By contrast, there is no indication in the file before the Court that the present case concerns, for example, the posting of workers by an undertaking established in one Member State to another Member State. See, for example, Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1). In any event, it is settled case-law with respect, for example, to the posting of workers who are nationals of non-member countries by a service provider established in a Member State of the European Union, that national provisions which make the provision of services within national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation or work permit constitute a restriction on the <mask> pursuant to Article 56 TFEU. See, judgment of 11 September 2014, Essent Energie Productie (C‑91/13, EU:C:2014:2206, paragraph 45 and the case-law cited). See also, judgment of 14 November 2018, Danieli & C. Officine Meccaniche and Others (C‑18/17, EU:C:2018:904, paragraphs 42 to 45). Moreover, such restrictions are difficult to justify in order to prevent disturbances on the labour market as posted workers do not gain access to the labour market of the Member State to which they are posted and there are less restrictive means of ensuring that those workers are used for the provision of the service in question.


32 See Opinion of Advocate General Bobek in El Hassani (C‑403/16, EU:C:2017:659, point 76). Nevertheless, that last requirement has been interpreted rather broadly in the Court’s case-law. The Court has held, for example, that a person may rely on the general principle of protection against arbitrary or disproportionate intervention by public authorities in the sphere of that person’s private activities (see, inter alia, judgment of 6 October 2020, État luxembourgeois (Right to bring an action against a request for information in tax matters) (C‑245/19 and C‑246/19, EU:C:2020:795, paragraphs 57 and 58) or the rights of <mask> and of freedom of establishment deriving from Articles 56 and 49 TFEU (see judgment of 14 June 2017, Online Games and Others (C‑685/15, EU:C:2017:452, paragraph 58)).


In that regard, it should be noted that, according to the Court’s settled case-law, a cultural policy may constitute an overriding requirement relating to the general interest which justifies a restriction of the <mask>. The maintenance of the pluralism which that policy seeks to safeguard is connected with freedom of expression, as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, which freedom is one of the fundamental rights guaranteed by the EU legal order and, in particular, by Article 11 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgment of 13 December 2007, United Pan-Europe Communications Belgium and Others, C‑250/06, EU:C:2007:783, paragraph 41 and the case-law cited).


In the fourth place, the German Government maintains that an interpretation of the Directives in the light of their legal bases and of fundamental rights and freedoms supports its position. It emphasises, first, that the Directives were adopted on the basis of Articles 47(2), 55 and 95 of the EC Treaty,   the aim of which is to make it easier to exercise the freedom of establishment and the <mask> and the object of which is the establishment and functioning of the internal market. Consequently, those provisions of the Treaty cannot constitute the legal basis for the adoption of provisions which apply to the economic activities of undertakings operating in a third country. Secondly, the Directives impose obligations on vertically integrated undertakings that restrict the free movement of capital, within the meaning of Article 63 TFEU, as well as the freedom of undertakings and those who work for them to conduct a business, enshrined in Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’), as well as the right to property enshrined in Article 17(1) of the Charter. To the extent that the activities of third-country undertakings carried on outside the European Union produce no effects on the internal market, such restrictions of fundamental rights and freedoms are not necessary to attain the objective of ensuring the efficient, non-discriminatory operation of transmission systems within the European Union.


In such a situation, one could argue that it would be difficult to conceive that the overriding reason relating to the protection of workers of Member State (B) could be invoked by Member State (A). One could legitimately ask the question whether it is really for Member State (A) – in the context of posting as part of the <mask> of the employer – to know what is best for the workers of Member State (B). Such an approach might appear patronising, if not overbearing. Besides, there is the delicate question of competence: one may argue that, as a matter of principle, a Member State (A) should only be able to protect workers habitually employed in that very Member State, whereas those employed in another Member State (B) and – in the context of the exercise of the freedom to provide services of their employer – posted to Member State (A) should not normally be those whom that Member State can protect.


The award of public contracts by or on behalf of Member States’ authorities has to comply with the principles of the [FEU] Treaty, and in particular the free movement of goods, freedom of establishment and the <mask>, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. However, for public contracts above a certain value, provisions should be drawn up coordinating national procurement procedures so as to ensure that those principles are given practical effect and public procurement is opened up to competition.


46. At the outset, I would like to point out that the principal objective of the EU rules on public procurement, and notably Directive 2014/24, is the freedom of establishment and the <mask>. (29) As that directive is designed to implement the provisions of the FEU Treaty relating to those freedoms, (30) the social services at issue in the main proceedings necessarily fall within the material scope of the same fundamental freedoms.


In that regard, it should be noted at the outset that the activity described in paragraph 44 of the present judgment constitutes a service, within the meaning of Article 57 TFEU, since it is exercised in the territory of a Member State by a national of another Member State. Furthermore, operating a massage salon on the territory of another Member State falls within the scope of the freedom of establishment and the <mask> under Article 49 et seq. TFEU.


See, by analogy, judgment of 5 October 2010, Elchinov (C‑173/09, EU:C:2010:581, paragraph 38). See also judgment of 16 May 2006, Watts (C‑372/04, EU:C:2006:325, paragraphs 46 and 47). In paragraphs 31 and 34 of the judgment of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281), the Court stated that the Charter’s field of application so far as concerns action of the Member States is defined in Article 51(1) of the Charter, according to which its provisions are addressed to the Member States only when they are implementing EU law. The applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter. It follows from the above that when the Member States are implementing Regulation No 883/2004 and Directive 2011/24, the provisions of the Charter are applicable. Moreover, in paragraph 35 of the judgment of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281), the Court stated that, where a Member State relies on overriding requirements in the public interest in order to justify rules which are liable to obstruct the exercise of the <mask>, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights henceforth guaranteed by the Charter. Thus the national rules in question can fall under the exceptions provided for only if they are compatible with these fundamental rights, the observance of which is ensured by the Court.


18. With regard to case 2, the Latvijas Republikas Satversmes tiesa (Constitutional Court) considered that it would have to return to its examination of the substantive issue. It found that the right to own property enshrined in Article 105 of the Latvian Constitution should be interpreted in the light of the EU principles concerning the freedom of establishment and the <mask>.


In the present case concerning a request for a preliminary ruling pursuant to Article 267 TFEU, the Supreme Court (Ireland) puts four questions to the Court of Justice for a preliminary ruling. Those questions concern the interpretation of Article 5 of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of <mask>.   The request has been made in proceedings between the applicant in the main proceedings, VK, and An Bord Pleanála (Planning Appeals Board, Ireland) concerning the requirement that, in order to represent the applicant before the referring court, the applicant’s foreign lawyer is required to work in conjunction with a lawyer registered with the Bar of Ireland.


In paragraphs 16 and 17 of that judgment the Court stated that the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements does not hinder trade between Member States so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. In such circumstances, the rules on the sale of products from another Member State are deemed not prevent their access to the market and thus fall outside the scope of Article 34 TFEU. The rule of reason approach developed in the field of free movement of goods is not however ‘set in stone’ and some rare exceptions exist in the case-law which temper that approach. See, for example, judgment of 26 June 1997, Familiapress (C‑368/95, EU:C:1997:325). In that case, the Court found that even though the relevant national legislation was directed against a method of sales promotion (and thus a selling arrangement), it nevertheless affected the actual content of the products. The Court, however, has not adopted a similar rule of reason approach in the field of <mask> in accordance with which a particular type or category of national measure is deemed, in principle, not to impede access to the market. A case-by-case, rather than a more formalistic approach, which identifies or singles out particular categories of measures has, thus, consistently been adopted. See, judgment of 10 May 1995, Alpine Investments (C‑384/93, EU:C:1995:126, paragraphs 33 to 38). In the latter judgment, the Court stated that the reason why legislation imposing certain selling arrangements in respect of goods falls outside the scope of Article 34 TFEU is that it does not prevent the access of imported products to the market of a Member State or impede them any more than it impedes the access of domestic products. In that case however, the prohibition of cold calling potential clients in another Member State imposed on financial intermediaries who offered off-market commodities futures was held to be a restriction of the freedom to provide services. Despite the fact that I may think that cold calling is a quintessential selling method/arrangement, the Court found that no analogy could be drawn with the judgment of 24 November 1993, Keck and Mithouard (C‑267/91 and C‑268/91, EU:C:1993:905) as the prohibition of cold calling in question directly affected access to the market in services.


However, as is apparent from paragraphs 60, 61 and 72 of the present judgment, that requirement can be relied on, in accordance with the Court’s case-law relating to Article 56 TFEU and point (a) of the first subparagraph of Article 8(2) of Directive 2011/24, only in certain situations, listed exhaustively in that case-law and in sub-points (i) and (ii) of the latter provision, which do not include a medical consultation. It follows that the restriction of the <mask> contained in the prior authorisation in the Member State of residence of such consultation in another Member State cannot be justified by reference to the objectives set out in the previous paragraph and does not comply with the conditions provided for in point (a)(i) and (ii) of the first subparagraph of Article 8(2) of Directive 2011/24.


