Recent case law from the ECJ
9.10.2012 Bratislava
Slovakian trESS seminar
Essi Rentola
trESS
trESS
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C-106/11 M.J. Bakker
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C-611/10 Waldemar Hudzinski and Jaroslaw Wawrzyniak
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Concerning the refusal to take into account and credit, for the purposes of calculating future old
age pension, ‘child-raising periods’ and ‘periods to be taken into consideration’ completed by
her in Belgium.
C-257/10, Bergström
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Child benefit in Germany
C-522/10 Doris Reichel-Albert
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Compulsory affiliation to the Dutch social insurance scheme
Concerning equating income earned in another country in the determination of entitlement to
family benefits
C-115/11 Format
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Concerning the definition of a person ‘normally’ employed in the territory of two or more
Member States
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C-106/11 M.J. Bakker v Minister van Financiën
Facts
– During 2004, Mr Bakker, who has Dutch nationality, resided in Spain
and was employed on board dredgers flying the Dutch flag for an
undertaking established in Rotterdam (Netherlands). He carried out
his activities mainly in the territorial seas of China and of the United
Arab Emirates. The dredgers were recorded in the Dutch maritime
shipping register.
– Mr Bakker challenged the assessment sent to him in respect of income
tax and national insurance contributions for 2004 in the Netherlands
and was convinced he should not be affiliated to the Dutch
compulsory social security scheme
C-106/11 M.J. Bakker v Minister van Financiën
Questions to the ECJ
– Does Article 13(2)(c) of Regulation No 1408/71 preclude a
national legislative measure that excludes from affiliation
to the social security scheme a person who holds that
Member State’s nationality but does not reside in it and is
employed on board a dredger flying the flag of that
Member State but operating outside European Union
territory?
C-106/11 M.J. Bakker v Minister van Financiën
ECJ
– Article 13(2)(c) of Regulation 1408/71 expressly provides that a person employed on
board a vessel flying the flag of a Member State is to be subject to the legislation of the
State.
– Residence requirement for compulsory general social insurance in the Netherlands could
not change the conclusion.
– Article 13(2)(c) of Regulation No 1408/71 must thus be interpreted as precluding a
legislative measure of a Member State from excluding, from affiliation to the social
security scheme of that Member State, a person in the position of the applicant in the
main proceedings, who holds that Member State’s nationality but does not reside in it
and is employed on board a dredger flying the flag of that Member State and operating
outside the territory of the European Union.
Case C-611/10 Waldemar Hudzinski v Agentur für Arbeit Wesel - Familienkasse
and Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach –
Familienkasse
Facts:
– Mr Hudziński and Mr Wawrzyniak, both Polish nationals, living and working in
Poland, had respectively worked as a seasonal worker and as a posted worker
in Germany. Both were treated as being subject to unlimited income tax
liability in Germany for that period.
– When they applied for the payment of child benefit (pursuant to German
legislation basing entitlement to child benefits on unlimited income tax
liability), the German Familienkasse rejected that application.
– In their respective appeals before the German Federal Finance Court, they
refered to Case C 352/06 Bosmann
• That the German child benefits legislation remains applicable even where, pursuant to
Regulation 1408/71, the Federal Republic of Germany is not the competent Member State
under Article 14a(1)(a) of that regulation, in the case of Mr Hudziński, or under Article 14(1)(a)
of that regulation, in the case of Mr Wawrzyniak.
Case C-611/10 Waldemar Hudzinski v Agentur für Arbeit Wesel - Familienkasse and
Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach – Familienkasse
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Questions to ECJ:
– Does Regulation No 1408/71 preclude a Member State, which is not
designated under those provisions as the competent Member State, from
granting child benefits in accordance with its national law ?
– Does the rules against overlapping set out in Article 76 of Regulation 1408/71
and Article 10 of Regulation 547/72, the Treaty rules on the free movement of
workers and the principle of non-discrimination preclude the application of a
rule of national law, which excludes entitlement to child benefits in the case
where a comparable benefit must be paid in another State or would have to
be paid if a claim to that effect were to be made?
Case C-611/10 Waldemar Hudzinski v Agentur für Arbeit Wesel - Familienkasse and
Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach – Familienkasse
ECJ:
• According to Articles 14(1)(a) and 14a(1)(a) of Regulation 1408/71 Polish
legislation is applicable.
