(April 23, 2015) 

On April 23, 2015 the European Court of Justice (CJEU) ruled in Case C‑382/13 C.E. Franzen, H.D. Giesen and F. van den Berg versus Raad van bestuur van de Sociale verzekeringsbank (ECLI:EU:C:2015:261).

 

1.   

1. Must Article 13(2), introductory sentence and subparagraph (a), of Regulation No 1408/71 be interpreted as meaning that a resident of a Member State who comes within the scope of that regulation and who for not more than two or three days per month is employed in the territory of another Member State on the basis of an on-call contract, is on that ground subject there to the social security legislation of the State of employment?
2. If Question 1(a) is answered in the affirmative, does the subjection to the social security legislation of the State of employment apply both on the days on which the employment activities are performed and on the days on which those activities are not performed and, if so, how long does that subjection continue after the final employment activities have in fact been carried out?

 

2.     Does Article 13(2), introductory sentence and subparagraph (a), in conjunction with Article 13(1), of Regulation No 1408/71 preclude a migrant worker to whom the social security legislation of the State of employment applies from being regarded, by virtue of national legislation of the State of residence, as an insured person under the AOW in the latter State?

 

3.       

1. Must EU law, in particular the provisions concerning freedom of movement for workers and/or citizens of the Union, be interpreted as precluding, in the circumstances of the present cases, the application of a national provision such as Article 6a of the AOW and/or the AKW, under which a migrant worker residing in the Netherlands is excluded there from insurance cover under the AOW and/or the AKW on the ground that he is subject exclusively to German social security legislation, even in circumstances where that worker as a “geringfügig Beschäftigte” (person in minor employment) is excluded in Germany from insurance cover for the purposes of “Altersrente” (old-age pension) and is not entitled to “Kindergeld” (child benefits)?
2. Is it significant, for the purposes of the answer to Question 3(a), that it was possible to take out voluntary insurance under the AOW or to request the SVB to conclude an agreement as referred to in Article 17 of Regulation No 1408/71?

The dispute in the main proceedings and the questions referred for a preliminary ruling

 

·       The applicants in the main proceedings are all Netherlands nationals and are resident in the Netherlands.

 

 The case of Ms Franzen

 

·       Ms Franzen, who was born in 1965, received child benefits in the Netherlands under the AKW for her daughter who was born in 1995 and whom she was bringing up alone. In November 2002, she informed the SVB that, since 1 January 2001, she had been working in Germany for 20 hours per week as a hairdresser. Since Ms Franzen’s earnings from that employment were very low, she was not covered by any statutory social insurance scheme, apart from the German statutory scheme against accidents (Unfallversicherung), and was not entitled to cover under any other German social security scheme. By decision of 25 February 2003, the SVB withdrew her entitlement to child benefits from 1 October 2002.

 

·       The SVB states in its observations before the Court that, by letter dated 21 September 2003, Ms Franzen applied under Article 24 of the 1999 BUB for her exclusion from social insurance cover to be removed. By decision of 15 March 2004, the SVB rejected that application on the ground that Ms Franzen was not insured either under EU law or under Netherlands law. However, in its notification decision of 15 March 2004, the SVB indicates having suggested that Ms Franzen request the competent German institution to make her subject exclusively to Netherlands legislation in accordance with Article 17 of Regulation No 1408/71. It claims Ms Franzen did not act on that suggestion.

 

·       On 30 January 2006, Ms Franzen applied again for child benefits, which the SVB granted to her by decision of 27 March 2006, with effect from the first quarter of 2006.

 

·       By letter of 5 June 2007, an application was made on behalf of Ms Franzen for child benefits to be awarded to her with effect from the fourth quarter of 2002. By decision of 5 July 2007, the SVB determined that, as of the first quarter of 2006, Ms Franzen was no longer entitled to child benefits, but it decided not to reclaim the sums unduly paid. By decision of 16 November 2007, the objection lodged by Ms Franzen against that decision was declared unfounded and her application for a review of that decision was also rejected.

 

·       On 6 February 2008, while Ms Franzen’s appeal against that decision was still pending, the SVB adopted a new decision amending the grounds for its decision of 16 November 2007, stating that the requests for child benefits had been rejected on the ground that, under Article 13(2) of Regulation No 1408/71, German legislation alone applied to Ms Franzen, thereby precluding the application of Netherlands social insurance.

 

·       By judgment of 5 August 2008, the Rechtbank Maastricht declared the appeals against the decisions of 16 November 2007 and 6 February 2008 to be unfounded. Ms Franzen lodged an appeal before the Centrale Raad van Beroep and the parties to the proceedings before that court dispute whether Ms Franzen was insured under the AKW from 1 October 2002 by reason of her residency in the Netherlands.

 

 Mr Giesen’s case

 

·       Mr Giesen’s wife, who was born in 1947, worked in Germany in the course of 1970 and again from 19 May 1988 to 12 May 1993 as a ‘geringfügig Beschäftigte’, namely a person in minor employment. More specifically, she was a sales assistant in a clothing store and worked under an on-call contract for a limited number of hours per month not exceeding two or three days per month.

 

·       On 22 September 2006, Mr Giesen submitted an application for an old-age pension and a partner’s allowance under the AOW, which the SVB granted by decision of 3 October 2007. However, the partner’s allowance was reduced by 16% given that, during the period when she was working in Germany, Mr Giesen’s wife had not been insured under any social insurance scheme in the Netherlands. Mr Giesen lodged an objection against that decision to the extent that it reduced the partner’s allowance. By decision of 20 May 2008, that objection was dismissed as unfounded.