Do the principles of freedom of establishment and <mask> laid down in Articles 49 and 56 TFEU [and] Articles 15 and 16 of [the Framework Directive], which are intended to safeguard pluralism and freedom of expression, together with the EU-law principle of proportionality, preclude the application of national legislation concerning public broadcasting and audiovisual media services, such as that of Italy, contained in [the provision at issue in the main proceedings] and Article 43(14) [of TUSMAR], according to which the revenues relevant for determining the second threshold of 10% include those of undertakings that are neither subsidiaries nor under a dominant influence, but are merely ‘affiliates’ within the meaning of Article 2359 of the Codice Civile (Civil Code) (referred to in Article 43(14) [of TUSMAR]), even if it is not possible to exert any influence on the information being broadcast by those undertakings?


Next, it should be noted that the Kingdom of Belgium has failed to demonstrate, supporting its argument with precise evidence, why the prohibition at issue is the only measure capable of attaining the desired objectives, so that none of the measures less restrictive of the <mask> suggested by the Commission would be sufficiently effective to attain those objectives.


As regards, in the second place, the examination of the conformity of a national measure such as that at issue in the main proceedings with regard to the fundamental <mask> guaranteed by Article 56 TFEU, it should be recalled that all measures which prohibit, impede or render less attractive the exercise of that freedom must be regarded as restrictions on that freedom (see, to that effect, judgment of 4 May 2017, Vanderborght, C‑339/15, EU:C:2017:335, paragraph 61 and the case-law cited).


Do the principles of freedom of establishment and <mask> laid down in Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU) and Articles 15 and 16 of Directive 2002/21/EC [on a common regulatory framework for electronic communications networks and services] aimed at safeguarding pluralism and freedom of expression, together with the EU law principle of proportionality, preclude the application of national legislation concerning public broadcasting and audiovisual and radio media services, such as that of Italy, contained in Article 43(11) and (14) [of Legislative Decree No 177/2005], according to which the revenues relevant for determining the second threshold of 10% are also applicable to undertakings that are not subsidiaries or under a dominant influence, but are merely“affiliates” within the meaning of Article 2359 of the Codice Civile (Civil Code) (referred to in Article 43(14)), even if it is not possible to exert any influence on the information being broadcast by those undertakings?


However, it is important to note that Member States, in making use of this option, must respect the fundamental rules of the TFEU, in particular those relating to the free movement of goods, the freedom of establishment and the <mask>, as well as the principles deriving from them, such as the principles of equal treatment and proportionality (see, to that effect, judgment of 3 October 2019, Irgita, C‑285/18, EU:C:2019:829, paragraph 48 and the case-law cited), which are, moreover, reflected in Article 18 of Directive 2014/24.


Furthermore, it is apparent from the Court’s case-law that, where a Member State relies on overriding requirements in the public interest in order to justify rules which are liable to obstruct the exercise of the <mask>, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights henceforth guaranteed by the Charter. Thus the national rules in question can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court (judgment of 30 April 2014, Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 35 and the case-law cited).


Taking the view that its activity constituted an Information Society service to which the principle of the exclusion of prior authorisation laid down in Article 4(1) of Directive 2000/31 applies, Star Taxi App lodged a prior administrative complaint requesting revocation of Decision No 626/2017. That request was refused on the ground that the disputed rules, first, had become necessary on account of the considerable scale on which unauthorised legal entities were found to be unlawfully taking bookings and, secondly, did not infringe the <mask> by electronic means since they provided a framework for an intermediation service in connection with the activity of passenger transport by taxi.


Although under Article 11(2) of Directive 2004/18 contracting authorities that use a central purchasing body are themselves not subject, in the situations to which that article refers, to the public procurement procedures laid down by that directive, under the same article that central purchasing body is subject to the obligation on contracting authorities to comply with the procedures laid down by the directive. The main objective of the rules of EU law in the field of public contracts, namely <mask> and the opening up of undistorted competition in all the Member States (see, to that effect, judgment of 8 December 2016, Undis Servizi, C‑553/15, EU:C:2016:935, paragraph 28 and the case-law cited), is thereby secured.


The referring court asks whether the exemption from corporation tax provided for in Article 22(3) of the Corporation Tax Code and the exemption from withholding tax provided for in Article 22(10) in the case of dividends paid to UCITS formed under Portuguese law and having their seat in Portugal infringe the freedom of movement of capital (Article 63 TFEU) and the <mask> (Article 56 TFEU).


Article 1(2)(a) and (b) of Directive 2018/957 does not have as its purpose to facilitate the pursuit of a professional activity on a self-employed basis (the provision of cross-border services), but actually undermines the pursuit of such activities. The replacement of the concept of ‘minimum rates of pay’ with that of ‘remuneration’ and the new regime applicable to long-term posted workers together give rise to unjustified and disproportionate restrictions on the <mask>. There is therefore a contradiction in using the provisions governing the harmonisation of freedom of movement as the legal basis for that directive.


(Reference for a preliminary ruling — Urgent preliminary ruling procedure — EEA Agreement — Non-discrimination — Article 36 — <mask> — Scope — Agreement between the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis — Agreement on the surrender procedure between the Member States of the European Union and Iceland and Norway — Extradition to a third State of an Icelandic national — Protection of a Member State’s nationals against extradition — No equivalent protection for nationals of another State — Icelandic national who was granted asylum under national law before acquiring Icelandic citizenship — Restriction of freedom of movement — Justification based on the prevention of impunity — Proportionality — Verification of the guarantees provided for in Article 19(2) of the Charter of Fundamental Rights of the European Union)


It follows from the foregoing that, contrary to the arguments presented by the Republic of Poland, the contested directive is such as to develop the <mask> on a fair basis, which is the main objective pursued by that directive, since it ensures that the terms and conditions of employment of posted workers are as close as possible to those of workers employed by undertakings established in the host Member State, by providing that those posted workers have the benefit of terms and conditions of employment in that Member State that offer greater protection than those provided for by Directive 96/71.


The Commission maintains that, in accordance with Article 2 of Directive 2006/123, and also Article 4(1) thereof, which refers to the definition of services included in the FEU Treaty, the scope of that directive includes teaching activities and training courses that are financed essentially by private contributions. Consequently, private institutions carrying out teaching and scientific research activities in Hungary on a temporary basis are justified in relying on the right to the <mask> under that directive.


In that regard, it must be noted that, first, the protection of consumers, in particular recipients of legal services provided by persons involved in the administration of justice and, second, the proper administration of justice are objectives which feature among those which may be regarded as overriding requirements in the public interest capable of justifying a restriction on the <mask> (judgment of 18 May 2017, Lahorgue, C‑99/16, EU:C:2017:391, paragraph 34 and the case-law cited).


The Court also observed that the measures harmonising those roadworthiness testing services were adopted on the basis of the provisions of the TFEU on transport.   Contrary to the view expressed by the Commission in the instant case, that finding seems to me to be decisive for the interpretation of Article 2(2)(d) of Directive 2006/123. That provision expressly refers to the title of the TFEU relating to transport (now Title VI of the TFEU). This is because, under Article 58(1) TFEU, the <mask> in the field of transport is governed by the title of the TFEU relating to transport. Directive 2006/123 cannot therefore regulate the freedom to provide services in that field. By adopting the directives relating to vehicle roadworthiness testing services on the basis of the provisions of Title VI of the TFEU, the EU legislature implicitly included those services in the field of transport within the meaning of both Article 58(1) TFEU and Article 2(2)(d) of Directive 2006/123. That choice of legal basis for the harmonisation measures is therefore decisive for the exclusion of the services at issue from the scope of Directive 2006/123.


Some of those criteria have also been mentioned by the Court in the context of primary law provisions on <mask> and freedom of establishment. See, to that effect, for example, judgments of 3 June 2010, Sporting Exchange (C‑203/08, EU:C:2010:307, paragraph 50 and the case-law cited), and of 13 February 2014, Sokoll-Seebacher (C‑367/12, EU:C:2014:68, paragraph 27), where the Court required prior authorisation schemes to be based on objective, non-discriminatory criteria which are known in advance by the undertakings concerned.


Secondly, as regards the referring court’s uncertainty as to whether the territorial restriction at issue in the main proceedings is compatible with the principles of the <mask> and the opening up to competition as far as possible in the field of public service contracts which underlie Directive 2004/18, which that court believes may give rise to exclusive operating zones for central purchasing bodies, mindful of the reasons set out in the examination of the first and second questions, it must be held that a provision of national law that limits the operating area of central purchasing bodies to the respective territories of the local authorities that created them does not, as such, place any private undertaking at an advantage over its competitors and thereby infringe those principles.


