Judgment of the Court (Seventh Chamber) of 26 September 2024

Judgment

1 This request for a preliminary ruling concerns the interpretation, first, of Council Regulation (EC) No 1408/71 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, in the version 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 631/2004 of the European Parliament and of the Council of 31 March 2004 (OJ 2004 L 100, p. 1) (‘Regulation No 1408/71’), and, secondly, of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012 (OJ 2012 L 149, p. 4) (‘Regulation No 883/2004’), and, in particular, of Article 13(2) and Article 87(8) of that regulation in conjunction with 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), as amended by Regulation No 465/2012.

2 The request has been made in proceedings between Sozialversicherungsanstalt der Selbständigen (social insurance institution for self-employed persons; ‘the SVS’) and W M concerning the SVS’s refusal to issue W M with a certificate stating that, for the period from 1 January 2017 to 31 March 2018 (‘the period at issue’), he was subject to the Austrian social security scheme.

Legal context

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

22 On 14 April 2020, W M, of Austrian and Liechtenstein nationality, requested the SVS to issue him, on the basis of Regulation No 1408/71, with an E101 form, certifying that he was subject to Austrian social security for the period at issue, during which he simultaneously pursued occupational activities as a self-employed doctor in Austria, in Liechtenstein and in Switzerland, accounting for approximately 19%, 78% and 3%, respectively, of his income.

23 Before taking up an additional occupational activity as a self-employed person in Switzerland on 1 January 2017, W M simultaneously pursued an occupational activity as a self-employed person in Liechtenstein and in Austria and was, on account of his residence in Austria, subject to Austrian social security legislation pursuant to Article 14a(2) of Regulation No 1408/71.

24 Since Regulation No 883/2004 has replaced Regulation No 1408/71, the SVS reclassified W M’s request as seeking to obtain an A1 form on the basis of Regulations No 883/2004 and No 987/2009 and refused that request by decision of 21 October 2020. The reason for that refusal was the fact that, although it is true that in relations with the Principality of Liechtenstein, on the basis of the EEA Agreement, and in relations with the Swiss Confederation, on the basis of the AFMP, those regulations would apply to the three States concerned, in the present case, however, there is no agreement covering both the Member States of the EEA and the Swiss Confederation, with the result that W M’s activities during the period at issue should be separately subject to the legislation of each of those States.

25 The Bundesverwaltungsgericht (Federal Administrative Court, Austria) upheld the action brought by W M against that decision and held that he should have been issued with a certificate stating that, during the period at issue, he was subject to Austrian social security.

26 That court took the view that the situation at issue in the main proceedings should be examined, as regards the activities pursued in Austria and in Liechtenstein, on the basis of the EEA Agreement and, as regards the activities pursued in Austria and in Switzerland, on the basis of the AFMP and that it was important in that regard to determine whether the occupational activity pursued by W M in Switzerland constituted a change within the meaning of Article 87(8) of Regulation No 883/2004, with the result that Regulation No 1408/71 would no longer apply in this case.

27 Following its examination, that court found, first, as regards the EEA Agreement, that W M was, in accordance with Article 14a of Regulation No 1408/71, subject to Austrian social security legislation in respect of the occupational activities pursued in those States. According to that court, the pursuit of an additional simultaneous occupational activity in Switzerland was not relevant with regard to that agreement and did not therefore entail any change in respect of the relevant situation within the meaning of Article 87(8) of Regulation No 883/2004. It found, secondly, as regards the AFMP, that W M was, in accordance with Article 13 of Regulation No 883/2004, also subject to Austrian social security legislation, since he pursued the essential part of his occupational activities in Austria, where he resided.

28 The Verwaltungsgerichtshof (Supreme Administrative Court, Austria), the referring court, hearing the appeal on a point of law against that decision brought by the SVS, states that the determination of the social security legislation applicable to an EU citizen who pursues occupational activities in a number of Member States is governed by Regulation No 883/2004 in conjunction with Regulation No 987/2009. According to that court, those regulations are applicable in relations with other States by agreements, in particular, to the EEA States, including the Principality of Liechtenstein, under the EEA Agreement and, under the AFMP, to the Swiss Confederation.

29 The referring court expresses doubts as to whether the approach – consisting in separately examining, in the context of the EEA Agreement, on the one hand, and in the context of the AFMP, on the other, which is, in accordance with the rules laid down by Regulations No 1408/71 and No 883/2004, the applicable social security legislation – complies with the principle that the legislation of a single Member State is to apply, as set out in Article 13(1) of Regulation No 1408/71 and in Article 11 of Regulation No 883/2004. It could not be ruled out that such a separate examination may, in other circumstances than those at issue in the main proceedings, lead to different legislation concurrently applying in respect of the same person and the same period. Therefore, that court considers it necessary to ask for a preliminary ruling from the Court of Justice as to whether Regulations No 1408/71 and No 883/2004 are applicable to a situation such as that at issue in the main proceedings and, if so, how they should be applied.

