AFMB e.a. Ltd v Raad van bestuur van de Sociale verzekeringsbank.
Date: 2020-07-16
40


In that regard, it must be recalled that the provisions of Title II of Regulation No 1408/71, one of which is Article 14(2)(a) of that regulation, and the provisions of Title II of Regulation No 883/2004, one of which is Article 13(1)(b) of that regulation, constitute uniform and comprehensive systems of conflict of law rules. Those provisions are intended not only to prevent the simultaneous application of a number of national legislative systems and the complications which might ensue, but also to ensure that persons falling within the scope of one of those regulations are not left without social security protection because there is no legislation which is applicable to them (see, to that effect, judgments of 1 February 2017, Tolley, C‑430/15, EU:C:2017:74, paragraph 58, and of 25 October 2018, Walltopia, C‑451/17, EU:C:2018:861, paragraph 41).
41


Accordingly, provided that a person falls within the scope ratione personae of Regulation No 1408/71 or of Regulation No 883/2004, as that scope is defined in Article 2 of each of those regulations, the single legislation rule, laid down in Article 13(1) of Regulation No 1408/71 and Article 11(1) of Regulation No 883/2004 respectively, is, in principle, applicable, and the national legislation applicable is to be determined in accordance with the provisions of Title II of one of those regulations (see, to that effect, judgments of 1 February 2017, Tolley, C‑430/15, EU:C:2017:74, paragraph 59, and of 25 October 2018, Walltopia, C‑451/17, EU:C:2018:861, paragraph 42).
43


That general rule is, however, stated, in the former provision, to be ‘subject to Articles 14 to 17’ of Regulation No 1408/71, and, in the latter provision, ‘subject to Articles 12 to 16’ of Regulation No 883/2004. In certain specific situations, the unrestricted application of that principle might in fact create, rather than prevent, administrative complications for workers as well as for employers and social security authorities, which could impede the freedom of movement of the persons covered by those regulations (see, to that effect, judgments of 13 September 2017, X, C‑570/15, EU:C:2017:674, paragraph 16, and of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 31).
46


As regards Article 13(1) of Regulation No 883/2004, Article 13(1)(b)(i) provides that a person who normally pursues an activity as an employed person in two or more Member States and who does not pursue a substantial part of that activity in the Member State where he or she resides is subject to the legislation of the Member State in which the undertaking or the employer has its registered office or place of business, if the person is employed by one undertaking or one employer. The Court has stated, in that regard, that a person can fall within the scope of Article 13 only on the condition that he or she habitually carries out significant activities in the territory of two or more Member States (see, to that effect, judgment of 13 September 2017, X, C‑570/15, EU:C:2017:674, paragraphs 18 and 19). As is apparent from the documents available to the Court, that condition is satisfied in the case of the long-distance lorry drivers in the main proceedings.
50


It follows from the requirements of the uniform application of EU law and of the principle of equal treatment that the terms of a provision of EU law which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope must be given an autonomous and uniform interpretation throughout the European Union, which interpretation must take into account not only the wording of that provision but also its context and the objective pursued by the legislation in question (judgment of 19 March 2020, Compañía de Tranvías de La Coruña, C‑45/19, EU:C:2020:224, paragraph 14 and the case-law cited).
52


As regards, first, the terms used, account must be taken, in accordance with the Court’s settled case-law, of their usual meaning in everyday language, in the absence of any definition, in Regulation No 1408/71 or Regulation No 883/2004, of the relevant concepts of a ‘person who is a member of the personnel … of an undertaking’, within the meaning of Article 14(2)(a) of Regulation No 1408/71, and of an ‘employer’, within the meaning of Article 13(1)(b)(i) of Regulation No 883/2004 (see, by analogy, judgment of 3 September 2014, Deckmyn and Vrijheidsfonds, C‑201/13, EU:C:2014:2132, paragraph 19 and the case‑law cited).
54


Next, as regards the context surrounding the concepts mentioned in paragraph 48 of the present judgment, it must, first, be recalled that the application of the system of conflict of law rules established by the regulations in which those concepts are used depends solely on the objective situation of the worker concerned (see, to that effect, judgment of 4 June 2015, Fischer‑Lintjens, C‑543/13, EU:C:2015:359, paragraph 38 and the case-law cited).
55


