OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 10 January 2019 ( 1 )

Case C‑631/17

SF

v

Inspecteur van de Belastingdienst

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

(Supreme Court of the Netherlands))

(Reference for a preliminary ruling – Social security for migrant workers – Regulation (EC) No 883/2004 – Article 11(3)(e) – Citizen of a Member State employed as a seafarer on a vessel at sea flying the flag of a third State – Employer established in a State other than the worker’s State of residence – Scope ratione personae of the regulation – Determination of the legislation applicable)

1. Should Article 11(3)(e) of Regulation No 883/2004 on the coordination of social security systems ( 2 ) be considered a final provision in the system of rules determining the legislation applicable (conflict rules) in relation to social security laid down by that regulation, which applies to any case not expressly referred to in that regulation, or does it have a more limited scope, applying only to persons who are not economically active?

2. This is essentially the question before the Court in this case, which concerns a request for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), in connection with a dispute between, on the one hand, a Latvian citizen resident in Latvia and employed for a brief period by a company established in the Netherlands on a vessel at sea flying the flag of a third State which, in the relevant period, was outside the territory of the European Union and, on the other hand, the Netherlands tax authorities, which are claiming social security contributions for that period of employment.

3. This case provides the Court with an opportunity to interpret, for the first time, the provision laid down in Article 11(3)(e) of Regulation No 883/2004, which constitutes a new provision that did not exist in the old Regulation No 1408/71. ( 3 ) The judgment delivered by the Court in this case will be of some significance in determining the overall scheme of the conflict rules laid down in Regulation No 883/2004.

I. Legal context

4. Article 11 of Regulation No 883/2004, the first article in Title II of that regulation, entitled ‘General rules’, provides as follows: ‘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; (b) a civil servant shall be subject to the legislation of the Member State to which the administration employing him/her is subject; (c) a person receiving unemployment benefits in accordance with Article 65 under the legislation of the Member State of residence shall be subject to the legislation of that Member State; (d) a person called up or recalled for service in the armed forces or for civilian service in a Member State shall be subject to the legislation of that Member State; (e) any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States. 4. For the purposes of this Title, an activity as an employed or self-employed person normally pursued on board a vessel at sea flying the flag of a Member State shall be deemed to be an activity pursued in the said Member State. However, a person employed on board a vessel flying the flag of a Member State and remunerated for such activity by an undertaking or a person whose registered office or place of business is in another Member State shall be subject to the legislation of the latter Member State if he/she resides in that State. The undertaking or person paying the remuneration shall be considered as the employer for the purposes of the said legislation. …’

II. The facts, the main proceedings and the question referred

5. From 13 August 2013 to 31 December 2013, SF, a Latvian national resident in Latvia, was employed by Oceanwide Offshore Services BV, a company established in the Netherlands.

6. In that period, SF was employed as a seafarer – a steward – on a vessel at sea flying the flag of the Bahamas. During the period in question, the vessel was positioned over the German part of the continental shelf below the North Sea.

7. In relation to the period when SF was employed by Oceanwide Offshore Services BV, the Dutch tax authorities, and more specifically the Inspecteur van de Belastingdienst (Inspector of the Tax and Customs Administration), issued a notice of assessment for social security contributions payable by SF.

8. Considering that he was not subject to the Netherlands social security contributions system, SF filed an appeal against the decision by the Dutch tax authorities before the Rechtbank Zeeland-West-Brabant (District Court, Zeeland-West-Brabant, the Netherlands).

9. That court decided to refer certain preliminary questions to the Hoge Raad (Supreme Court) in order to determine the rules applicable to SF’s situation under Regulation No 883/2004.

10. The Hoge Raad (Supreme Court), the referring court, is proceeding on the assumption that both SF and his employment relationship fall within the scope of Regulation No 883/2004 and that the work undertaken by SF in the period in question cannot be treated as work undertaken within the territory of a Member State of the European Union.

11. The referring court considers that, as a situation such as that of SF is not covered by any other provision of Regulation No 883/2004, a situation of this kind falls within the scope of Article 11(3)(e) of that regulation and that, therefore, the relevant legislation in this case is that of the Member State of residence of the person concerned, namely Latvian law.