• The objective of the provisions of Title II of Regulation No 1408/71 is to
ensure that persons to which its applicable are in principle subject to the
social security scheme of only one Member State.
• Primary law of the European Union cannot guarantee to an insured person
that moving to another Member State will be neutral in terms of social
security.
Case C-611/10 Waldemar Hudzinski v Agentur für Arbeit Wesel - Familienkasse and
Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach – Familienkasse
ECJ:
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Regulation No 1408/71 must be interpreted in the light of Article 48 TFEU
 A migrant workers must not lose their right to social security benefits or have
the amount of those benefits reduced because they have exercised the right
to freedom of movement .
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Residence of the worker or his family members in the non-competent state is
irrelevant
 As the connection to the MS from which family benefits are claimed is the fact
of subjection to unlimited income tax liability in respect of the income earned
from the temporary work in that Member State.
 Such a connection is based on a precise criterion and may be regarded as
being sufficiently close, when account is also taken of the fact that the family
benefit claimed is financed by tax revenue.
Case C-611/10 Waldemar Hudzinski v Agentur für Arbeit Wesel - Familienkasse and
Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach – Familienkasse
• German rules excluded entitlement to child benefits where a comparable
benefit must be paid or would have to be paid if it was claimed,
– This situation is not covered by that rule against overlapping or by that
laid down by Article 76 of Regulation 1408/71 since it does not
concern a hypothetical overlapping of entitlements.
• A national rule that excludes the national benefit constitutes a
substantial disadvantage affecting in reality a greater number of migrant
workers than settled workers who have worked exclusively in the Member
State concerned.
– Therefore disadvantage is contrary to the requirements of the primary
law of the European Union on the free movement of workers.
(Case C-522/10) Doris Reichel-Albert v Deutsche
Rentenversicherung Nordbayern
Facts:
• Mrs Reichel-Albert, a German national, pursued an activity as an
employed person in Germany and lived there until 30 June 1980. She then
received unemployment benefit paid by that Member State until 10
October 1980. From July 1980 to June 1986, she was resident in Belgium
with her spouse, who pursued an activity as an employed person there.
The couple has two children, who were born in Belgium on in 1981 and
1984. On 1 July 1986, Mrs Reichel-Albert, her spouse and their children
were officially returned to reside in Germany. By decisions in 2008, the
DRN rejected Mrs Reichel-Albert’s request to have the child-raising
periods and ‘periods to be taken into consideration’ completed during her
stay in Belgium taken into account and credited, on the ground that,
during that period, the child-raising took place abroad.
Case C-522/10 Doris Reichel-Albert v Deutsche
Rentenversicherung Nordbayern
ECJ:
• Article 21 TFEU was decisive in this case and it was apparent
from Article 87(1) of Regulation 883/2004, which applies to
situations governed by Regulation 987/2009 pursuant to
Article 93 of that regulation, that it does not give rise to any
entitlement for the period prior to the date of its application,
namely 1 May 2010.
• Article 44 of Regulation No 987/2009 is not applicable ratione
temporis to the facts at issue in the main proceedings
(Decision made 2008). As Regulation 1408/71 does not lay
down specific rules for child-raising periods either, the ECJ
only referred to the Treaty.
Case C-522/10 Doris Reichel-Albert v Deutsche
Rentenversicherung Nordbayern
ECJ:
• German legislation was applicable and, as regards the crediting of periods
of child-rearing for the purposes of old age insurance
• She worked and contributed in only one Member State
• Sufficiently close link was established between those child-raising periods
and the periods of insurance completed by virtue of the pursuit of a
gainful occupation in the first Member State under consideration
• According to German law, child-raising periods completed outside
Germany can be taken into account if the child-raising parent has
habitually resided abroad with his or her child or immediately before the
birth of the child has completed periods of contribution (own activity).
Case C-522/10 Doris Reichel-Albert v Deutsche
Rentenversicherung Nordbayern
ECJ:
• National legislation which places some of its nationals at a disadvantage
simply because they have exercised their freedom to move and to reside
in another Member State thereby gives rise to inequality of treatment,
contrary to the principles which underpin the status of citizen of the
Union,.
 the fact of precluding child-raising periods completed outside the
national territory from being taken into account, is contrary to Article
21 TFEU.
C-257/10 Försäkringskassan v Elisabeth Bergström
• A Swedish national who was employed in Switzerland
until the birth of her daughter. After giving birth, she
returned to Sweden (hence, not insured for sick leave
benefits in Sweden)
• She applied for Swedish parental benefit
 At the basic level (no Swedish sick leave insurance)
 At the daily sick leave benefit level (Swedish sick leave insurance, last annual
salary to be used as assessment base)
• Swedish National Social Insurance Office grants only
basic parental benefit because she had not been
employed in Sweden
C-257/10 Försäkringskassan v Elisabeth Bergström
• Questions to ECJ:
• Can a qualification period for family benefits
required under Swedish law be completed
through employment and insurance in
Switzerland?
