L. Kik v Staatssecretaris van Financiën.
Date: 2015-03-19
26. However, the national court, referring to the judgment in Aldewereld (C‑60/93, EU:C:1994:271), considers that, even where a professional activity is carried on outside the territory of the European Union, a sufficiently close connection with that territory will result in Title II of Regulation No 1408/71 being applied to a worker who is a national of a Member State.
30. If that is not the case, the referring court considers that no rule in Title II of Regulation No 1408/71 applies as such. Accordingly, since it is unacceptable for a worker to whom the regulation applies not to be subject to any social security scheme, the referring court considers it necessary to identify the most relevant connecting factor. In the case before it, the employee’s residence must, in its view, be discounted, since there is no indication of any link whatsoever between his residence and the employment relationship. The same is true of the place in which his employment income is taxed, since Regulation No 1408/71 attaches no significance to that factor. By a process of elimination, the place where the employer is established assumes particular significance, the national court referring in that regard to the judgment in Aldewereld  (EU:C:1994:271).
42. However, in a situation such as Mr Kik’s, the finding that the work carried out on board a pipe-laying vessel cannot be treated as work carried out on the territory of a Member State when the vessel is located above the part of the continental shelf adjacent to that Member State is not, on its own, capable of calling into question the applicability of Regulation No 1408/71. Indeed, the mere fact that a worker carries on his activities outside the territory of the European Union is not sufficient to exclude the application of the EU rules on the free movement of workers, as long as the employment relationship retains a sufficiently close connection with the Union (judgment in Aldewereld , EU:C:1994:271, paragraph 14).
43. In that regard, it is clear from the Court’s case-law that a sufficiently close connection between the employment relationship in question and the territory of the European Union derives, inter alia, from the fact that 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 carries on his activities (see, to that effect, judgment in Petersen , C‑544/11, EU:C:2013:124, paragraph 42).
47. In that regard, the Court observes that, where a person falls within the scope ratione personae  of Regulation No 1408/71, as defined in Article 2 thereof, the rule in Article 13(1) of the regulation that the legislation of a single Member State is to apply is in principle applicable and the national legislation applicable is determined in accordance with the provisions of Title II of the regulation (judgment in Aldewereld , EU:C:1994:271, paragraph 10).
48. In paragraph 11 of Aldewereld  the Court stated that none of the provisions of Title II of Regulation No 1408/71 relate directly to the situation of a person who has been employed by an undertaking in the European Union but who does not engage in any activity within the Union because he works exclusively in the territory of a third State.
51. In that regard, it should be recalled that the fact that the legislation of a Member State ceases to be applicable constitutes a condition for the application of that provision, and that that provision does not itself define the conditions in which the legislation of a Member State ceases to be applicable (see Commission  v Belgium , C‑347/98, EU:C:2001:236, paragraph 31). As the Court has stated, inter alia, in paragraph 33 of the judgment in van Pommeren-Bourgondiën (C‑227/03, EU:C:2005:431), it is for the legislation of each Member State to lay down those conditions.
56. When it comes to determining what legislation is applicable in such a situation by virtue of Regulation No 1408/71, it must be held that the general rule in Article 13(2)(c) of the regulation, which designates the legislation of the flag Member State in relation to mariners, is not applicable by analogy, since, in the case before the referring court, the person concerned is working on a vessel flying the flag of a third State.
57. In such a situation, the Court has held that the applicable legislation is derived from the provisions of Title II of Regulation 1408/71, account being taken of the factors connecting the particular situation with the legislation of the Member States (see judgment in Aldewereld , EU:C:1994:271, paragraph 20).
58. In the present case, just as in Aldewereld  (EU:C:1994:271, paragraph 21), the only factors connecting the situation with the legislation of a Member State, or of a State treated as such, are the residence of the employee and the place where the employer is established. As the Court stated in paragraph 22 of Aldewereld , according to the scheme 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. Thus, when the worker does not reside in any of the Member States where he works, it is normally the legislation of the Member State where his employer has its registered office or place of business which applies.
63. If, pursuant to Regulation No 1408/71, the legislation of the State in which the employer is established does not provide for an employee such as Mr Kik to be insured under any social security scheme, the legislation of the Member State of residence of the employee will apply. It must be recalled that Title II of Regulation No 1408/71 is also intended to ensure that persons covered by that regulation are not left without social security cover because there is no legislation which is applicable to them (judgment in van Pommeren-Bourgondiën , EU:C:2005:431, paragraph 34 and the case-law cited).