The Court has held that, although Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) and Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of <mask> schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) (‘Regulation No 1408/71’), which were repealed and replaced by Regulation No 492/2011 and by Regulation No 883/2004 respectively, do not have the same scope of application ratione personae, the fact nonetheless remains that, since Regulation No 1612/68 is of general application as regards the free movement of workers, Article 7(2) thereof may apply to social advantages which, at the same time, come specifically within the scope of Regulation No 1408/71 (judgment of 5 May 2011, Commission v Germany, C‑206/10, EU:C:2011:283, paragraph 39; see also, to that effect, judgment of 12 May 1998, Martínez Sala, C‑85/96, EU:C:1998:217, paragraph 27).


67 It should, however, be noted that, in such a case, Article 87(8) of Regulation No 883/2004 in its two versions provides that, where the application of that regulation results in <mask> legislation being established which does not correspond to that applicable under Title II of Regulation No 1408/71, the legislation to which that person was subject under Regulation No 1408/71 is to continue to apply, unless that person requests that the legislation resulting from Regulation No 883/2004 be applied to him or her.


73 Consequently, the answer to the question referred is that Article 14(2)(a)(i) of Regulation No 1408/71, Article 13(1)(a) and Article 87(8) of Regulation No 883/2004 in its two versions, and Article 11(5) of Regulation No 883/2004 as amended in 2012, must be interpreted as meaning that the <mask> legislation applicable to the flight and cabin crew of an airline, established in a Member State, which crew is not covered by E101 certificates and which work for 45 minutes per day in premises intended to be used by staff, known as the ‘crew room’ which that airline has in the territory of another Member State in which that flight and cabin crew reside and which, for the remaining working time, are on board that airline’s aircraft is the legislation of the latter Member State. Costs


Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of <mask> schemes to employed persons, to self-employed person and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as last amended by Regulation (EC) No 592/2008 of the European Parliament and of the Council of 17 June 2008 (OJ 2008 L 177, p. 1) (‘Regulation No 1408/71’), provided, in Article 14c(b), which is in Title II:


According to the third recital of Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of <mask>,  ‘the implementation of the principle of equal treatment in matters of social security does not prejudice the provisions relating to the protection of women on the ground of maternity; … in this respect, Member States may adopt specific provisions for women to remove existing instances of unequal treatment’.


by conferring on the Izba Dyscyplinarna (Disciplinary Chamber) of the Sąd Najwyższy (Supreme Court) (‘the Disciplinary Chamber’), whose independence and impartiality are not guaranteed, jurisdiction to hear and determine cases having a direct impact on the status of judges and trainee judges and the performance of their office, such as, first, applications for authorisation to initiate criminal proceedings against judges and trainee judges or to detain them and, second, cases relating to employment and <mask> law that concern judges of the Sąd Najwyższy (Supreme Court) and cases relating to the compulsory retirement of those judges, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU;


It is true that the aid scheme which is the subject of the contested decision differs from the corresponding schemes in the cases which gave rise to the judgments in Italy and Sardegna Lines v Commission and Italy v Commission. The arrangements at issue in those cases had been implemented through different administrative measures, involving the exercise of a certain margin of discretion, by virtue of which the applicants were granted actual aid,   whereas the aid declared incompatible by the contested decision consisted of exemptions from <mask> contributions applicable to all operators in the sector.


Thus, with respect to Cases C‑624/18 and C‑625/18, the referring court queries whether, given the absence of judges appointed to the Disciplinary Chamber, it can disapply national provisions conferring jurisdiction on the Disciplinary Chamber and take jurisdiction itself, due to the need to ensure effective protection of the litigants’ rights under EU law with respect to age discrimination.   The referring court states that, since there is no court which would be able to provide legal protection in the main proceedings, those provisions, in so far as they exclude the Chamber of Labour Law and <mask>, should be regarded as incompatible with Article 47 of the Charter and Article 9(1) of Directive 2000/78. It also indicates that this question could become irrelevant because, while the main proceedings are taking place, posts were being filled in the newly created chambers of the Supreme Court.


What is examined by the Court is, the outcome of the national rules governing the practical operation of the <mask> system in question. In other words, the Court asks itself the following question: has the national legal framework been designed in such a way that entities operating within the system in question are to be regarded as offering goods or services on a market or, to be more precise, in competition with each other? It is only where the answer is in the negative that the activity in question is classified as non-economic, and the competition rules thus become inapplicable.


In that regard, it must be borne in mind that the severance grant, referred to in Article 12(2) of Annex VIII to the Staff Regulations, is not an end-of-service allowance to which the staff member concerned is automatically entitled at the time when his contract is terminated or expires, but is a financial measure coming under provisions of the Staff Regulations on <mask> (judgment of 2 March 2016, FX v Commission, F‑59/15, EU:F:2016:27, paragraph 32). That provision, which is subject to provisions of EU law which give entitlement to financial benefits, must be interpreted strictly (see judgment of 22 May 2012, AU v Commission, F‑109/10, EU:F:2012:66, paragraph 24 and the case-law cited). Moreover, as is apparent from the very wording of that provision, according to which the provision applies ‘by way of derogation’ from Article 12(1)(b) of that annex, it must be interpreted strictly.


In that regard, it should, admittedly, be borne in mind that that regulation does not establish a common scheme of <mask>, but allows different national social schemes to exist and its sole objective is to ensure the coordination of those schemes in order to guarantee that the right to free movement of persons can be exercised effectively. Therefore, according to the Court’s settled case-law, Member States retain the power to organise their own social security schemes (judgment of 28 June 2018, Crespo Rey, C‑2/17, EU:C:2018:511, paragraph 45 and the case-law cited).


82. The Commission states that: – the object of Article 4 of Regulation No 883/2004 is to ensure, in accordance with Article 45(2) TFEU, equality of treatment in matters of <mask>, without distinction based on nationality, for the workers concerned, by abolishing all discrimination in that regard deriving from the national legislation of the Member States; (63) – Article 7(2) of Regulation No 492/2011 also gives concrete expression to the principle of equal treatment laid down in Article 45(2) TFEU, which protects migrant workers not only against direct discrimination based on nationality, but also all indirect forms of discrimination; and – that provision covers all the social and tax advantages which, whether or not linked to a contract of employment, are generally granted to national workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory. (64)


In that regard, as is clear from the case-law referred to in paragraphs 88 and 89 of the present order, the fact that, owing to the application of the national provisions to which the fourth complaint in the main action relates, examination of cases relating to employment and <mask> law that concern the judges of the Sąd Najwyższy (Supreme Court), those relating to the compulsory retirement of those judges and those relating to authorisation to initiate criminal proceedings against judges or trainee judges or to place them in provisional detention is, pending delivery of the final judgment, within the jurisdiction of a body whose independence might not be guaranteed, namely the Disciplinary Chamber, is liable to undermine, during that period, the independence of the Sąd Najwyższy (Supreme Court) and the ordinary courts.


If there is abuse of successive temporary contracts, can the conversion of the temporary regulated relationship into an indefinite [non-permanent] or permanent relationship be regarded as satisfying the objectives of Directive 1999/70 and the Framework Agreement only if the temporary regulated employee who has been the victim of this misuse enjoys exactly the same working conditions as permanent regulated employees (as regards <mask>, promotion, opportunities to cover vacant posts, training, leave of absence, determination of administrative status, sick leave and other permitted absences, pension rights, termination of employment and participation in selection competitions to fill vacancies and obtain promotion) in accordance with the principles of permanence and security of employment, with all associated rights and obligations, on equal terms with permanent regulated IT specialists?


25. According to that court, in the light of the Court’s case-law, the retirement pensions received by the appellants in the main proceedings come under the concept of ‘pay’ within the meaning of Article 157 TFEU, and they are to be regarded as benefits paid under an ‘occupational <mask> scheme’ within the meaning of Protocol (No 33) concerning Article 157 TFEU and Chapter 2 of Title II of Directive 2006/54.


Although Part II of the contested decision, which is entitled ‘Description’, does not, stricto sensu, form part of the grounds on which the operative part was reached, reference should nevertheless be made to it in order to determine which measures are actually covered by the operative part. In recital 4 of the contested decision, the Commission lists the measures in respect of which ‘the formal investigation procedure was initiated’. Among these, point 2 of recital 4 includes ‘additional measures to assist fish farmers and fishermen throughout France’. The first indent of point 2 refers to the ‘additional measure reducing <mask> contributions for all … fishermen (from 15 April to 15 October 2000) of mainland France and the overseas departments’.   Section II.B of the contested decision sets out the additional measures referred to in point 2 of recital 4. Recital 17 of that decision, set out in point 2 of that section, which is entitled ‘Reduction of social security contributions for fish farmers and fishermen’, states that ‘the Minister … decided (decisions issued in [two] circulars …) to grant all undertakings in the sector a 50% reduction in social security contributions for the period 15 April 2000 to 15 October 2000 for fishermen’.   Recital 18 provides that ‘this reduction applied to employers’ and employees’ contributions’.   Lastly, recital 20 states that ‘the rate of reduction of contributions to the ENIM was 50% for both employees’ and employers’ contributions’. Thereafter, the contested decision makes no further mention of employers’ and employees’ contributions separately, but refers only to ‘social security contributions’.