30 If the Court should find that those regulations apply in the present case, the referring court is also unsure as to the interpretation of the transitional provision laid down in Article 87(8) of Regulation No 883/2004 in a situation such as that at issue in the main proceedings.

31 The referring court notes that, before the period at issue and the taking up of his additional occupational activity in Switzerland, W M, who simultaneously pursued an activity as a self-employed person in Austria and in Liechtenstein, was, on account of his residence in Austria, subject to Austrian legislation, in accordance with Article 14a(2) of Regulation No 1408/71. Regulation No 883/2004, which has replaced Regulation No 1408/71, provides, in Article 13(2) thereof, that, in the event of activities pursued as a self-employed person in a number of Member States, the legislation of the Member State of residence applies only if a substantial part of activities are also pursued in that Member State, and that in the absence of such activities, the legislation of the Member State in which the centre of interest of the activities of the person concerned applies. Accordingly, Liechtenstein legislation should apply to W M during the period at issue on account of the pursuit of a substantial part of his activities in Liechtenstein. However, under Article 87(8) of Regulation No 883/2004, Austrian social security legislation should have continued to apply to the person concerned, since his situation remained unchanged after that regulation entered into force.

32 The referring court asks, in essence, whether the fact that W M, who already pursues an occupational activity in two States, including a Member State of the European Union and an EFTA State, which is a party to the EEA Agreement, takes up a minor additional occupational activity in a third State, namely the Swiss Confederation, constitutes a change in the ‘relevant situation’ within the meaning of Article 87(8) of Regulation No 883/2004.

33 In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

• Are the rules of EU law on the determination of the applicable legislation in the area of social security according to [Regulation No 883/2004] in conjunction with [Regulation No 987/2009] to be applied to a situation in which an EU citizen … simultaneously [pursues his or her occupational activities] in an EU [Member] State, an … EFTA State[, which is a party to the EEA Agreement] (Liechtenstein) and Switzerland?

If the answer to the first question is in the affirmative:

1. Must the application of [Regulation No 883/2004] in conjunction with [Regulation No 987/2009] in such a case be such that the applicability of the social security legislation must be assessed separately in the relationship between the EU Member State and the … EFTA State[, which is a party to the EEA Agreement], on the one hand, and the relationship between the EU Member State and [the Swiss Confederation], on the other hand, and must, accordingly, a separate certificate regarding the applicable legislation be issued in each case?

2. Is there a change in the “relevant situation” within the meaning of Article 87(8) of [Regulation No 883/2004] where an [occupational] activity is commenced in another State to which the said regulation is applicable, even if a change in the applicable legislation would not result either under [Regulation No 883/2004] or under [Regulation No 1408/71] and the activity is so subordinate [to the] extent that only about 3% of total income is thereby obtained?

   In that regard, does it make any difference whether, within the meaning of the second question, [the] coordination in bilateral relations must take place separately, that is to say, on the one hand, between the States hitherto concerned and, on the other hand, between one of the States hitherto concerned and the “other” State?’

Consideration of the questions referred

34 By its three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Regulation No 1408/71 and Regulation No 883/2004 in conjunction with Regulation No 987/2009 must be interpreted as being applicable to a situation in which an EU citizen – who simultaneously pursues occupational activities as a self-employed person in an EU Member State and an EFTA State, which is a party to the EEA Agreement – takes up an additional occupational activity as a self-employed person in Switzerland. If so, the referring court asks, in essence, whether it is necessary to determine the social security legislation applicable pursuant to those regulations to such a situation separately, namely, on the one hand, on the basis of the EEA Agreement as regards relations between the Member State and the EFTA State, which is a party to the EEA Agreement, and, on the other, on the basis of the AFMP as regards relations between the Member State of the European Union and the Swiss Confederation.

35 It is important to state at the outset that the EEA Agreement provides, in Articles 28 to 30 thereof, and in Annex VI (Social security) thereto, that Regulations No 883/2004 and No 987/2009 apply in situations involving the Member States of the European Union and the Principality of Liechtenstein. Likewise, the AFMP and, more specifically, Article 8 thereof and Annex II thereto provide that those regulations apply in situations involving Member States of the European Union and the Swiss Confederation.

