The European Court of Justice has delivered its judgement in joined cases van den Berg and Giesen (C-95/18) and Franzen(C-96/18).

Summary of the cases and questions referred for a preliminary ruling

The questions referred to the ECJ are related to the application of the principle of "single applicable legislation", in the context of minor occupational activities, not exceeding a certain threshold in terms of hours or income, in a Member State other than the Member State of residence.

In Franzen (C-382/13), the ECJ ruled that:

• “Article 13(2)(a) of Regulation No 1408/71 should be interpreted as meaning that a resident of a Member State 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 Member State of employment both on the days on which he works as an employee and on the days on which he does not”
• ”In circumstances such as those in the main proceedings, Article 13(2)(a) of Regulation No 1408/71 did not preclude a migrant worker, who is subject to the legislation of the Member State of employment, from receiving, by virtue of national legislation of the Member State of residence, an old-age pension and family allowances from the latter State”.

However, the ECJ did not answer whether or not the Member State of residence, has the obligation (and not merely the option), to grant social benefits to a migrant worker, for the risks for which the legislation of the Member State of employment(competent  MS), does not provide coverage or benefits.

The ECJ is essentially called to re-examine that question.

Opinion delivered by Advocate General Sharpston

The AG underlines that:

• The principle of a single applicable legislation cannot be challenged, however is conditional on the observance of the principle of proportionality
• Art 45TFEU “precludes any national measure, of the host Member State or of the Member State of origin, which is capable of hindering or rendering less attractive the exercise by Union nationals of the fundamental freedom guaranteed by that article” (paragraph 34). The exercise of the freedom of movement may not give rise to a disadvantage for the EU national exercising such a right
• The principle of proportionality grants the right balance between the principle of a single applicable legislation, and the obligation to facilitate the pursuit of occupational activities throughout the EU, without suffering any disadvantage
• The way to grant such a balance is notably the option given to the MS of residence, to grant benefits.
• Waiving such an option, goes beyond the limits permitted under the principle of proportionality

The AG suggests an agreement under Article 17 Regulation 1408/71(Article 16 Regulation 883/2004), notably,  voluntary affiliation (voluntary contributions paid by the individuals concerned),and an arrangement between the Member States regarding the proportion of contributions normally paid by the employer.

The ECJ ruling

 Articles 45 and 48 TFEU must be interpreted as not precluding legislation of a Member State under which a migrant worker residing in the territory of that Member State, subject to the legislation of the Member State of employment on the basis of Article 13  Regulation  1408/71, is not insured under the social insurance scheme of the MS of residence,  even though under the legislation of the Member State of employment, the worker is not entitled to an old-age pension or family allowances.

Article 13 Regulation 1408/71, must be interpreted as meaning that precluding the Member State of residence (non -competent MS) , from conditioning  the granting of a right to an old-age pension, by the obligation to contract an insurance involves payment of compulsory contributions.