In the present case, in the first place, as the referring court suggests, it is appropriate to consider not only the persons enrolled in the Special Scheme, but also all the workers who are subject to the Spanish general <mask> scheme, within which those persons enrolled in the Special Scheme are included. Thus, the legislation at issue in the main proceedings applies to all persons enrolled in that General Scheme.


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 <mask> 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).


Consequently, according to the referring court, the question arises as to whether the effects attached to E 101 and A 1 Certificates, issued, in the present case, respectively, under Article 14(1)(a) and (2)(b) of Regulation No 1408/71 and Article 13(1) of Regulation No 883/2004, as regards the determination of the law applicable to the <mask> scheme and to the declarations of the employer to the social protection bodies, extend to the determination of the applicable law as regards the law applicable with respect to employment law and the obligations incumbent on the employer, arising from the application of the employment law of the State in which the workers concerned by those certificates carry out their work, and, in particular, extend to the declarations which must be made by the employer prior to the engagement of those workers.


As regards the second requirement referred to in Article 1(c) of Regulation No 883/2004, it should be noted that the term ‘insured person’ was introduced by that regulation   primarily for the purposes of Chapter 1 of Title III thereof, headed ‘Sickness, maternity and equivalent paternity benefits’,   given that the provisions coordinating sickness require that the person be ‘insured’ in a Member State. Y receives an old-age pension under the AOW and, on that basis, is entitled to the healthcare provided for, inter alia, in Article 24 of that regulation, which, although it does not expressly refer to ‘insured persons’, forms part of Chapter 1 and therefore concerns one of the ‘branches of <mask> covered by Title III’, in accordance with the first sentence of Article 1(c) of that regulation.


As the governments which have submitted observations before the Court have pointed out, it also follows from the case-law that primary EU law cannot guarantee to an insured person that moving to another Member State will be neutral in terms of <mask>. Accordingly, the Court has already acknowledged that the application, possibly as a result of the provisions of Regulation No 1408/71, of national legislation that is less favourable as regards social security benefits may in principle be compatible with the requirements of primary EU law on freedom of movement for persons.


Thus, in the present case, in the light of the Court’s case-law cited in paragraphs 43, 44 and 46 above, the competent institution of the Member State of origin, namely the Republic of Austria, cannot be criticised for refusing to grant the respondent in the main proceedings the rehabilitation allowance. That refusal did not have the effect of excluding from the scope of the legislation at issue a person to whom that legislation is applicable pursuant to Regulation No 883/2004 and, therefore, of leaving him or her without <mask> cover because there is no legislation which is applicable to him or her.


In his view, those activities are exempt from VAT under the national provision transposing Article 132(1)(g) of the VAT Directive, namely Article 44(1)(o) of the Luxembourg Law on VAT, which recognises an exemption from VAT for the supply of services closely linked to <mask> and welfare work carried out by bodies that have been recognised by the competent public authorities as being devoted to social wellbeing.


In the light of the foregoing, the answer to the second question is that Article 4 of Regulation No 883/2004, read together with Article 3(3) and Article 70(2) of that regulation, must be interpreted as precluding legislation of a Member State which provides that a national of another Member State and his or her minor children, all of whom have, in the former Member State, a right of residence based on Article 10 of Regulation No 492/2011, by virtue of those children attending school in that State, and are there covered by a <mask> system within the meaning of Article 3(1) of Regulation No 883/2004, are automatically and in all circumstances excluded from entitlement to special non-contributory cash benefits.


The Court stated that, although it is for the legislation of each Member State to lay down the conditions for creating the right to become affiliated to a <mask> scheme, the Member States are nevertheless required when setting those conditions to abide by the provisions of EU law. In accordance with settled case-law, the conditions establishing the right to affiliate to 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.


As is clear from the wording of that provision, the exemption for which it provides applies to goods and services which are ‘closely linked to welfare and <mask> work’ and ‘supplied by bodies governed by public law or by other bodies recognised by the Member State concerned as being devoted to social wellbeing’ (see, to that effect, judgment of 15 November 2012, Zimmermann, C‑174/11, EU:C:2012:716, paragraph 21).


Primary law cannot guarantee to an insured person that moving to a Member State other than his Member State of origin will be neutral as regards <mask>, in particular as regards sickness benefits or old-age pensions, or even family allowances. It must be borne in mind that the movement of a worker to another Member State may be, depending on the case and due to the disparities between the systems and legislation of the Member States, more or less advantageous for the person concerned in terms of social protection (see, to that effect, judgments of 6 October 2016, Adrien and Others, C‑466/15, EU:C:2016:749, paragraph 27, and of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraph 34).


Article 3(1) of Legislative Decree No 23/2015 provides that, in the event of unjustified collective redundancy, the court is to declare the end of the employment relationship and ‘order the employer to pay compensation, not subject to <mask> contributions, the amount of which shall be equivalent to 2 months’ worth of the last reference salary for the purpose of calculating severance pay in respect of each year of service, such indemnity being in any event not less than 4 months’ remuneration and not more than 24 months’ remuneration.’ Under decreto legge n. 87 – Disposizioni urgenti per la dignità dei lavoratori e delle imprese (Decree-Law No 87 on the establishment of urgent provisions for the dignity of workers and enterprises) of 12 July 2018 (GURI No 161 of 13 July 2018), that range is between 6 and 36 months’ of salary.


15 In those circumstances, the Tribunale amministrativo regionale per l’Emilia Romagna (Regional Administrative Court, Emilia Romagna, Italy) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Do Articles 20, 21, 31, 33 and 34 of the [Charter], [Clauses 2 and 4 of the framework agreement on fixed-term work annexed to Directive 1999/70], [Clause 4 of the framework agreement on part-time work annexed to Directive 97/81], Article 7 of Directive [2003/88] and Articles 1 and 2(2)(a) of Directive [2000/78] preclude the application of national legislation, such as the Italian legislation set out in [Law No 374/1991] and Legislative Decree 92/2016, as consistently interpreted in the case-law, under which giudici di pace (magistrates), as lay judges, in addition to not being treated in the same way as giudici togati [ordinary judges] as regards emoluments and pension and <mask> entitlements, are completely excluded from all forms of pension and social security protection afforded to employees in the public sector? (2) Do EU principles relating to the autonomy and independence of the judiciary, in particular Article 47 of the [Charter], preclude the application of national legislation, such as the Italian legislation under which giudici di pace, as lay judges, in addition to not being treated in the same way as giudici togati [ordinary judges] as regards emoluments and pension and social security entitlements, are completely excluded from all forms of pension and social security protection afforded to employees in the public sector? (3) Does Clause 5 of the [framework agreement on fixed-term work] preclude the application of national legislation, such as the Italian legislation under which the fixed period of service of giudici di pace, as lay judges, originally set at eight years (four plus four years), may be systematically renewed for a further four years without any provision for effective and dissuasive penalties, instead of the employment relationship being converted into one of indefinite duration?’


151. In the light of the foregoing considerations, I propose that the Court should: (1) Declare that, by introducing an adjustment mechanism in relation to the family allowance and the child tax credit for workers whose children reside permanently in another Member State, the Republic of Austria has failed to fulfil its obligations under: – Articles 7 and 67 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of <mask> systems, and – Article 4 of Regulation No 883/2004 and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union; (2) Declare that, by introducing an adjustment mechanism in relation to the Familienbonus Plus (Family Bonus Plus tax credit), the sole earner’s allowance, the single parent’s allowance and the tax credit for maintenance payments for migrant workers whose children reside permanently in another Member State, the Republic of Austria has failed to fulfil its obligations under Article 7(2) of Regulation No 492/2011; (3) Order the Republic of Austria to pay the costs; (4) Order the Czech Republic, the Kingdom of Denmark, the Republic of Croatia, the Republic of Poland, Romania, the Republic of Slovenia and the Slovak Republic, and the Kingdom of Norway and the EFTA Surveillance Authority to bear their own costs.


In support of that action, Team Power Europe submitted that the worker in question in the main proceedings fell within the scope of application of Article 12(1) of Regulation No 883/2004 and fulfilled the conditions to which the issue of an A1 certificate is subject under that provision. As regards, more specifically, the question whether it normally carries out its activities on the Bulgarian territory, Team Power Europe submits that it carries out the substantial activities of selection, recruitment and maintenance of <mask> cover of temporary agency workers on that territory. That activity is not equivalent to the performance of purely internal management activities. Moreover, the fact that its turnover is generated through the performance of transactions made with user undertakings established in a Member State other than that in which it is established does not mean that it carries on its activities outside that Member State.


In that regard, it should be recalled that Regulation No 883/2004, the detailed rules for the application of which are laid down in Regulation No 987/2009, seeks, as is apparent from recitals 1 and 45 thereof and from Article 42 EC, now Article 48 TFEU, on the basis inter alia of which it was adopted, to ensure the free movement of workers within the European Union, while respecting the special characteristics of national <mask> legislation, and to coordinate Member States’ social security systems in order to guarantee that the right to 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 (see, to that effect, judgment of 16 July 2020, AFMB and Others, C‑610/18, EU:C:2020:565, paragraph 63 and the case-law cited).