12. However, the referring court states that it has been argued before it that SF’s situation is covered by Article 11(3)(a) of Regulation No 883/2004, in conjunction with paragraph 4 of that article. That court notes that, if that legal classification were correct, the law applicable to SF’s situation would be the law in the State in which the employer is established, namely Netherlands law.

13. In that context, since it has doubts as to whether the position it has adopted is correct, the Hoge Raad (Supreme Court) has referred the following question to the Court for a preliminary ruling: ‘The legislation of which Member State is designated by Regulation No 883/2004 as the legislation applicable for the period in which the person concerned was employed by an employer established in the Netherlands in the present case, where the person concerned (a) resides in Latvia, (b) is a Latvian national, (c) is employed by an employer established in the Netherlands, (d) works as a seafarer, (e) works on board a vessel at sea flying the flag of the Bahamas, and (f) performs those activities outside the territory of the European Union?’

III. Procedure before the Court

14. The order for reference was received at the Court Registry on 9 November 2017. Written observations were submitted by SF, the Greek, Polish and Netherlands Governments and the European Commission. At the hearing on 8 November 2018, SF, the Greek and Netherlands Governments and the Commission were represented.

IV. Legal analysis

A. Preliminary remarks

15. By its question, the referring court is essentially asking the Court to clarify which body of legislation is applicable under Regulation No 883/2004 to a situation such as that of the person concerned in the main proceedings, who is resident in his Member State of origin and has worked for an employer established in another Member State as a seafarer on board a vessel at sea flying the flag of a third State which, in the relevant period, was outside the territory of the European Union.

16. There are two opposing arguments on this issue.

17. According to one line of argument, advocated by the referring court, the Greek and Polish Governments and SF, as the situation of that individual is not governed by any other provision of Regulation No 883/2004, it is subject to the application of the residual provision in Article 11(3)(e) of Regulation No 883/2004. It therefore follows that the person concerned is subject to the legislation of the Member State of residence.

18. According to another line of argument, advocated by the Commission and the Netherlands Government, the provision laid down in Article 11(3)(e) of Regulation No 883/2004 applies only to persons who are not economically active and is not therefore applicable to a situation such as that of SF, who undertook an occupational activity during the period concerned. A situation such as SF’s is, rather, subject to the application, on the basis of the provisions of Title II of Regulation No 883/2004, interpreted in the light of the Court’s case-law, ( 4 ) of the legislation of the Member State in which the employer of the person concerned is established.

19. To answer the question posed by the referring court, the Court must therefore determine the scope of Article 11(3)(e) of Regulation No 883/2004. To do this, I believe it is necessary to begin with an analysis of that provision in the context of the scheme of Regulation No 883/2004, in the light of the principles developed by the Court’s case-law in this area, before going on to determine the scope of the provision on the basis of that analysis.

B. The provision in Article 11(3)(e) in the scheme of Regulation No 883/2004

20. As the Court has stated on a number of occasions, the purpose of Regulation No 883/2004, which modernised and simplified the requirements laid down in Regulation No 1408/71 while pursuing the same objective, is to coordinate the social security systems of the Member States in order to ensure that the right to free movement of persons can be exercised effectively. ( 5 )

21. That regulation does not set up a common scheme of social security, but allows different national social security schemes to exist, ( 6 ) laying down a series of common principles which the social security legislation of all Member States must observe and which, together with the system of conflict of laws rules established by that regulation, ensure that persons exercising their right to freedom of movement and residence within the European Union will not be adversely affected by the various national systems because they have exercised that right. ( 7 )

22. In that context, Title II of Regulation No 883/2004 lays down the conflict rules by which it is possible to determine the law applicable to persons falling within the scope of that regulation. Thus, where a person falls within the scope ratione personae of Regulation No 883/2004, as defined in Article 2 thereof, the rule in Article 11(1) of the regulation that the legislation of a single Member State is to apply is, as a general rule, applicable and the national legislation applicable is determined in accordance with the provisions of Title II of the regulation. ( 8 )