 

·       By judgment of 13 October 2008, the Rechtbank Roermond dismissed the appeal against the decision of 20 May 2008 as unfounded. That court held that Mr Giesen’s wife was not covered by Netherlands legislation, since it had not been established that she had not worked in Germany for more than three months. The dispute between the parties to the main proceedings before the referring court, to which Mr Giesen appealed, concerns whether, from 19 May 1988 to 31 December 1992, Mr Giesen’s wife was insured under the AOW by reason of her residency in the Netherlands.

 

 Mr van den Berg’s case

 

·       Mr van den Berg, who was born in 1943, worked in Germany from 25 June to 24 July 1972 and from 1 January 1990 to 31 December 1994. It is apparent from the order for reference that Mr van den Berg did not work every day, but only for brief periods of time. As his earnings were too low, he was not able to be considered as subject to pay social security contributions in Germany. On 17 January 2008, Mr van den Berg submitted an application for an old-age pension under the AOW. By decision of 1 August 2008, the SVB awarded him that pension, but a reduction of 14% was applied taking into account the fact that, for more than seven years, Mr van den Berg was uninsured in the Netherlands. By decision of 25 November 2008, his objection to that decision was declared to be in part well founded and the reduction was set at 10%.

 

·       By judgment of 19 October 2009, the Rechtbank Maastricht dismissed the appeal brought against the decision of 25 November 2008 as unfounded. Mr van den Berg brought an appeal against that judgment before the referring court, in which the parties to the main proceedings dispute whether, from 1 January 1990 to 31 December 1994, Mr van den Berg was insured under the AOW since he was resident in the Netherlands.

 

 Considerations generally applicable to all three cases

 

·       The Centrale Raad van Beroep takes the view that, during the periods at issue, the parties to the main proceedings could be considered to be employed persons within the meaning of Article 2 of Regulation No 1408/71, read in conjunction with Article 1(a) thereof, and that the AOW and the AKW fall within the scope ratione materiae of that regulation.

 

·       However, the question might arise as to whether, during the periods at issue, the parties to the main proceedings were subject to German legislation by virtue of Article 13(2)(a) of Regulation No 1408/71 and, if so, whether the exclusive operation of that provision means that Netherlands legislation was not applicable. In this context, the referring court cites Kits van Heijningen (C‑2/89, EU:C:1990:183), which concerned part-time work, and asks whether that case-law also applies to on-call contracts.

 

·       The referring court notes that, in the present cases, it is not disputed that the parties were not insured under German legislation in respect of their employment, with the exception of their compulsory contributions to the German statutory insurance against accidents, with the result that they were not entitled to claim an old-age pension or family benefits, as appropriate. It also points out that, during the period from 1 July 1989 to 31 December 1992, Mr Giesen’s wife and, during the periods relevant to them, Mr van den Berg and Ms Franzen must be considered as not being insured under the AOW and the AKW. In order to determine whether EU law precludes such exclusion, an interpretation is required of the provisions of EU law relating to freedom of movement for workers (Article 45 TFEU) and freedom of movement for EU citizens (Articles 20 TFEU and 21 TFEU).

 

·       In those circumstances the Centrale Raad van Beroep decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

(1)     

(a)   Must Article 13(2), introductory sentence and subparagraph (a), of Regulation No 1408/71 be interpreted as meaning that a resident of a Member State who comes within the scope of that regulation and who for not more than two or three days per month is employed in the territory of another Member State on the basis of an on-call contract, is on that ground subject there to the social security legislation of the State of employment?

(b)   If Question 1(a) is answered in the affirmative, does the subjection to the social security legislation of the State of employment apply both on the days on which the employment activities are performed and on the days on which those activities are not performed and, if so, how long does that subjection continue after the final employment activities have in fact been carried out?

 

(2)   Does Article 13(2), introductory sentence and subparagraph (a), in conjunction with Article 13(1), of Regulation No 1408/71 preclude a migrant worker to whom the social security legislation of the State of employment applies from being regarded, by virtue of national legislation of the State of residence, as an insured person under the AOW in the latter State?

 

(3)     

(a)   Must EU law, in particular the provisions concerning freedom of movement for workers and/or citizens of the Union, be interpreted as precluding, in the circumstances of the present cases, the application of a national provision such as Article 6a of the AOW and/or the AKW, under which a migrant worker residing in the Netherlands is excluded there from insurance cover under the AOW and/or the AKW on the ground that he is subject exclusively to German social security legislation, even in circumstances where that worker as a “geringfügig Beschäftigte” (person in minor employment) is excluded in Germany from insurance cover for the purposes of “Altersrente” (old-age pension) and is not entitled to “Kindergeld” (child benefits)?

(b)   Is it significant, for the purposes of the answer to Question 3(a), that it was possible to take out voluntary insurance under the AOW or to request the SVB to conclude an agreement as referred to in Article 17 of Regulation No 1408/71?

 

The CJEU ruled as follows:

 

1       Article 13(2)(a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security 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, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, must be interpreted as meaning that a resident of a Member State, who comes within the scope of that regulation, as amended, and who works for several days per month on the basis of an on-call contract in the territory of another Member State, is subject to the legislation of the State of employment both on the days on which he performs the employment activities and on the days on which he does not.

 

2       Article 13(2)(a) of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, read in conjunction with Article 13(1) of that regulation, must be interpreted, in circumstances such as those in the main proceedings, as not precluding a migrant worker, who is subject to the legislation of the State of employment, from receiving, by virtue of national legislation of the Member State of residence, an old-age pension and family benefits from the latter State.

 

For further information click here to be forwarded to the text of the ruling as published on the website of the CJEU, which will open in a new window.

 

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