In this case, as regards the reductions in employees’ contributions granted by the French Republic to fishermen for the period from 15 April to 15 October 2000, it is common ground that those contributions are not borne by the fisheries undertakings, in their capacity as employers, but are payable by the employees, those employees being the actual beneficiaries of those reductions. It is apparent from the order for reference that, under the applicable provisions of national legislation, the content of which has been reproduced in paragraphs 6 and 7 above, those undertakings, in their capacity as employers, are only required to deduct those contributions from the remunerations of their employees on each salary slip with a view to paying them to the competent <mask> bodies.


63. Since the exclusion of certain matters from the material scope of Regulation No 44/2001 gave rise to the risk of irreconcilable decisions, rules had to be adopted to govern those circumstances. That risk in the field of arbitration is expressly acknowledged in the Opinions of Advocate General Darmon in Rich and Advocate General Kokott in Allianz and Generali Assicurazioni Generali (56). By virtue of Article 1(2) thereof many important matters are deemed to fall outside the scope of Regulation No 44/2001, including the status or legal capacity of natural persons, wills and succession, bankruptcy, insolvency and <mask>. I therefore concur with the Club, the German Government, the United Kingdom and the Commission in their submissions to the effect that the rule of law and the internal legal order of Member States would be seriously disturbed were their courts obliged to ignore judgments on all of those matters, delivered within their jurisdiction by other courts of that same Member State, and which may have acquired the force of res judicata, in favour of a – potentially subsequent – judgment emanating from a court of another Member State adjudicating upon the same issue. Absent clear provisions to the contrary, it is reasonable to conclude the EU legislature did not intend to enact provisions that would have such a disturbing impact on the rule of law in the Member States.


12. Article 10(1) of the LGSS states that special schemes are to be established for occupational activities which, by reason of their nature, special conditions of time and place in which they are carried out, or of the type of production process, require the establishment of such schemes in order to ensure the proper application of <mask> benefits. Article 10(2)(a) of the LGSS provides that, among others, self-employed workers are to be enrolled in special schemes.


107. In any case, the decision on the location of the seat of an agency can hardly be considered a purely political decision, at least if the criteria stated in both of the present cases are to be given any credence. The respective selection rules have laid down several criteria that are all more technical in nature, namely the date when the agency could be set up on site; the accessibility of the location; the existence of adequate education facilities for the children of agency staff and appropriate access to the labour market; and the <mask> and medical care for children and spouses. (64) Geographical balance appears to be the only criterion that is predominantly political in nature.


74 In those circumstances, the Court has found that factors such as whether the services are in the public interest, and the fact that the services are covered by the <mask> scheme or are supplied under contracts concluded with public authorities of a Member State, at prices fixed by those contracts and whose costs are partially borne by the social security institutions of that Member State, are factors that may be taken into account (see, to that effect, judgments of 10 June 2010, CopyGene, C‑262/08, EU:C:2010:328, paragraphs 69 and 70, and of 5 March 2020, Idealmed III, C‑211/18, EU:C:2020:168, paragraph 32).


The obligation to consult the Staff Committee is limited to the amendment of acts of general application (order of 9 November 2017, Bowles v ECB, T‑564/16, not published, EU:T:2017:816, paragraph 48). Article 48 of the Conditions of Employment provides that the Staff Committee ‘shall represent the general interests of all members of staff in relation to contracts of employment; staff regulations and remuneration; employment, working, health and safety conditions at the ECB, <mask> cover and pension schemes’. Moreover, according to Article 49 of the Conditions of Employment, ‘the Staff Committee shall be consulted prior to changes in these Conditions of Employment, the Staff Rules and related matters as defined under paragraph 48 above’.


67 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (First Chamber) hereby rules: 1. Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, Clause 4 of the framework agreement on part-time work, concluded on 6 June 1997 and which is annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 98/23/EC of 7 April 1998, and Clause 4 of the framework agreement on fixed-term work, concluded on 18 March 1999 and which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP must be interpreted as precluding national legislation which does not provide for an entitlement for magistrates to 30 days’ paid annual leave or to a <mask> and pension scheme deriving from the employment relationship, such as that provided for ordinary judges, if that magistrate comes within the definition of ‘part-time worker’ within the meaning of the framework agreement on part-time work and/or ‘fixed-term worker’ within the meaning of the framework agreement on fixed-term work and is in a comparable situation to that of an ordinary judge.


As recital 26 of Directive 2011/98 states, that European Union law does not detract from the power of the Member States to organise their <mask> systems. In the absence of harmonisation at European Union level, it is for the legislation of each Member State to determine the conditions for the grant of social security benefits. The fact nevertheless remains that, when exercising that power, Member States must comply with European Union law (see, to that effect, judgment 5 October 2010, Elchinov, C‑173/09, EU:C:2010:581, paragraph 40).


It follows that childbirth allowance is a family benefit within the meaning of Article 3(1)(j) of Regulation No 883/2004. It is of little importance, in that regard, whether that allowance has a dual function, namely, as the referring court states, both that of a contribution to the costs resulting from the birth or adoption of a child and that of a premium intended to encourage the birth rate, since one of those functions relates to the branch of <mask> referred to in that provision (see, to that effect, judgments of 16 July 1992, Hughes, C‑78/91, EU:C:1992:331, paragraphs 19 and 20, and of 15 March 2001, Offermanns, C‑85/99, EU:C:2001:166, paragraph 45).


Article 7b of the Arbeitsvertragsrechts-Anpassungsgesetz (Law adapting employment contract law),   in the version applicable to the dispute in the main proceedings (‘the AVRAG’), deals with the rights of employees against foreign employers based in a Member State of the European Union or the European Economic Area. In essence, it provides that a worker who is posted to work in Austria by an employer who has his registered office in a Member State of the European Union or of the European Economic Area other than Austria is automatically to have the right, during the period of posting and without prejudice to the laws and regulations applicable to the employment relationship, to at least the statutory minimum remuneration, fixed by regulation or by a collective agreement, which, in the workplace, must be paid to comparable workers by comparable employers. Moreover, a person having his registered office in a Member State of the European Union or of the European Economic Area other than Austria is to be considered to be an employer in respect of workers placed at his disposal who are posted to Austria for the purpose of performing work. Employers are required to declare, at least one week before the start of the work in question, the use of workers who have been posted to work in Austria. Such a declaration is to be made separately for each secondment and is to contain the following information: (i) name, address and professional licence or purpose of the employer’s business; (ii) the overall period covered by the secondment, as well as the beginning and foreseeable duration of employment of the different workers in Austria, the normal working time and place conditions agreed for the different workers; (iii) the amount of remuneration due to the individual workers under Austrian legal provisions and the beginning of the employment relationship with the employer; (iv) the place (exact address) of employment in Austria (also other places of intervention in Austria); and (v) the type of activity and use of the worker, taking into account the relevant Austrian collective contract. Where there is no obligation for posted workers to join <mask> in Austria, employers are required to keep available documents relating to the workers’ declaration to social security (social security document E 101 pursuant to Regulation (EEC) No 1408/71,   social security document A1 in accordance with Regulation (EC) No 883/04),   as well as a copy of the declaration of posting at the place of performance of the work (or intervention) on the national territory or to make them directly accessible in electronic form to the services of the authority responsible for collecting the contributions.


3 Regulation No 1408/71 was repealed and replaced as from 1 May 2010. Since the disputes in the main proceedings concern the failure to pay <mask> contributions between June 2006 and February 2010 and insurance premiums between January 2008 and January 2013, they are capable of falling within the scope of Regulation No 1408/71. That regulation included Title II, headed ‘Determination of the legislation applicable’, within which Articles 13 to 17 are found.


The action brought by Mr Bocero Torrico against the INSS and the General <mask> Fund before the Juzgado de lo Social No 2 de Ourense (Labour Court No 2, Ourense, Spain) and that brought by Mr Bode against those bodies before the Juzgado de lo Social No 2 of A Coruña (Labour Court No 2, A Coruña, Spain) were dismissed. Those courts considered that the amount of the ‘pension to be received’, within the meaning of Article 208(1)(c) of the LGSS, which must be higher than the minimum pension which would be due to the person concerned when he or she reaches the age of 65 in order to be eligible for an early retirement pension, is the amount of the actual pension payable by the Kingdom of Spain. They relied on the purpose of the Spanish legislation, which is to avoid supplementing, up to the statutory minimum, retirement pensions for persons who have not yet reached the statutory retirement age, thus keeping them in the employment market.