23. The Court has explained on several occasions that the provisions of that title constitute a complete and uniform system of conflict rules and that those provisions are intended not only to prevent the simultaneous application of a number of national legislative provisions, but also to ensure that persons covered by Regulation No 883/2004 are not left without social security cover because there is no legislation which is applicable to them. ( 9 )

24. Article 11 of Regulation No 883/2004 is the ‘cornerstone’ of Title II and makes it possible to determine which national legislation is applicable to any person covered by that regulation. ( 10 )

25. With regard specifically to the provision laid down in Article 11(3)(e), the Court has stated that that provision sets out a conflict rule for determining the national legislation applicable to payment of the social security benefits listed in Article 3(1) of Regulation No 883/2004 that may be claimed by persons other than those to whom Article 11(3)(a) to (d) applies, that is to say, in particular, persons who are not economically active. ( 11 )

26. The Court has also had occasion to identify the specific purposes pursued by Article 11(3)(e) of Regulation No 883/2004, which are indeed those mentioned in point 23 above. The Court has explained that that provision is intended not only to prevent the concurrent application of a number of national legislative provisions to a particular situation and the complications which may ensue, but also to ensure that persons covered by Regulation No 883/2004 are not left without social security cover because there is no legislation which is applicable to them. ( 12 ) On the other hand, that provision is not intended as such to lay down the substantive conditions under which a person is entitled to social security benefits. It is, in principle, for the legislation of each Member State to determine those conditions. ( 13 )

27. With regard to Article 11(3)(e) of Regulation No 883/2004, it should also be stated, as noted by the referring court and some of the governments represented before the Court, that that provision constitutes a new feature specific to that regulation. Its predecessor, Regulation No 1408/71, did not, in fact, contain any comparable provision.

28. Regulation No 1408/71 contained only one partially residual provision, which was inserted, ( 14 ) as noted by the Commission, as a result of the judgment delivered by the Court on 12 June 1986, Ten Holder (302/84, EU:C:1986:242), which, however, made it possible to determine only the legislation to be applied to persons to whom one Member State’s legislation had ceased to be applicable without the legislation of another Member State having become applicable to them. ( 15 )

29. Thus, in the scheme of Regulation No 1408/71, although, as recognised by the Court, ( 16 ) Title II of that regulation contained a complete and uniform system of conflict rules, there was no express final provision in that system with a general scope that would make it possible to determine the legislation applicable to all cases not expressly covered by the provisions of Title II.

30. In such a context, the Court was required to intervene on several occasions to address gaps in the system, applying a broad interpretation or making general reference to the provisions of Title II of Regulation No 1408/71 to determine the legislation applicable to specific cases not expressly governed by the conflict rules laid down in Title II of that regulation. ( 17 )

C. Consideration of the scope of Article 11(3)(e) of Regulation No 883/2004

31. It is in the light of the above considerations that it is necessary to interpret the provision laid down in Article 11(3)(e) of Regulation No 883/2004 in order to determine its scope and, more specifically, to verify whether, as has been asserted by the Commission and the Netherlands Government, that provision applies exclusively to persons who are not economically active.

32. According to the Court’s settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording, but also its context and the objectives pursued by the rules of which it is part. ( 18 )

33. First, with regard to the wording of Article 11(3)(e) of Regulation No 883/2004, it should be noted that that provision is worded in fairly general terms. It applies to ‘any other person to whom subparagraphs (a) to (d) do not apply’, subject, on the one hand, to ‘Articles 12 to 16’ and, on the other, to ‘other provisions of this Regulation guaranteeing [that person] benefits under the legislation of one or more other Member States’.

34. A literal analysis of the provision shows not only that it is worded in general terms through the use of the phrase ‘any other person’, but also that it imposes two ‘caveats’, which are themselves general in scope: the first states that it is without prejudice to all the provisions of Title II of Regulation No 883/2004, namely all of the conflict rules that make it possible to determine the law applicable to persons falling within the scope of that regulation, while the second refers to any other provisions of the regulation.

