C.E. Franzen and Others v Raad van bestuur van de Sociale verzekeringsbank.
Date: 2015-04-23
36. However, the question might arise as to whether, during the periods at issue, the parties to the main proceedings were subject to German legislation by virtue of Article 13(2)(a) of Regulation No 1408/71 and, if so, whether the exclusive operation of that provision means that Netherlands legislation was not applicable. In this context, the referring court cites Kits van Heijningen (C‑2/89, EU:C:1990:183), which concerned part-time work, and asks whether that case-law also applies to on-call contracts.
40. The Court points out that Regulation No 1408/71 establishes a system for the coordination of national social security schemes and lays down, in Title II, rules governing the determination of the legislation to be applied to employed persons moving within the European Union (see, inter alia, to that effect, judgment in Wencel , C‑589/10, EU:C:2013:303, paragraph 45).
41. The objective of the provisions of Title II is to ensure, in particular, that the persons concerned are subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from being applicable and to avoid the complications which may result from that situation (see judgments in Ten Holder , 302/84, EU:C:1986:242, paragraph 19; Luijten , 60/85, EU:C:1986:307, paragraph 12; Bosmann , C‑352/06, EU:C:2008:290, paragraph 16; and Hudzinski and Wawrzyniak , C‑611/10 and C‑612/10, EU:C:2012:339, paragraph 41).
42. The single State principle is expressed, in particular, in Article 13(1) of Regulation No 1408/71 which provides that a worker to whom that legislation applies shall be subject to the legislation of a single Member State only (see judgments in Ten Holder , 302/84, EU:C:1986:242, paragraph 20; |A , 60/85, EU:C:1986:307, paragraph 13; and Bosmann , C‑352/06, EU:C:2008:290, paragraph 16).
43. Under Article 13(2)(a) of Regulation No 1408/71, a person employed in the territory of one Member State is to be subject to the legislation of that State even if he resides in the territory of another Member State. The effect of determining that a given Member State’s legislation is the legislation applicable to a worker pursuant to that provision is that only the legislation of that Member State is applicable to him (see judgments in Ten Holder , 302/84, EU:C:1986:242, paragraph 23, and Bosmann , C‑352/06, EU:C:2008:290, paragraph 17).
44. In its judgment in Kits van Heijningen (C‑2/89, EU:C:1990:183, paragraph 10), which concerned part-time employment of two hours per day twice per week, the Court held that there is nothing in Article 1(a) or Article 2(1) of Regulation No 1408/71 which permits certain categories of persons to be excluded from the scope of the regulation on the basis of the amount of time they devote to their activities. Consequently, a person must be considered to be covered by Regulation No 1408/71 if he meets the conditions laid down in Article 1(a) in conjunction with Article 2(1) of that regulation.
45. By question 1(a), the referring court seeks to determine whether the case-law following the judgment in Kits van Heijningen (C‑2/89, EU:C:1990:183) is applicable to a situation such as that of Mr Giesen’s wife who worked only two or three days per month in Germany. As for the cases of Ms Franzen and Mr van den Berg, the referring court considers it as established that they were employed in Germany and that the Federal Republic of Germany was the competent Member State during the periods at issue in relation to those two persons.
48. The answer to that question can also be deduced from the judgment in Kits van Heijningen (C‑2/89, EU:C:1990:183). In paragraph 14 of that judgment, the Court held that Article 13(2)(a) of Regulation No 1408/71 makes no distinction between full-time and part-time employment. Moreover, the objective which that provision pursues would be frustrated if it were to be considered that the legislation of the Member State in question was applicable only during the periods when the person concerned pursued his activity, and not during those periods when he did not.
49. The Court concluded that Article 13(2)(a) of Regulation No 1408/71 must be interpreted as meaning that a person covered by that regulation who is employed part-time in the territory of a Member State is subject to the legislation of that State both on the days on which he pursues that activity and on the days on which he does not (judgment Kits van Heijningen , C‑2/89, EU:C:1990:183, paragraph 15).