36 It follows that Regulations No 883/2004 and No 987/2009 apply to a situation, such as that at issue in the main proceedings, in which an EU citizen, who simultaneously pursues an occupational activity as a self-employed person in Austria and in Liechtenstein, takes up an additional occupational activity as a self-employed person in Switzerland.

37 Any contrary interpretation would be tantamount to preventing EU citizens from enjoying the rights they derive from Regulations No 883/2004 and No 987/2009 and, consequently, to putting them at a disadvantage on the sole ground that they are pursuing their right to free movement not only in Liechtenstein, but also in Switzerland.

38 As is apparent from the case-law of the Court, the free movement of persons guaranteed by the AFMP would be impeded if a national of a Contracting Party were to be placed at a disadvantage in his or her State of origin solely for having exercised his or her right of free movement (judgment of 26 February 2019, Wächtler , C‑581/17, EU:C:2019:138, paragraph 53 ). Such an interpretation would also fail to have regard to the fact that the EEA Agreement not only enables nationals of Iceland, Liechtenstein and Norway to invoke the rights conferred by Regulations No 883/2004 and No 987/2009 within the European Union, but also enables nationals of the Member States to rely on those rights in Iceland, Liechtenstein and Norway (judgment of 26 September 2013, United Kingdom v Council , C‑431/11, EU:C:2013:589, paragraph 55 ).

39 In addition, it must be noted that the application of Regulations No 883/2004 and No 987/2009 to a situation such as that at issue in the main proceedings, which concerns three different States, reduces the risk of the person concerned being simultaneously subject to the social security legislation of several States, since, in accordance with the principle pursued by those regulations that the legislation of a single Member State is to apply, persons to whom those regulations apply should be subject to the legislation of a single Member State in order to avoid the complications which may arise from the simultaneous application of a number of national legislative systems and to eliminate complications, which, for persons moving within the European Union, in the EFTA States, which are parties to the EEA Agreement, and in Switzerland would be the consequence of partial or total overlapping of the applicable legislation (see, to that effect, judgments of 6 June 2019, V , C‑33/18, EU:C:2019:470, paragraph 42 , and of 13 October 2022, Raad van bestuur van de Sociale verzekeringsbank (Intervals between temporary work assignments) , C‑713/20, EU:C:2022:782, paragraph 39 ).

40 As regards the manner in which Regulations No 883/2004 and No 987/2009 should be applied to a situation such as that at issue in the main proceedings, it must be stated that, since those regulations apply on the basis of two separate legal bases, namely the EEA Agreement and the AFMP, the determination of the social security legislation applicable to the person concerned during the period at issue must, logically, reflect that distinction.

41 Accordingly, in the present case, those regulations must be applied separately, that is to say, on the one hand, as regards the relations between the Republic of Austria and the Principality of Liechtenstein, on the basis of the EEA Agreement, as was already the case before W M took up an additional occupational activity as a self-employed person in Switzerland, and, on the other, as regards the relations between the Republic of Austria and the Swiss Confederation, on the basis of the AFMP.

42 First, as regards the EEA Agreement, which governs, inter alia, situations involving the Republic of Austria and the Principality of Liechtenstein, Article 13(2)(a) of Regulation No 883/2004 states that the person concerned is subject to the legislation of the Member State of residence only if he or she pursues a substantial part of his or her activity there. Article 14(8) of Regulation No 987/2009 provides that, for the purposes of the application of Article 13(1) and (2) of Regulation No 883/2004, a ‘substantial part of employed or self-employed activity’ pursued in a Member State means a quantitatively substantial part of all the activities of the employed or self-employed person pursued there, without this necessarily being the major part of those activities. To determine whether a substantial part of the activities is pursued in a Member State, in the case of a self-employed activity, the turnover, working time, number of services rendered and/or income are to be taken into account. In the framework of an overall assessment, a share of less than 25% in respect of those criteria is to be an indicator that a substantial part of the activities is not being pursued in the relevant Member State.

43 It follows from the order for reference that, during the period at issue, W M pursued his occupational activities simultaneously in Austria and in Liechtenstein, accounting for 19% and 78%, respectively, of his income. Consequently, the occupational activity pursued by W M during the period at issue in the Member State in which he resided, namely the Republic of Austria, represented less than 25% of his income. He cannot therefore be regarded as pursuing, at that time, a substantial part of his activities in that Member State.

44 Article 13(2)(b) of Regulation No 883/2004 provides that, if the person concerned does not reside in the Member State in which he or she pursues a substantial part of his or her activity, that person is subject to the legislation of the Member State where the centre of interest of his or her activities is situated. Under Article 14(9) of Regulation No 987/2009, the ‘centre of interest’ of the activities of a self-employed person for the purposes of Article 13(2)(b) is to be determined by taking account of all the aspects of that person’s occupational activities, notably the place where the person’s fixed and permanent place of business is located, the habitual nature or the duration of the activities pursued, the number of services rendered, and the intention of the person concerned as revealed by all the circumstances.