35. In my opinion, that choice of wording argues in favour of an interpretation that confers on that provision the status of a final conflict rule, intended to encompass within its scope any case in which Regulation No 883/2004 does not expressly determine the legislation applicable to the situation of the person concerned.

36. However, a literal analysis of the provision does not reveal any factor that could justify a limitation of its scope solely to persons who are not economically active. Indeed, it is not apparent in any way from the wording of the provision that it is applicable exclusively to certain specific categories of persons.

37. Second, with regard to the context of the provision in question, it should first be noted that no other provision of Regulation No 883/2004, nor any of the recitals of that regulation, provide any evidence in support of the argument that the scope of the provision is limited solely to persons who are not economically active.

38. In its written observations, the Commission justifies that argument by making somewhat cryptic reference to Article 2 of Regulation No 883/2004. That article determines the scope ratione personae of the regulation. It is not clear, however, and the Commission was not able to provide an explanation in its written observations or at the hearing, how that article, as such, can justify limiting the scope of Article 11(3)(e) of that regulation solely to persons who are not economically active.

39. The referring court states that recital 42 of Regulation No 883/2004 was invoked before it to justify the argument limiting the scope of Article 11(3)(e) of that regulation to persons who are not economically active. From the wording of that recital ( 19 ) – which, moreover, refers to the specific situation of the Kingdom of Denmark – it may certainly be gathered that Regulation No 883/2004 was extended to cover the new category of persons who are not economically active. However, I do not see how the express recognition of that extension in the recital in question can be used, in and of itself, to justify limiting the scope of the provision in Article 11(3)(e) of Regulation No 883/2004 solely to that category of persons.

40. In my view, nor is there anything in the structure of Article 11 itself that militates in favour of limiting the scope of the provision in question. The fact that paragraph 4 of that article covers a specific situation different from those covered by paragraph 3(a) to (d) of that article cannot, in my opinion, in any way support the argument for limiting the scope of the provision concerned solely to persons who are not economically active. That specific situation falls within the ‘caveats’ mentioned in point 34 above.

41. Conversely, from a systemic point of view, the presence of these two ‘caveats’, which cover any other provision of Regulation No 883/2004, constitutes, in my view, a solid argument in favour of the argument that Article 11(3)(e) of Regulation No 883/2004 is to be regarded as a final provision.

42. This argument is further supported, again from a systemic point of view, by the fact that Article 11, in which the provision in question is included, is entitled ‘General rules’ and is the first article in Title II of Regulation No 883/2004, which clearly shows that the provisions in that article are intended to be of general application.

43. Third, with regard to the objectives pursued by the provision in question, these have already been clearly identified by the Court, as noted in point 26 above.

44. On this point, I consider that the interpretation of Article 11(3)(e) of Regulation No 883/2004 as constituting a general, residual provision, and a final provision in the system, which guarantees the determination of a law applicable in all cases not expressly covered by that regulation, is the most appropriate interpretation in terms of ensuring that the objectives of the provision and the regulation can be achieved, namely preventing the concurrent application of a number of national legislative measures to a given situation and ensuring that persons covered by Regulation No 883/2004 are not left without social security cover because there is no legislation which is applicable to them.

45. A restrictive interpretation that limits the scope of the provision in question solely to persons who are not economically active would in fact give rise to a risk that gaps would continue to exist even in the requirements laid down by the system of conflict rules created by Regulation No 883/2004, which would result in situations of legal uncertainty that would need to be resolved ex post by the Court, as was the case when the previous Regulation No 1408/71 was in force.

46. As regards the objectives of the provision in question, I should also point out that the argument put forward by the Commission during the hearing that it is apparent from the proposal for a regulation presented by the Commission in 1998 ( 20 ) – on the basis of which Regulation No 883/2004 was subsequently adopted – that the intention of the legislature was to limit the scope of the provision to persons who are not economically active is not borne out by the wording of that proposal.