• Is income earned in Switzerland to be equated
with domestic income in the determination of
entitlement to family benefits?
C-257/10 Försäkringskassan v Elisabeth Bergström
• ECJ:
• Principle of aggregation of periods includes ‘all periods’; insurance
periods in home State are not required.
• Bergström’s qualifying income must be calculated by
taking into account the income of a person who is
employed, in Sweden, in a situation comparable to her
situation and comparable to her experience and
qualifications
C-115/11 Format Urządzenia i Montaże Przemysłowe sp. z o.o. v. Zakład
Ubezpieczeń Społecznych I Oddział w Warszawie,
• Format, which has its registered office in Poland, is a subcontracting
construction company operating in certain Member States.
• Format employed staff recruited in Poland, but posted them to building
projects under way in the various Member States.
• Mr Kita was employed for three occasions full-time by Format on the basis
of fixed-term contracts of employment. Mr Kita’s place of residence
remained in Poland.
• In all three contracts the place of employment was defined as being
‘operations and building sites in Poland and within the territory of the
European Union (Ireland, France, Great Britain, Germany, Finland).
C-115/11 Format Urządzenia i Montaże Przemysłowe sp. z o.o. v. Zakład
Ubezpieczeń Społecznych I Oddział w Warszawie,
• ZUS issued him with an E 101 certificate on the basis of article 14(2)(b) for
the the two first contracts.
• By decision of 23 July 2008 the ZUS – on the basis of Polish law and of
Article 14(1)(a) and 14(2)(b) of Regulation No 1408/71 – refused to issue
an E 101 certificate regarding the legislation applicable
– Mr Kita was not a ‘person normally employed in two or more Member States’ within the
meaning of Regulation No 1408/71, but an employee posted by reference to the
employers situations
– During the first two contracts in France and the during the third in Finland
C-115/11 Format Urządzenia i Montaże Przemysłowe sp. z o.o. v. Zakład
Ubezpieczeń Społecznych I Oddział w Warszawie,
• ECJ
• The issuing institution of an E 101 certificate is required to carry out a
proper assessment of the facts relating to the determination of the
legislation applicable in the matter of social security and, consequently, to
ensure the correctness of the information contained in that certificate
• If it is apparent from relevant factors other than contractual documents
that an employed person’s situation in fact differs from that described in
the contract the institution has to base its findings on the employed
person’s actual situation and, where appropriate, to refuse to issue the
E 101 certificate.
• The institution which has already issued an E101 has to reconsider and if
necessary withdraw the certificate
C-115/11 Format Urządzenia i Montaże Przemysłowe sp. z o.o. v. Zakład
Ubezpieczeń Społecznych I Oddział w Warszawie,
• ECJ:
• To fall within Article 14(2)(b) of Regulation No 1408/71, a
person must ‘normally’ be employed in the territory of two or
more Member States.
• If employment in the territory of a single Member State
constitutes the normal arrangement for the person
concerned, such employment cannot fall within the scope of
Article 14(2)(b).
Outlook
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ECJ, C-433/11, Jeltes et al.
– Relevance of Miethe judgment for Regulation 883/2004 (special solution for nontypical frontier workers despite Article 65?)
ECJ, C-140/12, Brey
– Relationship between Regulation 883/2004 and Residence Directive 2004/38/EC
(Can a non-contributory cash benefit be welfare assistance as defined in
residence law)
ECJ, C-321/12, van der Helder and Farrington
– Interpretation of Articles 4 and 28(2)(b) of Regulation (EEC) No 1408/71.
– Benefits for pensioners resident in a Member State other than that of the competent
institution.
– Concept of ‘legislation [to which] the pensioner has been subject for the longest period
of time’ .
EFTA-court E-6/12 Efta surveillance authority v Norway
– Family concept, separated parents, family benefits