51. That interpretation is not invalidated by the case-law relating to Article 13(2)(f) of Regulation No 1408/71, according to which that article, which subjects a person to the legislation of the Member State of residence under the conditions which it lays down, applies both to persons who have definitively ceased all occupational activity and to those who have merely temporarily ceased their occupational activity (judgments in Kuusijärvi , C‑275/96, EU:C:1998:279, paragraphs 39 and 40, and Adanez-Vega , C‑372/02, EU:C:2004:705, paragraph 24).
58. It should be recalled that, in the judgments in Bosmann (C‑352/06, EU:C:2008:290) and in Hudzinski and Wawrzyniak (C‑611/10 and C‑612/10, EU:C:2012:339), the Court has already condoned exceptions to the single State principle and has recognised that a Member State which does not have jurisdiction by virtue of the provisions of Title II of Regulation No 1408/71 has the power to grant, under certain conditions, family benefits to a migrant worker under its own national law.
59. For instance, in the judgment in Bosmann (C‑352/06, EU:C:2008:290), where there was no overlapping of the same type of family benefits despite the simultaneous application of the legislation of two Member States, the Court held that even though EU law did not require the competent authorities of the State of residence to grant Ms Bosmann the family allowance in question, the possibility of such a grant could not be excluded either if that person may be entitled to those allowances solely on the basis of her residence in that Member State (see, to that effect, judgment in Bosmann , C‑352/06, EU:C:2008:290, paragraphs 25, 27 and 28).
60. In particular, the Court held in paragraph 31 of the judgment in Bosmann (C‑352/06, EU:C:2008:290) that, in circumstances such as those that gave rise to that judgment, the Member State of residence cannot be deprived of the right to grant child benefits to those resident within its territory. While, under Article 13(2)(a) of Regulation No 1408/71, a person employed in the territory of one Member State is to be subject to the legislation of that State even if he resides in the territory of another Member State, the fact remains that the purpose of that regulation is not to prevent the Member State of residence from granting, pursuant to its legislation, child benefits to that person.
61. An analogous exception to the single State principle provided for in Article 13(1) of Regulation No 1408/71 was upheld in the judgment in Hudzinski and Wawrzyniak (C‑611/10 and C‑612/10, EU:C:2012:339) in which the Court recognised the power of the Member State, which did not have jurisdiction under the provisions of Title II of that regulation but within the territory of which a migrant worker was temporarily employed and subject to unlimited income tax liability there, to grant child benefits which were complementary to those paid by the Member State of residence.
62. As regards, in the first place, child benefits and the case of Ms Franzen, it should be pointed out, first, that the Netherlands legislation at issue in the main proceedings, as the German legislation, in the same circumstances as those of Ms Bosmann, does not subject the right to child benefits to conditions of employment or insurance. Consequently, leaving aside the exclusion provided for in Article 6a(b) of the AKW and the AOW, which aims to transpose the single State principle into national legislation, the mere fact of residence in the Netherlands is sufficient for entitlement to child benefits. Second, despite the formal application of the legislation of the Member State of employment, Ms Franzen did not have a right to the benefits at issue because of the limited number of hours worked and low income from her employment within the territory of that Member State. Therefore, as was the case in Bosmann  (C‑352/06, EU:C:2008:290), the facts of Ms Franzen’s case do not present an overlapping of the same form of family benefit in relation to the same period of insurance.
65. Consequently, it must be found, as was held in Bosmann  (C‑352/06, EU:C:2008:290), that Article 13(2)(a) of Regulation No 1408/71, read in conjunction with Article 13(1) of that regulation, does not preclude, in circumstances such as those in the main proceedings, a migrant worker who is subject to the social security scheme of the State of employment, who fulfils the substantive conditions for granting such benefits under the legislation of his State of residence and whose situation does not give rise to an overlapping of the same form of family benefits in relation to the same period, from receiving family benefits or an old-age pension from the latter State.