As regards the national legislation at issue in the main proceedings, it is apparent from the file available to the Court that the objectives it seeks to attain are different from those pursued by Directive 2015/849. It appears that the national legislation seeks to combat tax evasion and avoidance by requiring payments in an amount equal to or greater than BGN 10000 to be made not in cash, but by transfer or deposit into a payment account, so as to ensure that financial transactions are traceable. According to the Bulgarian Government, the ZOPB is thus intended to restrict the informal sector of the Bulgarian economy and prevent payments or revenue and expenditure being concealed with a view to avoiding payment of the tax provided for by the legislation in force as well as payment of mandatory <mask> contributions.


Judgment of 19 September 2013 (C‑140/12, EU:C:2013:565). See, in particular, paragraphs 44 and 47 of that judgment, where the Court established a link between the right to <mask> benefits under Regulation No 883/2004 and the legality of residence in the host Member State, which may be subject to satisfaction of the conditions laid down in Article 7(1)(b) of Directive 2004/38.


In the light of all the foregoing, the answer to the question referred is that Article 11(1)(d) of Directive 2003/109 must be interpreted as precluding legislation of a Member State under which, for the purposes of determining entitlement to a <mask> benefit, the family members of a long-term resident, within the meaning of Article 2(b) thereof, who do not reside in the territory of that Member State, but in a third country are not taken into account, whereas the family members of a national of that Member State who reside in a third country are taken into account, where that Member State has not expressed its intention of relying on the derogation to equal treatment permitted by Article 11(2) of that directive by transposing it into national law.


It observes, in that regard, that the childbirth allowance, owing in particular to the significant changes which it has undergone in recent years, has novel aspects compared with family benefits already examined by the Court. In that regard, it observes that, although that allowance is linked to objective criteria defined by law and falls within the category of <mask> benefits, it nevertheless has a number of functions which might make its classification as a family benefit uncertain.


With regard to the email or ‘electronic’ address, see inter alia Article 88(2) 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 <mask> systems (OJ 2009 L 284, p. 1); Article 14(1) of Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (OJ 2013 L 165, p. 1); Article 54(2) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), and Article 45(2)(a) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ 2015 L 337, p. 35).


That law may define the scope of the sickness benefits covered by the Member State and the conditions that need to be satisfied in order to claim those benefits. As I stated in point 53 of this Opinion, the Member States are competent to organise their <mask> systems and, accordingly, to define the extent of the benefits offered and the conditions governing entitlement to those benefits. It follows that a move by a Union citizen may, depending on the case, be more or less advantageous or disadvantageous for him, depending on the combination of national rules applicable pursuant to Regulation No 883/2004.


Thus, it appears, first, that the maternity allowance is automatically granted to mothers meeting certain legally defined, objective criteria, without any individual and discretionary assessment of the personal needs of the person concerned. In particular, the maternity allowance is granted or refused taking into account, in addition to the absence of maternity benefit in connection with employment, self-employment or professional practice, the resources of the household of which the mother is a member on the basis of an objective and legally defined criterion, namely the economic situation indicator, without the competent authority’s being able to take account of other personal circumstances. Secondly, it relates to the branch of <mask> referred to in Article 3(1)(b) of Regulation No 883/2004.


For the purpose of the answer to Question 1(a), is it significant that, for a resident of a State of residence which, under Article 13 of Regulation No 1408/71 is not the competent State, there is no obligation to pay contributions under the <mask> schemes of that State of residence? For the periods during which that resident works in another Member State, he comes exclusively under the social security system of the State of employment under [Article 13], and in such a case Netherlands national legislation does not provide for an obligation to pay contributions either.


31. In that regard, I must stress that EU law distinguishes between occupational pension schemes, which come under the concept of ‘pay’ in Article 157(1) and (2) TFEU, (17) and statutory <mask> benefit schemes, which do not. (18) It is settled case-law that such a contributory disability allowance does not come under the notion of ‘pay’ within the meaning of Article 157(1) and (2) TFEU or of Directive 2006/54. (19)


By application lodged at the Court Registry on 22 July 2020, the European Commission asks the Court to declare that, by adjusting the amount of family benefits, as well as social and tax advantages, for the children of persons entitled to such benefits in Austria to reflect the cost of living in the Member State in which the child resides, the Republic of Austria has failed to fulfil its obligations under, first, Articles 4, 7 and 67 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of <mask> systems (OJ 2004 L 166, p. 1), and, second, Article 7 of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ 2011 L 141, p. 1).


It should also be borne in mind that the Court has already held, in the case of a nurse running her own business as a sole trader and relying on the exemption provided for in Article 132(1)(g) of the VAT Directive, that a Member State may, in principle, require, without exceeding the discretion granted to it in that context, that the medical and pharmaceutical costs of such a taxable person be borne wholly or in part by the statutory <mask> and welfare bodies in at least two thirds of cases, in order to ensure that that service provider may be recognised as being devoted to social wellbeing (see, by analogy, judgment of 15 November 2012, Zimmermann, C‑174/11, EU:C:2012:716, paragraphs 10 and 35 to 37).


8. Article 5 of Regulation No 883/2004, entitled ‘Equal treatment of benefits, income, facts or events’, is worded as follows: ‘Unless otherwise provided for by this Regulation and in the light of the special implementing provisions laid down, the following shall apply: (a) where, under the legislation of the competent Member State, the receipt of <mask> benefits and other income has certain legal effects, the relevant provisions of that legislation shall also apply to the receipt of equivalent benefits acquired under the legislation of another Member State or to income acquired in another Member State; (b) where, under the legislation of the competent Member State, legal effects are attributed to the occurrence of certain facts or events, that Member State shall take account of like facts or events occurring in any Member State as though they had taken place in its own territory.’


As the applicant in the main proceedings worked in the Netherlands at the time she had her accident, she is covered by Netherlands <mask> and, since the accident, has received an allowance under the Wet arbeidsongeschiktheid (WAO) (Law on insurance against incapacity for work) (‘the WAO allowance’) and an allowance on the basis of the Algemeen Burgerlijk Pensioenfond (ABP) (pension fund for civil servants including old-age, survivors’ and invalidity pensions) (‘the ABP allowance’).


Those certificates correspond to a standard form issued, in accordance, as the case may be, with Title III of Regulation No 574/72 or Title II of Regulation No 987/2009, by the institution designated by the competent authority of the Member State whose <mask> legislation is applicable, in order to ‘attest’, in accordance, inter alia, with Article 11(1)(a), Article 12a(2)(a) and (4)(a) of Regulation No 574/72 and of Article 19(2) of Regulation No 987/2009, that workers finding themselves in one of the situations referred to in certain provisions of Title II of Regulations No 1408/71 and No 987/2009 are subject to the legislation of that Member State (see, to that effect, judgment of 9 September 2015, X and van Dijk, C‑72/14 and C-197/14, EU:C:2015:564, paragraph 38).


It is true that, according to the settled case-law of the Court, all the provisions of the TFEU on freedom of movement of persons are intended to facilitate the pursuit by Union nationals of occupational activities of all kinds throughout the EU, and preclude measures which might place Union nationals at a disadvantage when they wish to pursue an activity in the territory of a Member State other than their Member State of origin. However, primary EU law cannot guarantee to a worker that moving to a Member State other than his Member State of origin will be neutral in terms of <mask>, since, given the disparities between the Member States’ social security schemes and legislation, such a move may be more or less advantageous for the person concerned in that regard (see, to that effect, judgment of 18 July 2017, Erzberger, C‑566/15, EU:C:2017:562, paragraphs 33 and 34 and the case-law cited).


By this reference for a preliminary ruling, the Juzgado de lo Contencioso-Administrativo n.o 2 de Vigo (Administrative Court No 2, Vigo, Spain) has put questions to the Court concerning, inter alia, the interpretation of Article 4(1) of Directive 79/7/EEC,   in the context of a national provision under which the benefits granted by a statutory <mask> scheme for an entire category of workers excludes unemployment benefits. In the present case, it is the activity of domestic workers, a group overwhelmingly consisting of women, which is central to the referring court’s questions.


It should be further noted that, as identified in the Commission’s recent evaluation of the EU legal migration directives,   there are different rules and specific restrictions on equal treatment contained in each directive which largely reflect differentiation between the categories of third-country nationals covered and their lengths of stay, along with the legislative history of the directive concerned. Thus, it seems to me that while the overall treatment granted to long-term residents may generally be regarded as privileged as compared to single permit holders, as illustrated by the fact that there is no specific derogation for family benefits and equal treatment extends to <mask>, social assistance and social protection as defined by national law under Article 11 of Directive 2003/109, the specific application of equal treatment regarding social security for long-term residents as compared to single permit holders depends on the particular situation.


It was not possible to dispel those doubts during the formal investigation procedure. After a thorough examination of the market situation for fisheries products during the first quarter of 2000,   the Commission concluded, in recital 98 of the contested decision, that, on the basis of the information at its disposal, ‘the nationwide reduction of <mask> contributions granted to fishermen for the period 15 April to 15 October [could not] be considered compatible with the common market under Article 87(2)(b) [EC]’. In recital 99 of that decision, it held that ‘as operating aid granted to all fishing businesses without any obligation on the part of the recipients, this aid [was] incompatible with the common market by virtue of the third indent of the fourth paragraph of section 1.2 of the 1997 Guidelines’.


