Judgment of the Court (Second Chamber) of 13 October 2022

European Union law

3 The purpose of Regulation No 883/2004, which entered into force on 20 May 2004, is the coordination of national social security schemes. In accordance with Article 91 thereof, it has been applicable since the date of entry into force 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 (OJ 2009 L 284, p. 1), namely, 1 May 2010.

4 Article 1 of Regulation No 883/2004 states:

‘For the purposes of this Regulation:

1. “activity as an employed person” means any activity or equivalent situation treated as such for the purposes of the social security legislation of the Member State in which such activity or equivalent situation exists;

2. “activity as a self-employed person” means any activity or equivalent situation treated as such for the purposes of the social security legislation of the Member State in which such activity or equivalent situation exists;

…’

5 Title II of that regulation, entitled ‘Determination of the legislation applicable’, includes, inter alia, Article 11, itself entitled ‘General rules’, paragraphs 1 to 3 of which provide:

‘1.

Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.

2.

For the purposes of this Title, persons receiving cash benefits because or as a consequence of their activity as an employed or self-employed person shall be considered to be pursuing the said activity. This shall not apply to invalidity, old-age or survivors’ pensions or to pensions in respect of accidents at work or occupational diseases or to sickness benefits in cash covering treatment for an unlimited period.

3.

Subject to Articles 12 to 16:

1. a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;

2. a civil servant shall be subject to the legislation of the Member State to which the administration employing him/her is subject;

3. a person receiving unemployment benefits in accordance with Article 65 under the legislation of the Member State of residence shall be subject to the legislation of that Member State;

4. a person called up or recalled for service in the armed forces or for civilian service in a Member State shall be subject to the legislation of that Member State;

5. any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence, without prejudice to other provisions of this Regulation guaranteeing him/her benefits under the legislation of one or more other Member States.’

Netherlands law

The case relating to X

12 As from 14 January 2013, X, a Netherlands national residing in Germany, began to work as an employed person in the Netherlands through the intermediary of a temporary employment agency. The contract of employment entered into with that agency provided that the employment relationship would begin at the time of the actual commencement of the work assignment and would end automatically as soon as, at the request of the user undertaking, that assignment ended.

13 Under that contract, X performed several temporary work assignments, spaced apart at periods ranging, for the longest, from 19 October 2013 to 30 March 2014 and, for the shortest, from 20 to 25 September 2014, and from 23 to 28 January 2015.

14 During those periods, X was a volunteer in the Netherlands and carried out unpaid family care work. She also performed domestic work with her sons, for which she received very low remuneration.

15 By decision of 6 July 2015, the SVB, at X’s request, informed her of her pension rights under the AOW, from which it is apparent that, on 30 January 2015, she had accrued 82% of the full old-age pension under the AOW. The SVB took the view, in that regard, that, in so far as she was resident in Germany, X was insured under the Netherlands social security scheme only during the periods when she had actually worked for the temporary employment agency in the Netherlands, but not during the intervening periods between her temporary work assignments.

16 After her complaint against that decision was rejected as unfounded by decision of the SVB of 21 December 2015, X brought an action before the rechtbank Amsterdam (District Court, Amsterdam, Netherlands).

17 By judgment of 3 October 2016, that court ordered the SVB to adopt a new decision. The court held, referring, in particular, to the judgment of 23 April 2015, Franzen and Others (C‑382/13, EU:C:2015:261 ), that the intervening periods between the temporary work assignments carried out by X had to be regarded as periods of leave or unemployment within the meaning of Article 6 of the BUB, with the result that, during those intervening periods, X was covered by the Netherlands legislation.

18 The SVB appealed against that judgment before the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands), the referring court in the present case.

19 The referring court states that, since X has not completed a period of insurance in Germany, she cannot claim an old-age pension in that Member State.

The case relating to Y

20 As from 16 July 2007, Y, a Polish national residing with his family in Poland, began to work as an employed person in the Netherlands through a temporary employment agency with which he entered into successive employment contracts, spaced several periods apart.

21 On 20 July 2015, Y entered into a fixed-term employment contract of eight months with that agency, which provided that, if the work in the user undertaking were to cease, Y would be required, during the term of that contract, to accept suitable replacement work and that the contract would end if he refused or was no longer prepared to work. As the latter situation arose, that contract came to an end on 31 December 2015.

22 Y, who had not worked between 1 January and 7 February 2016, entered into a new employment contract with the same agency on 8 February 2016.

23 By decision of 29 March 2016, the SVB informed Y that he was not entitled to child benefit under the Netherlands social security scheme for the months of January and February 2016 since he had not been working in the Netherlands on the first working day of each of those months.

24 Following the rejection of his complaint by decision of the SVB of 20 May 2016, Y brought an action before the rechtbank Amsterdam (District Court, Amsterdam).

25 By judgment of 5 January 2017, that court dismissed the action as unfounded. It found that the employment contract of 20 July 2015 had ended during the period between 1 January and 7 February 2016 and stated that it had not been established that paid or unpaid leave had been provided for under that contract. Therefore, that period could not constitute a temporary interruption of work within the meaning of Article 6 of the BUB.