47. Indeed, the explanatory report on Article 8, which subsequently became, in the final version, Article 11 of the regulation, does not provide any evidence to suggest that the intention of the legislature in relation to the provision in question (which was substantially unchanged in the final version of the regulation) was to limit the scope of that provision solely to persons who are not economically active. ( 21 )

48. In conclusion, it is apparent, in my opinion, from all of the above considerations that the provision laid down in Article 11(3)(e) of Regulation No 883/2004 should be interpreted broadly, in accordance with the objectives of the regulation and of the provision itself, as identified by the Court. That provision, therefore, as a final provision in the system of conflict rules created by that regulation, applies, in my view, to any person who does not fall within the categories covered by paragraph 3(a) to (d) of that article – or for whom no other provision in the regulation determines the legislation applicable – for any reason, and therefore not only on the basis that that person is not economically active.

49. It should also be noted that the broad interpretation of Article 11(3)(e) of Regulation No 883/2004 proposed in the preceding point is in line with the interpretation adopted by the Court of the measure replaced by that provision, namely Article 13(2)(f) of Regulation No 1408/71. Indeed, in its case-law relating to that previous provision, the Court, basing its decision on the fact that the text was couched in general terms, adopted a broad interpretation, according to which it covered ‘any situation’ in which the legislation of a Member State ceased to be applicable to a person, ‘for whatever reason’. ( 22 ) That said, the interpretation of the provision in question that I have proposed in point 48 above cannot, in my view, be called into question by the other arguments put forward before the Court by the Commission and by the Netherlands Government.

50. First, with regard to the references made by the Commission on the one hand to the Practical Guide on the applicable legislation in the European Union (EU), the European Economic Area (EEA) and in Switzerland, ( 23 ) prepared and agreed by the Administrative Commission for the Coordination of Social Security Systems and, on the other hand, to the document from the Directorate-General for Employment, Social Affairs and Inclusion entitled ‘Explanatory notes on modernised social security coordination’, ( 24 ) it should be noted that those documents, whilst being tools for interpreting Regulation No 883/2004, do not have binding effect and are not in any way binding on the Court of Justice or the national courts in the interpretation of that regulation. ( 25 )

51. Second, as regards the various references made by the parties that have submitted observations to the case-law of the Court, I should point out first of all that paragraph 63 of the judgment of 14 June 2016, Commission v United Kingdom (C‑308/14, EU:C:2016:436), to which the Netherlands Government refers in support of its argument, and which is set out in point 25 above, militates in favour of an interpretation of the provision in question to the effect that it does not apply exclusively to persons who are not economically active. In that paragraph, in fact, the Court used the phrase ‘in particular’ ( 26 ) before referring to that category of persons, which indicates an intention not to limit the application of the provision concerned solely to that type of person.

52. With regard to the judgments in Aldewereld and Kik, much as those undoubtedly provide useful guidance on interpretation, it must be pointed out that those judgments were delivered by the Court before the provision laid down in Article 11(3)(e) of Regulation No 883/2004 entered into force and therefore in a different legal context, in which there was no final provision in the system. The solutions adopted by the Court in that different context cannot therefore be transposed to the new context of Regulation No 883/2004, in which it is no longer necessary for the Court to use interpretative solutions to address gaps in the regulatory framework.

53. Third, with regard to the argument put forward by the Commission at the hearing in relation to the existence in the scheme of Regulation No 883/2004 of a hierarchy between lex loci labori and lex domicilii, I do not consider that the existence of that hierarchy in the criteria is, in and of itself, such as to justify limiting the scope of a provision of the regulation that does not expressly provide for such a limitation.

54. Fourth, it is my view that the requirements associated with the principle of equal treatment invoked by the Commission and the Netherlands Government do not preclude the interpretation of Article 11(3)(e) of Regulation No 883/2004 I have proposed. Indeed, as can be seen from recitals 5, 8 and 17 of that regulation, in the scheme of the regulation, that principle is intended to guarantee equal treatment of persons employed in the European Union, in the territory of a Member State, who are therefore subject to application of the provision laid down in Article 11(3)(a) of Regulation No 883/2004.