Article 20(2) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of <mask> systems in conjunction with Article 10(1) and Article 21(1) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that a Member State may refuse to grant the authorisation referred to in Article 20(1) of that regulation where hospital care, the medical effectiveness of which is not contested, is available in the person’s Member State of affiliation, even though the method of treatment used is contrary to that person’s religious beliefs, where the refusal is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary. In the absence of organisational or structural requirements relating to the orderly and balanced provision of effective healthcare by the Member State of affiliation, that Member State may refuse pursuant to the second condition provided by Article 20(2) of Regulation No 883/2004 to take religious beliefs into account, if it would potentially result in an appreciable increase in costs for the Member State of affiliation to the detriment of the provision of effective healthcare to others. This is a matter of fact which must be assessed by the referring court.


In addition, as seen in point 11 of this Opinion, Article 9(12) of Legislative Decree No 286/1998 is limited to making access to social assistance and <mask> benefits for a long-term resident conditional on his actual residence in the national territory and ‘unless otherwise provided’. That provision does not refer to the place of residence of that resident’s family members, and the wording ‘unless otherwise provided’ cannot, in my view, be regarded as a clear expression of a Member State’s intention to derogate, given that that wording does not specify the provisions being derogated from. In those circumstances, it should be considered that Italy cannot rely on Article 11(2) of Directive 2003/109 in the circumstances of the present case.


Article 3(1)(d) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of <mask> systems must be interpreted as meaning that an additional benefit paid to certain high-level sportspersons who have represented a Member State or its legal predecessors in international sporting competitions is not covered by the ‘old-age benefit’ referred to in that provision and, consequently, falls outside the scope of that regulation.


It follows that the <mask> legislation applicable to a situation such as that in the main proceedings is that of the State of the transport undertaking which has recruited the person concerned, to which the person concerned is de facto fully available for an indefinite period, which exercises effective control over the person concerned and which actually bears the wage costs, that is to say the Netherlands in the present case.


In the present case, it bears emphasis that the request for a preliminary ruling has been made by an employment and <mask> court hearing an appeal against the CPAS decisions withdrawing social assistance from the applicant in the main proceedings with effect from 11 April 2017, the date on which his daughter came of age. There is nothing in the file submitted to the Court to suggest that the regularisation of the residence of LM and his daughter took effect prior to 17 May 2019, when residence permits were issued to them, or that there was, at the same time, a retroactive recognition of LM’s entitlement to social security benefits as from 11 April 2017, with a corresponding payment of the arrears accrued in the intervening period.


72. Accordingly, in the light of the foregoing considerations, I propose that the Court should answer the questions referred by the Juzgado de lo Social nº 26 de Barcelona (Social Court No 26, Barcelona, Spain) as follows: Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of <mask> must be interpreted as precluding a national rule that, in effect, puts a significantly greater proportion of women than men at a disadvantage by allowing the award of two or more incapacity benefits obtained under different social security schemes due to two or more incapacities, whilst prohibiting the receipt of two or more such benefits under a single scheme, even where the eligibility requirements for all those benefits are satisfied, which is for the referring court to ascertain.


Article 4(1) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of <mask> must be interpreted as meaning that it precludes a national provision which excludes unemployment benefits from the benefits granted to domestic workers by a statutory social security scheme where it is found that those workers are almost exclusively women.


The referring court is of the view that it is impossible, on the basis of the judgment of 23 April 2015, Franzen and Others (C‑382/13, EU:C:2015:261), to determine, without having a reasonable doubt, whether in circumstances such as those at issue in the main proceedings, EU law not only allows, but actually requires the disapplication of a national law providing for the exclusion of a resident of the Netherlands from the social insurance scheme of that Member State if that person works in another Member State and is subject to the <mask> legislation of that other Member State on the basis of Article 13 of Regulation No 1408/71.


In that regard, it should be noted, first, that Article 2(1) of Regulation No 883/2004 provides that that regulation is to apply, inter alia, to ‘nationals of a Member State … who are or have been subject to the legislation of one or more Member States’ and, secondly, that Article 1(c) of that regulation provides that ‘“insured person”, in relation to the <mask> branches covered by Title III, [  ] Chapters 1 and 3, means any person satisfying the conditions required under the legislation of the Member State competent under Title II to have the right to benefits, taking into account the provisions of th[at] Regulation’.


According to the settled case-law of the Court, the distinction between benefits coming within the scope of Regulation No 883/2004 and those which fall outside that scope is based essentially on the constituent elements of each benefit, in particular its purpose and the conditions for its grant, and not on whether it is classified as a <mask> benefit by national legislation (judgments of 21 June 2017, Martinez Silva, C‑449/16, EU:C:2017:485, paragraph 20 and the case-law cited, and of 2 April 2020, Caisse pour l’avenir des enfants (Child of the spouse of a frontier worker), C‑802/18, EU:C:2020:269, paragraph 35 and the case-law cited).


As regards the effects of the infringement of the limitation period as far as concerns the first two parts referred to in paragraph 97 above on the lawfulness of the dismissal decision, it should be observed that each of the three parts of the case concerned failures of a pecuniary nature consisting, at the very least, in a prolonged lack of care on the part of the applicant as regards the minimum requirements for establishing sufficient documentary evidence of the provision of services and of transactions the cost of which was borne, in whole or in part, by the <mask> schemes put into place by the ECB for the benefit of its staff. It should also be noted that the ECB, inter alia, considered that those failures came within its powers in financial matters and the ECB inferred therefrom that the applicant had not only breached his duty of loyalty, but also that he had not respected their common values and that he had thus risked the reputation of the Bank.


I would observe, by way of preliminary point, that, according to the decision to refer, at the time when A left his Member State of origin for an unlimited period, he was no longer working there and was no longer covered by its <mask> system. Although he sought employment in the host Member State, he did not enter that State mainly for that purpose, but did so in order to join his wife and children. It was therefore not as a worker that he relied on his right to reside in the host Member State. Furthermore, although he may also have come within Article 14(4)(b) of Directive 2004/38, on Union citizens who remain in the host Member State for more than three months after entering that State in order to seek employment, it is apparent from that decision to refer that it was as an economically inactive person that A was residing in the host Member State at the time of his application to be affiliated to social security and that his right of residence was based on Article 7(1)(b) and Article 14(2) of that directive.


54 Having regard to the foregoing considerations, the answer to the first question is that Article 7 of Directive 2003/88, Clause 4 of the framework agreement on part-time work and Clause 4 of the framework agreement on fixed-term work must be interpreted as precluding national legislation which does not provide for an entitlement for magistrates to 30 days’ paid annual leave or to a <mask> and pension scheme deriving from the employment relationship, such as that provided for ordinary judges, if that magistrate comes within the definition of ‘part-time worker’ within the meaning of the framework agreement on part-time work and/or ‘fixed-term worker’ within the meaning of the framework agreement on fixed-term work and is in a comparable situation to that of an ordinary judge. The third question


73. Third, the same court observes that, although the national legislature made an important intervention relating to the adjustment of civil servants’ pensions for the year 2018, it refrained from adopting such a measure with a ‘social component’ in respect of civil servants in active employment, in respect of whom a reducing scale was not applied when pay was adjusted for the year 2018. Nevertheless, it appears to me that, in order to determine whether the means chosen to serve a legitimate social-policy aim are implemented consistently and systematically, reference must be made to the category of persons concerned, that is to say retired civil servants. In that regard, it is for the referring court to examine whether, as the Austrian Government claims, the legislation at issue applies in the same way to all recipients of a State pension. If it does not, that legislation appears to be inconsistent in that connection. If it does, the difference between civil servants’ retirement pensions and the salaries of civil servants in active employment does not, in my opinion, fall within the scope of Article 5 of Directive 2006/54, which seeks merely to prohibit all direct or indirect discrimination on grounds of sex in occupational <mask> schemes.


See, to that effect, judgment of 10 June 2010, CopyGene (C‑262/08, EU:C:2010:328, paragraph 71): ‘[the fact the national authorities are entitled to take into consideration that an establishment’s activities received no support from and are not covered by the public <mask> scheme does] not mean that the exemption … must be systematically excluded when the services supplied are not reimbursed by the social security authorities.’