26 Y appealed against that judgment before the Centrale Raad van Beroep (Higher Social Security and Civil Service Court).

Considerations applicable to both cases in the main proceedings

27 The referring court notes that X and Y were insured under the AOW and the AKW respectively during the periods in which they carried out temporary work assignments in the Netherlands and that the disputes in the main proceedings concern whether their affiliation to the Netherlands social security scheme ceased during the intervening periods between those assignments. That court finds that it is necessary, for that purpose, to determine the legislation applicable during those intervening periods pursuant to Regulation No 883/2004.

28 It observes, in that regard, that, according to Article 11(1) of Regulation No 883/2004, persons to whom that regulation applies are to be subject to the legislation of a single Member State only, which is determined in accordance with the provisions of Article 11(3) of that regulation.

29 The referring court finds that, in order for Article 11(3)(a) of Regulation No 883/2004 to apply, there must be an activity or equivalent situation within the meaning of Article 1(a) of that regulation, which is regarded as such for the purposes of the application of the social security legislation of the Member State in which that activity is pursued or the equivalent situation exists.

30 In the present case, the situations of X and of Y during the intervening periods between their work assignments do not constitute activity as an employed person within the meaning of Article 1(a) of Regulation No 883/2004. Under Netherlands law, the activities carried out by X in the Netherlands during those intervening periods cannot be regarded as activity as an employed person. Similarly, under Netherlands law Y was not employed during those intervening periods because his employment contract had come to an end at that time. Furthermore, no unpaid leave was agreed in advance and the employment contract of 8 February 2016 was entered into for a period exceeding the expiry date initially provided for in the previous employment contract.

31 The referring court is, therefore, uncertain whether the situations of X and of Y during the intervening periods between their temporary work assignments can be regarded as ‘equivalent situation[s]’ within the meaning of Article 1(a) of Regulation No 883/2004.

32 It observes, in that regard, that there was no longer an employment relationship during the intervening periods between the temporary work assignments carried out by X and Y, with the result that they cannot be regarded as having been, during those periods, workers within the meaning of Netherlands law.

33 The referring court adds that, as is apparent from the judgment of 19 September 2019, van den Berg and Others (C‑95/18 and C‑96/18, EU:C:2019:767 ), the Member State of employment is not required to make subject to its social security legislation a migrant worker residing in the territory of another Member State for the periods during which that worker is subject, under Title II of Regulation No 883/2004, to the social security legislation of the latter Member State, even though that legislation does not confer on that worker any entitlement to an old-age pension or child benefit. Therefore, the fact that the persons concerned were not entitled to similar benefits in their Member State of residence is irrelevant.

34 However, the referring court is uncertain whether the legislation applicable during the intervening periods between the temporary work assignments of X and of Y must be determined in accordance with Article 11(3)(e) of Regulation No 883/2004.

35 It maintains, in that regard, that it is clear from the case-law of the Court, in particular from paragraph 50 of the judgment of 23 April 2015, Franzen and Others (C‑382/13, EU:C:2015:261 ) – delivered in the context of Regulation (EEC) No 1408/71 of 14 June 1971 of the Council 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 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006 (OJ 2006 L 392, p. 1), which would be applicable in the context of Regulation No 883/2004 – that persons normally pursuing their occupational activity in a Member State fall within the scope of Article 11(3)(a) of Regulation No 883/2004 for as long as they have not definitively or temporarily ceased that activity and that they remain subject to that legislation also on the days when they do not actually pursue that activity. Thus, the fact that there is an employment relationship is not decisive in that regard. The referring court does not, therefore, exclude the possibility that the intervening periods between the temporary work assignments of X and Y, in particular of X, do not actually constitute a cessation of their activity as an employed person in the Netherlands. It raises the question of the relevant factors which must be taken into account in that regard, in particular as to the period from which it must be considered that a person who, like X or Y, no longer has an employment relationship, has ceased working in the Member State of employment.

36 However, the referring court notes that it is also apparent from paragraph 51 of that judgment that a person is automatically subject to the legislation of the State of residence if he or she does not work for remuneration and has no employment relationship, even if he or she has only temporarily ceased working in the State of employment, the only exception being where the person concerned receives a benefit within the meaning of Article 11(2) of Regulation No 883/2004.

37 Taking those circumstances into account, the Centrale Raad van Beroep (Higher Social Security and Civil Service Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

• Must Article 11(3)(a) of Regulation (EC) No 883/2004 be interpreted as meaning that a worker who resides in a Member State, and works in the territory of another Member State on the basis of a temporary agency contract, under which the employment relationship ends as soon as the temporary assignment ends and is then resumed again, remains subject to the legislation of the latter Member State during the intervening periods, so long as he or she has not temporarily ceased that work?

• What factors are relevant for assessing whether or not there is a temporary cessation of activity in such cases?

• How much time must elapse before a worker who is no longer in a contractual employment relationship is to be regarded as having temporarily ceased his or her activity in the country of employment, unless there are concrete indications to the contrary?’