55. However, where the person concerned does not work in the territory of a Member State, and therefore the link between that work and the territory of the European Union is lessened, it is not absolutely certain that the requirements relating to the principle of equal treatment, which are in turn tied to the more general objective of Regulation No 883/2004 of facilitating the free movement of persons, ( 27 ) are more effectively guaranteed by the use of the criterion based on the place where the employer is established rather than the criterion based on the place where the person concerned is resident. As noted by the Greek and Polish Governments, the case of seafarers, such as that of the person concerned in the main proceedings, whose employment is characterised by a significant degree of international mobility and fixed-term contracts that are often for very short periods and frequently concluded as distance contracts, is a clear example of this.

56. Fifth and last, the interpretation of the provision in Article 11(3)(e) of Regulation No 883/2004 which I have proposed in point 48 above is not precluded, in my view, by the potential risk, raised during the hearing, that the legislation of the Member State of residence of the person concerned does not lay down provisions making it possible for that person to become a member of that Member State’s social security system and that, therefore, the person concerned could be left without protection.

57. On that point, I note that, as can be seen from the Court’s case-law cited in point 20 et seq. above, it is true that the provisions of Title II of Regulation No 883/2004 are solely intended to determine the national legislation applicable to persons falling within the scope of that regulation. As such, they are not intended to lay down the conditions establishing the right or the obligation to become a member of a social security scheme or a particular branch of such a scheme, it being for the legislature of each Member State to lay down those conditions. ( 28 )

58. However, the Court has also clarified that the completeness of the system of conflict rules created by Title II has the effect of divesting the legislature of each Member State of the power to determine at its discretion the ambit and the conditions for the application of its national legislation so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned. ( 29 )

59. When the Member States lay down the conditions establishing the right or obligation to become a member of a social security scheme, they are under an obligation to comply with the provisions of the EU law in force. In particular, the conflict rules laid down by Regulation No 883/2004 are mandatory for the Member States, which do not have the option of determining to what extent their own legislation or that of another Member State is applicable. ( 30 )

60. It therefore follows that, in the light of the objective of the provisions of Title II, which, as noted in points 23 and 26 above, are intended, in particular, to ensure that persons falling within the scope of that regulation are not deprived of social security cover because there is no legislation applicable to them, the conditions establishing the right to become a member of a social security scheme cannot have the effect of excluding from the scope of the legislation at issue persons to whom, pursuant to Regulation No 883/2004, that legislation is applicable. ( 31 )

D. Consideration of the question referred

61. In my view, it is in the light of all of the considerations set out above and the interpretation of Article 11(3)(e) of Regulation No 883/2004 that I have proposed in point 48 above that the question posed by the referring court must be answered.

62. In that regard, I think it appropriate as a preliminary step to confirm that the three assumptions on which that court based its question appear to be correct. ( 32 )

63. First, there can be no question that SF falls within the scope of Regulation No 883/2004 in accordance with Article 2 thereof. Indeed, SF is a Latvian national resident in Latvia and it is not contested that, in the period in question, he must have been subject to the law of a Member State, namely Latvia or the Netherlands. ( 33 )

64. Second, the Court has previously found that work undertaken on a vessel at sea flying the flag of a third State in international waters above the part of the continental shelf adjacent to a Member State cannot be treated as work carried out on the territory of a Member State. ( 34 )

65. Third, there can also be no doubt that SF’s employment relationship has a sufficiently close link to the territory of the European Union. It is clear from case-law that a link of that kind exists where a European Union 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 performs his or her activities. ( 35 )

66. That said, I consider that both the referring court and the parties appearing before the Court are correct in agreeing that the situation of the party concerned by the main proceedings is not subject to the application of any provision of Regulation No 883/2004 other than Article 11(3)(e).

67. First, that situation is not subject to the application of any of the provisions in Article 11(3)(a) to (d) and, more specifically, does not come under subparagraph (a), as work performed as a seafarer is not carried out in the territory of any Member State.

68. Second, the provision in Article 11(4) does not apply, because that provision applies only to activities undertaken on vessels flying the flag of a Member State, whereas the activity in this case was performed on a vessel flying the flag of a third State.