45 Given that, during the period at issue, W M pursued the major part of his occupational activities in Liechtenstein, the centre of interest of his activities being located in that State, he should, pursuant to Article 13(2)(b) of Regulation No 883/2004 in conjunction with Article 14(9) of Regulation No 987/2009, be subject to the Liechtenstein social security legislation during the period at issue.

46 Consequently, during that period, W M was subject, in principle, to the legislation of a Member State other than that of the Member State the legislation of which he was subject to under Title II of Regulation No 1408/71, namely Austrian social security legislation.

47 It must however be noted that, in such a situation, Article 87(8) of Regulation No 883/2004 provides that the social security legislation applicable under Title II of Regulation No 1408/71 continues to apply if the relevant situation remained unchanged and in any case for no longer than 10 years from the date of application of Regulation No 883/2004.

48 It is therefore important to assess whether, during the period at issue, the relevant situation remained unchanged, since, if so, Austrian social security legislation should continue to apply to W M. In order to do so, it must, in particular, be determined whether the fact that W M – who already simultaneously pursued independent occupational activities in a Member State of the European Union, namely the Republic of Austria, and in an EFTA Member State, which is a party to the EEA Agreement, namely the Principality of Liechtenstein – took up, at the same time, an additional occupational activity as a self-employed person in Switzerland accounting for 3% of his total income constitutes a ‘change in the relevant situation’ within the meaning of Article 87(8) of Regulation No 883/2004.

49 In that respect, it suffices to note, as the European Commission contended in its written observations, that in connection with the EEA Agreement, which governs, inter alia, the relations between the Republic of Austria and the Principality of Liechtenstein, the Swiss Confederation is a third State. Consequently, the pursuit of an occupational activity in Switzerland by the person concerned is irrelevant in the assessment to be carried out.

50 It follows that, even though W M pursued an additional occupational activity as a self-employed person in Switzerland during the period at issue, the relevant situation before Regulation No 883/2004 entered into force remained unchanged. W M should, therefore, pursuant to Article 87(8) of that regulation, continue to be subject to Austrian social security legislation.

51 Secondly, as regards the AFMP, which governs, inter alia, situations involving the Republic of Austria and the Swiss Confederation, it is important to note that, in the present case, W M simultaneously pursued, during the period at issue, occupational activities as a self-employed person in Austria and in Switzerland accounting for approximately 19% and 3%, respectively, of his income. Even though the occupational activity pursued by the person concerned in Austria, where he resided, is greater, it represented less than 25% of his income. Therefore, W M could not, in accordance with Article 14(8) of Regulation No 987/2009, be subject to Article 13(2)(a) of Regulation No 883/2004, but should, in accordance with Article 13(2)(b) of that regulation, be subject to the legislation of the Member State where the centre of interest of his activities was situated.

52 Given that, during the period at issue, W M resided in Austria and pursued, with regard to the AFMP, the majority of his activities there, the centre of interest of his activities was in Austria. Accordingly, W M should be subject to Austrian social security legislation.

53 That finding cannot be called into question by the fact that, during the period at issue, W M also pursued, at the same time, an occupational activity as a self-employed person accounting for 78% of his income in Liechtenstein. As the Commission stated in its written observations, that fact is not relevant with regard to the AFMP since, in the context of that agreement, the Principality of Liechtenstein is a third State.

54 It follows that, in accordance with the relevant provisions of Regulations No 1408/71 and No 883/2004, which are applicable to the situation at issue in the main proceedings under the EEA Agreement and the AFMP, which must be examined separately, the same social security legislation is applicable to W M during the period at issue, namely Austrian legislation, with the result that a single certificate must be issued by the competent authorities.

55 Consequently, the answer to the questions raised is that Regulation No 1408/71 and Regulation No 883/2004 in conjunction with Regulation No 987/2009 must be interpreted as being applicable, under the EEA Agreement and the AFMP, to a situation in which an EU citizen – who simultaneously pursues occupational activities as a self-employed person in an EU Member State and an EFTA State, which is a party to the EEA Agreement – takes up an additional occupational activity as a self-employed person in Switzerland. It is necessary, in accordance with the relevant provisions of those regulations, to determine the applicable social security legislation separately: on the one hand, within the context of the EEA Agreement and, on the other, within the context of the AFMP.

Costs

56 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.