20, and of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 44).

(see paras 18-21, 29, operative part)