69. Third, none of the other provisions of Title II of Regulation No 883/2004, which apply to cases other than that at issue in the main proceedings, ( 36 ) applies to this situation, and nor does any other provision of the regulation.

70. In those circumstances, in the light of the interpretation of the provision provided in point 48 above, I consider that a situation such as that of SF is subject to the application of the provision laid down in Article 11(3)(e) of Regulation No 883/2004 and that, therefore, a person in such a situation is subject to the legislation of his or her Member State of residence.

V. Conclusion

71. In the light of the foregoing considerations, I propose that the Court reply as follows to the Hoge Raad der Nederlanden (Supreme Court of the Netherlands): Article 11(3)(e) 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 should be interpreted to the effect that a national of a Member State resident in his or her Member State of origin who has worked for an employer established in another Member State as a seafarer on a vessel at sea flying the flag of a third State which, during the period concerned, was outside EU territory, is subject, for that period, to the legislation of his or her Member State of residence.

( 1 ) Original language: Italian.

( 2 ) 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 166, p. 1).

( 3 ) 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 (OJ, English Special Edition 1971 (II), p. 416). This regulation was repealed by Regulation No 883/2004 with effect from 1 May 2010.

( 4 ) Reference is made in particular to the judgments of 29 June 1994, Aldewereld (C‑60/93, EU:C:1994:271), and of 19 March 2015, Kik (C‑266/13, EU:C:2015:188).

( 5 ) See recitals 1, 3, 4 and 45 of Regulation No 883/2004. See also judgments of 14 June 2016, Commission v United Kingdom (C‑308/14, EU:C:2016:436, paragraph 67), and of 21 March 2018, Klein Schiphorst (C‑551/16, EU:C:2018:200, paragraph 31).

( 6 ) Judgments of 14 June 2016, Commission v United Kingdom (C‑308/14, EU:C:2016:436, paragraph 67), and of 21 March 2018, Klein Schiphorst (C‑551/16, EU:C:2018:200, paragraph 44).

( 7 ) See Opinion of Advocate General Cruz Villalón in Commission v United Kingdom (C‑308/14, EU:C:2015:666, point 49).

( 8 ) Judgment of 25 October 2018, Walltopia (C‑451/17, EU:C:2018:861, paragraph 42).

( 9 ) See judgment of 25 October 2018, Walltopia (C‑451/17, EU:C:2018:861, paragraph 41), and footnote 6 of the Opinion of Advocate General Mengozzi in Bogatu (C‑322/17, EU:C:2018:818), with reference to the case-law on Regulation No 1408/71, the overall scheme of which was identical to that of Regulation No 883/2004. See, in particular, judgments of 12 June 1986, Ten Holder (302/84, EU:C:1986:242, paragraph 21); of 11 June 1998, Kuusijärvi (C‑275/96, EU:C:1998:279, paragraph 28); of 13 September 2017, X (C‑570/15, EU:C:2017:674, paragraph 14); and of 6 February 2018, Altun and Others (C‑359/16, EU:C:2018:63, paragraph 29).

( 10 ) Opinion of Advocate General Mengozzi in Bogatu (C‑322/17, EU:C:2018:818, point 34).

( 11 ) Judgment of 14 June 2016, Commission v United Kingdom (C‑308/14, EU:C:2016:436, paragraph 63). Emphasis added.

( 12 ) Ibid., paragraph 64 and the case-law cited.

( 13 ) Ibid., paragraph 65 and the case-law cited.

( 14 ) See Regulation (EEC) No 2195/91 of 25 June 1991 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, self-employed persons and members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ 1991 L 206, p. 2), and specifically the third recital and Article 1(2) of that regulation.

( 15 ) In that regard, see paragraph 40 of the judgment of 11 June 1998, Kuusijärvi (C‑275/96, EU:C:1998:279).

( 16 ) See the case-law mentioned in footnote 9 above.

