Judgment of the Court of 14 December 2021 in Case E-1/21 ISTM International Shipping & Trucking Management GmbH v Liechtensteinische Alters- und Hinterlassenenversicherung, Liechtensteinische Invalidenversicherung, and Liechtensteinische Familienausgleichskasse (Social security – Regulation (EC) No 883/2004 – Regulation (EC) No 987/2009 – Registered office or place of business – Provisional determination – Article 3 EEA – Principle of sincere cooperation) 2022/C 153/09
Date: 2021-12-14
Institutions: EFTA Court
Subjects: European Economic Area, establishment, social security








C_2022153EN.01001501.xml










7.4.2022   


EN


Official Journal of the European Union


C 153/15






JUDGMENT OF THE COURT
of 14 December 2021
in Case E-1/21
ISTM International Shipping & Trucking Management GmbH v Liechtensteinische Alters- und Hinterlassenenversicherung, Liechtensteinische Invalidenversicherung, and Liechtensteinische Familienausgleichskasse


(Social security – Regulation (EC) No 883/2004 – Regulation (EC) No 987/2009 – Registered office or place of business – Provisional determination – Article 3 EEA – Principle of sincere cooperation)


(2022/C 153/09)
In Case E-1/21, ISTM International Shipping & Trucking Management GmbH v Liechtensteinische Alters- und Hinterlassenenversicherung, Liechtensteinische Invalidenversicherung, and Liechtensteinische Familienausgleichskasse – REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Princely Court of Appeal (Fürstliches Obergericht) concerning the interpretation 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 and 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, the Court, composed of Páll Hreinsson, President (Judge-Rapporteur), Per Christiansen and Bernd Hammermann, Judges, gave judgment on 14 December 2021, the operative part of which is as follows:

1.   

Point (b)(i) of 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, read in conjunction with Article 14(5a) 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, must be interpreted as meaning that the mere presence of the registered office of an undertaking does not suffice for the purposes of that provision. In determining where the essential decisions of an undertaking are adopted and where the functions of its central administration are carried out, in accordance with Article 14(5a) of Regulation (EC) No 987/2009, a series of factors must be taken into consideration. These factors include its registered office, the place of its central administration, the place where its directors meet and the place, usually identical, where the general policy of that company is determined. Other factors, such as the place of residence of the main directors, the place where general meetings are held, the place where administrative and accounting documents are kept, and the place where the company’s financial, and particularly banking, transactions mainly take place, may also need to be taken into account.



2.   

In order for a provisional determination to become definitive in accordance with Article 16(2) and (3) of Regulation (EC) No 987/2009, the designated institution of the place of residence must have informed the designated institutions of each EEA State in which an activity is pursued. It does not suffice for the purposes of Article 16(2) and (3) of Regulation (EC) No 987/2009 if the provisional determination reaches the designated institution of an EEA State in which an activity is pursued in whatever form, such as through the undertaking or person concerned.



3.   

Article 16(4) of Regulation (EC) No 987/2009 must be interpreted as meaning that the designated institution of an EEA State may still challenge a provisional determination that has become definitive in accordance with Article 16(3) of that regulation as a result of the two-month period expiring without use having been made of it. Use of the procedure provided for in Article 16(4) may result in a determination that has become definitive in accordance with Article 16(3) of that regulation being set aside retroactively.