In addition, in interpreting the social security regulations that preceded Regulation No 883/2004 and, in particular, the provisions relating to conflict of law rules concerning posting of workers, contained in Article 13(a) of Regulation No 3 of the Council of the EEC of 25 September 1958 on the social security of migrant workers (JO 195830, p. 561), later in Article 14(1)(a) of Regulation No 1408/71, the Court has held, in essence, that the undertaking to which a worker is ‘normally attached’, for the purposes of those provisions, is the undertaking under the authority of which he or she is placed, such a condition to be deduced from all the circumstances of the employment concerned (see, to that effect, judgments of 5 December 1967, van der Vecht, 19/67, EU:C:1967:49, p. 354, and of 10 February 2000, FTS, C‑202/97, EU:C:2000:75, paragraph 24).
56


The Court has held, in particular, that an undertaking that has posted an employed worker to the territory of another Member State in order to carry out work there at the premises of another entity must be considered to be the sole employer of that worker, having particular regard to the continuity, for the entire duration of the posting, of the hierarchical relationship between that worker and that employer, so that that work was to be deemed to have been carried out for that undertaking, within the meaning of Article 13(a) of Regulation No 3. The Court stated that that hierarchical relationship resulted from, inter alia, the fact that the undertaking in question paid the worker’s wages and could dismiss him or her on the ground of faults he or she might have committed in the performance of the work at the premises of the entity making use of the work (see, to that effect, judgment of 17 December 1970, Manpower, 35/70, EU:C:1970:120, paragraphs 17, 18 and 20).
57


The Court has also stated that, in order to assess whether a worker falls within the scope of concept of a ‘person who normally pursues an activity as an employed person in the territory of two or more Member States’, within the meaning of Article 14(2) of Regulation No 1408/71, a concept that now appears in Article 13(1) of Regulation No 883/2004, account must be taken of any possible divergence between, on the one hand, the information provided by the employment contracts at issue and, on the other, the way in which the obligations under those contracts were performed in practice (see, to that effect, judgment of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 41).
58


In particular, the Court has stated that the institution concerned may, where appropriate, take account not only of the wording of contractual documents, but also of factors such as the way in which employment contracts between the employer and the worker concerned had previously been performed in practice, the circumstances surrounding the conclusion of those contracts and, more generally, the characteristics and conditions of the work performed by the undertaking concerned, in so far as those factors may throw light on the actual nature of the work in question (judgment of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 45).
59


The Court added that, if it is apparent from relevant factors other than contractual documents that an employed person’s situation in fact differs from that described in such documents, the obligation to apply Regulation No 1408/71 correctly means that it is incumbent on the institution concerned, whatever the wording of those contractual documents, to base its findings on the employed person’s actual situation (see, to that effect, judgment of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 46).
63


In that regard, it must be recalled that the objective of Regulation No 1408/71 is to ensure freedom of movement for employed and self-employed persons within the European Union, while respecting the special characteristics of national social security legislation (see, to that effect, judgment of 9 March 2006, Piatkowski, C‑493/04, EU:C:2006:167, paragraph 19). Likewise, as is clear from, inter alia, recitals 1 and 45 of Regulation No 883/2004, the aim of that regulation is to coordinate the national social security systems of the Member States in order to guarantee that the right to the free movement of persons can be exercised effectively and, thereby, to contribute towards improving the standard of living and conditions of employment of persons who move within the European Union (judgment of 13 July 2017, Szoja, C‑89/16, EU:C:2017:538, paragraph 34). That regulation modernised and simplified the rules contained in Regulation No 1408/71, while retaining the same objective as the latter regulation (judgment of 6 June 2019, V, C‑33/18, EU:C:2019:470, paragraph 41 and the case-law cited).
68


Admittedly, the system introduced by each of those regulations is solely a system for the coordination of the social security legislation of the Member States and not for the harmonisation of such legislation. It is inherent in such a system that differences may remain between the social security rules of the Member States, not least with regard to the level of social contributions to be paid in respect of a given activity (see, to that effect, judgments of 15 January 1986, Pinna, 41/84, EU:C:1986:1, paragraph 20, and of 9 March 2006, Piatkowski, C‑493/04, EU:C:2006:167, paragraph 20 and the case-law cited).