Recent case law from the ECJ

1. Recent case law from the ECJ 9.10.2012 Bratislava Slovakian trESS seminar Essi Rentola

2. trESS trESS C-106/11 M.J. Bakker Compulsory affiliation to the Dutch social insurance scheme C-611/10 Waldemar Hudzinski and Jaroslaw Wawrzyniak Child benefit in Germany C-522/10 Doris Reichel-Albert 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 Concerning equating income earned in another country in the determination of entitlement to family benefits C-115/11 Format Concerning the definition of a person ‘normally’ employed in the territory of two or more Member States.

3. 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

4. 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?

5. 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.

6. Case C-611/10 Waldemar Hudzinski v AgenturfürArbeitWesel - Familienkasse and Jaroslaw Wawrzyniak v AgenturfürArbeitMönchengladbach – Familienkasse Facts: • MrHudziński and MrWawrzyniak, 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 MrHudziński, or under Article 14(1)(a) of that regulation, in the case of MrWawrzyniak.

7. Case C-611/10 Waldemar Hudzinski v Agentur für Arbeit Wesel - Familienkasse and Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach – Familienkasse • 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?

8. 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.

9. Case C-611/10 Waldemar Hudzinski v Agentur für Arbeit Wesel - Familienkasse and Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach – Familienkasse ECJ: • 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 . • Residenceof 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.

10. 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.

11. (Case C-522/10) Doris Reichel-Albert v Deutsche Rentenversicherung Nordbayern Facts: • MrsReichel-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, MrsReichel-Albert, her spouse and their children were officially returned to reside in Germany. By decisions in 2008, the DRN rejectedMrsReichel-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.

12. 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 rationetemporis 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.

13. Case C-522/10 Doris Reichel-Albert v Deutsche Rentenversicherung Nordbayern ECJ: • German legislation was applicable and, as regards the crediting of periodsof 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).

14. 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.

15. 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

16. 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?

17. 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

18. 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).

19. 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

20. 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

21. 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).

22. Outlook • ECJ, C-433/11, Jeltes et al. • Relevance of Miethejudgmentfor Regulation 883/2004 (special solution for non-typical 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