( 17 ) See judgments of 12 January 1983, Coppola (150/82, EU:C:1983:4, paragraph 11); of 12 June 1986, Ten Holder (302/84, EU:C:1986:242, paragraphs 13 and 14); of 29 June 1994, Aldewereld (C‑60/93, EU:C:1994:271, paragraph 11); and point 11 of the Opinion of Advocate General Lenz in Aldewereld (C‑60/93, EU:C:1994:56), as well as the judgment of 19 March 2015, Kik (C‑266/13, EU:C:2015:188, paragraphs 48 and 49).

( 18 ) See, inter alia, judgment of 21 March 2018, Klein Schiphorst (C‑551/16, EU:C:2018:200, paragraph 34).

( 19 ) According to that recital, ‘in line with the principle of proportionality, in accordance with the premise for the extension of this Regulation to all European Union citizens and in order to find a solution that takes account of any constraints which may be connected with the special characteristics of systems based on residence, a special derogation by means of an Annex XI – “DENMARK” entry, limited to social pension entitlement exclusively in respect of the new category of non-active persons, to whom this Regulation has been extended, was deemed appropriate due to the specific features of the Danish system and in the light of the fact that those pensions are exportable after a ten-year period of residence under the Danish legislation in force (Pension Act)’.

( 20 ) Proposal for a Council Regulation (EC) on coordination of social security systems of 21 December 1998, COM(1998) 779 final.

( 21 ) See p. 7 of the explanatory report on the proposal mentioned in the previous footnote.

( 22 ) See, in greater detail, judgment of 11 June 1998, Kuusijärvi (C‑275/96, EU:C:1998:279, paragraph 40).

( 23 ) See ec.europa.eu/social/BlobServlet?docId=11366&langId=en.

( 24 ) Document available only in French, English and German. https://ec.europa.eu/social/BlobServlet?docId=6481&langId=en.

( 25 ) See, to that effect, footnote 12 of the Opinion of Advocate General Mengozzi in Bogatu (C‑322/17, EU:C:2018:818).

( 26 ) ‘Notamment’ in French, ‘in particular’ in English, ‘insbesondere’ in German.

( 27 ) See point 20 above.

( 28 ) See, inter alia, the case-law cited in points 21 and 26 above and judgment of 25 October 2018, Walltopia (C‑451/17, EU:C:2018:861, paragraph 47).

( 29 ) Judgment of 26 October 2016, Hoogstad (C‑269/15, EU:C:2016:802, paragraph 34 and the case-law cited).

( 30 ) See judgment of 25 October 2018, Walltopia (C‑451/17, EU:C:2018:861, paragraph 48 and the case-law cited).

( 31 ) See judgment of 25 October 2018, Walltopia (C‑451/17, EU:C:2018:861, paragraph 49 and the case-law cited).

( 32 ) See point 10 above.

( 33 ) See, by analogy, judgment of 19 March 2015, Kik (C‑266/13, EU:C:2015:188, paragraphs 38 and 39).

( 34 ) See, to that effect, judgment of 19 March 2015, Kik (C‑266/13, EU:C:2015:188, paragraph 40). However, as was rightly noted by the Greek Government, in the case where the work undertaken on the vessel on which the person concerned carried out his or her duties concerned exploration and/or exploitation of resources on the part of the continental shelf adjacent to a Member State, which must be determined by the referring court, the analysis could be different. See judgment of 17 January 2012, Salemink (C‑347/10, EU:C:2012:17, paragraph 35 et seq.), and the abovementioned judgment in Kik (final sentence of paragraph 41).

( 35 ) See judgments of 29 June 1994, Aldewereld (C‑60/93, EU:C:1994:271, paragraph 14); of 28 February 2013, Petersen and Petersen (C‑544/11, EU:C:2013:124, paragraph 42); and of 19 March 2015, Kik (C‑266/13, EU:C:2015:188, paragraph 43).

( 36 ) Those provisions lay down specific rules applicable to persons who are posted to another Member State (secondment) (Article 12), persons pursuing activities in two or more Member States (Article 13), persons who have chosen voluntary insurance or optional continued insurance (Article 14), contract staff of the European institutions (Article 15), and the exceptions to Articles 11 to 15 (Article 16).