(Reference for a preliminary ruling — <mask> — Migrant workers — Regulation (EC) No 883/2004 — Unemployment benefits — Calculation — Failure to take account of the final salary received in the Member State of residence — Reference period not of sufficient duration — Salary received following the employment relationship coming to an end — Person having previously been active as an employed person in Switzerland)


15 Article 129 of the DOPK states: ‘(1) Set off or reimbursement may be effected on the initiative of the tax authorities or on the written request of the person concerned. A request for set off or reimbursement shall be considered if it is submitted within five years of 1 January of the year in which the event giving rise to the reimbursement occurred, unless the law provides otherwise. … (3) (supplemented in DV No 108 of 2007) Notice of set off or reimbursement must be issued within 30 days of receipt of the request, if no review is ordered before expiry of that period. Liabilities comprised of tax or compulsory <mask> contributions are open to review even in cases of set off or reimbursement, including cases where a notice under the first sentence is the subject of an action or appeal. If the notice is the subject of an action before the courts, a notice of adjustment may be issued at any time until the judicial decision takes effect. … (7) An appeal shall lie in respect of a notice of set off or reimbursement in accordance with the rules governing appeals against notices of adjustment.’


The referring court also states that, in its case-law, the Corte suprema di cassazione (Supreme Court of Cassation) has already had occasion to highlight the dual nature of the family unit allowance. On one hand, as it is linked to the income of all types of family unit and intended to guarantee a sufficient income to low-income families, it is a <mask> benefit. In accordance with the general rules of the social security scheme which includes that allowance, the protection of the families of workers is implemented by the payment of a supplement to remuneration for work performed. Financed by contributions paid by all employers, together with a supplement paid by the State, the family unit allowance is paid by the employer who makes the advance payment and is authorised to offset that amount against the social security contributions due. On the other hand, that allowance is a social assistance measure, as the income taken into account is increased, where necessary, to protect persons suffering from physical or mental infirmity or disability or minors with persistent difficulties in performing their duties and functions appropriate to their age. In any event, according to the referring court, it is a measure which falls within the scope of Article 11(1)(d) of Directive 2003/109.


In particular, this interpretation is supported by the fact that, as mentioned in point 46 of this Opinion, Article 12(2)(b) of Directive 2011/98 does not refer to the residence of the family members of third-country workers among the derogations which Member States may establish on the right to equal treatment with regard to <mask> and in particular family benefits. Moreover, Article 12(2)(c) of that directive, which provides for a derogation to equal treatment with regard to tax benefits, refers to the residence of the family members of the third-country worker in the host Member State. It would therefore be illogical if family members residing abroad were considered to be excluded from the equal treatment provisions under Article 12 of Directive 2011/98.


It should be noted that it is not inconceivable that the reductions in question concerned, at least in part, sums which had already been deducted by the undertakings from their employees’ salaries at the full rate and which had yet to be paid to the competent authorities (I would point out that the circulars which provided for those measures were dated 15 April and 13 July 2000 and concerned the period from 15 April to 15 October 2000). In that case, the measure would have covered – at least in formal terms – the debt owed by the undertakings to <mask> institutions and not the employees’ contributions themselves. However, even if an obligation on the part of the employer to pass on the reduction to employees’ salaries retroactively could be excluded from such an arrangement, neither the French Republic nor the Commission claimed that the measures in question were of such a nature. In any event, that is not apparent from the contested decision.


7. Recitals 1 and 6 of Directive 2014/24 state: ‘(1) The award of public contracts by or on behalf of Member States’ authorities has to comply with the principles of the Treaty on the Functioning of the European Union (TFEU), and in particular the free movement of goods, freedom of establishment and the freedom to provide services, as well as the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency. However, for public contracts above a certain value, provisions should be drawn up coordinating national procurement procedures so as to ensure that those principles are given practical effect and public procurement is opened up to competition. … (6) It is also appropriate to recall that this Directive should not affect the <mask> legislation of the Member States. Nor should it deal with the liberalisation of services of general economic interest, reserved to public or private entities, or with the privatisation of public entities providing services. It should equally be recalled that Member States are free to organise the provision of compulsory social services or of other services such as postal services either as services of general economic interest or as non-economic services of general interest or as a mixture thereof. It is appropriate to clarify that non-economic services of general interest should not fall within the scope of this Directive.’


Moreover, the central place of the principle of aggregation in the calculation of <mask> benefits is reflected in Article 48(a) TFEU (point 5 above). Indeed the Court has noted that ‘Article 48 TFEU … provides that the European Parliament and the Council of the European Union are to adopt “such measures in the field of social security as are necessary to provide freedom of movement for workers” inter alia by making arrangements to secure for migrant workers the “aggregation … of all periods taken into account under the laws of the several countries”. Such an aggregation system of periods was introduced by Regulation No 1408/71 then by Regulation No 883/2004’.   The importance of aggregation is also reflected in recital 14 of Regulation No 883/2004 (point 6 above), which refers specifically to the importance of aggregation to ‘calculating the amount of benefits’. To this can be added recital 2 of Decision No H6. As noted above in point 10, aggregation is stated therein to be relevant to ‘increasing the benefit’.


The combined provisions of Article 20 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of <mask> systems and Article 26 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 No 883/2004, relating to scheduled treatment, read in the light of Article 56 TFEU, must be interpreted as meaning that:


“occupational <mask> schemes”: schemes not governed by [Directive 79/7] whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.’


The present request for a preliminary ruling concerns in essence the interpretation of Article 60(1), second sentence, of Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of <mask> systems.   The Court is also invited to indicate which ‘income’ has to be taken into account when calculating the amount of the family benefit sought.


The referring court states that Article 60(1) of the LGSS entitles women who have had at least two biological or adopted children to receive the pension supplement at issue, on account of their demographic contribution to <mask>, whereas men in an identical situation do not have that entitlement. That court expresses doubts about whether such a provision is compatible with EU law.


The appellant in the main proceedings, CG, is a Netherlands and Croatian national, a single mother of two very young children,   who has declared that she arrived in Northern Ireland in 2018.   She has never carried out an economic activity in the United Kingdom and lived with her partner, a Union citizen, of Netherlands nationality and the father of her children, until she moved to a women’s refuge following allegations of domestic violence.   CG has no resources and has no access to any <mask> benefits at all to provide for her and her two children’s needs.


Article 23(1)(e) of that regulation, which reproduces and amends the provision formerly set out in Article 13(1)(e) of that directive, states that Union or Member State law may restrict by way of a legislative measure the scope of the obligations and rights provided for in, inter alia, Articles 13 to 15 thereof when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard certain important objectives of general public interest, in particular an important economic or financial interest of the Union or of a Member State, including monetary, budgetary and taxation matters, public health and <mask>.


‘Should Directive 2006/54, read in conjunction with Articles 8 and 157 TFEU, the general EU law principles of equal treatment and of the prohibition of discrimination, and Articles 20, 21(1) and 23 of the Charter of Fundamental Rights of the European Union, be interpreted as meaning that the provisions of Article 46 [CCN], which grant female employees of <mask> organisations raising children themselves three months leave with half pay, one and a half months leave with full pay or unpaid leave of up to a year after maternity leave, are excluded from the scope of application of that directive?’


In the light of the information provided by the referring court following the Court’s request for clarification, by its first question, the referring court must be regarded as asking whether Article 87(8) of Regulation No 883/2004 is to be interpreted as meaning that a person who, on the date of application of that regulation, was engaged in paid employment in one Member State and self-employed in another Member State, and therefore subject at the same time to the <mask> legislation applicable in those two Member States, in accordance with Title II of Regulation No 1408/71, must, in order to be subject to the legislation applicable pursuant to Regulation No 883/2004, submit an express request to that effect.


Moreover, it is apparent from Articles 1(c) and 5(c) of Directive 2006/54 that the directive relates to occupational <mask> schemes. The Court has previously held that schemes of pensions paid to a worker by reason of his/her employment relationship with the public employer also fall within the material scope of Article 5 of Directive 2006/54 (see, to that effect, judgment of 5 November 2019, Commission v Poland (Independence of the ordinary courts), C‑192/18, EU:C:2019:924, paragraphs 72 and 73).


2. If the treatment is recognised and covered by <mask>, the NEAK shall examine, within an additional deadline of 15 days, whether the patient can receive treatment within a time limit that is medically justifiable, as set out in the application, by a publicly funded healthcare provider. If need be, the NEAK shall consult an expert in order to verify the information provided in the application.


I thus consider that to systematically deny a person such as A the possibility of being affiliated to the <mask> of the host Member State on the ground that, at the time of requesting affiliation, he does not have worker status, is not supported by the wording of Directive 2004/38 nor by that of Regulation No 883/2004 and does not meet the objective of freedom of movement guaranteed by those two instruments of secondary law or that of the authors of the Treaties, set out, in particular, in Article 21 TFEU.


As regards the subjective element, I note that the Court has held that, in order to establish the existence of the second element, which relates to the intention of operators, account may be taken, in particular, of the purely artificial nature of the transactions concerned.   The subjective element seems to me to be apparent, in this case, from the clear intention of AFMB and its contractual partners to circumvent Netherlands <mask> legislation for the purpose of optimising their economic activities.   As stated above,   most of the drivers in question were employees settled in the Netherlands before being employed by AFMB. The formal engagement by AFMB appears to have had the aim of excluding them from the application of Netherlands legislation, which would normally have been applicable, on the basis of Article 13(1)(b)(i) of the Regulation No 883/2004.