ECJ- social security legislation applicable to cross-border temporary agency workers

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On 17 March, AG Pitruzzella delivered his Opinion on the request for a preliminary ruling submitted by Raad van bestuur van de Sociale verzekeringbank (the Netherlands) on the social security legislation applicable to temporary agency workers residing in a Member State and pursuing an employment activity in another Member State (C-713/20, EU:C:2022:197).

The question referred to the ECJ for preliminary ruling relates to periods between temporary work assignments (when no temporary agency work is performed, and the employment relationship with the temporary work agency is terminated).

The referring court is essentially asking whether the legislation of the Member State in which the worker pursues the activity as an employed person is applicable [Art 11.3(a) Regulation 883/2004], or the legislation of the Member State of residence [Art 11.3(e)] the said regulation.

The AG recalls that it must be distinguished between coordination of social security systems (Title II of Regulation 883/2004), and existence of a right to social security benefits:

  • the provisions of Title II of Regulation 883/2004 are mandatory for the Member States, and constitute a complete and uniform system of conflict of laws rules that are intended to grant that persons are covered by the legislation of one Member State at a time, and to ensure that persons falling within the scope of that regulation are not left without social security protection (as a consequence of the absence of legislation that would apply to them)
  • it is in principle for the legislation of each Member State to lay down the conditions governing the existence of a right to social security benefits

Art 11.3(a) reads as follows: “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”.

The concepts of employed and self-employed persons are defined by Art 1 (a) and (b) Regulation 883/2004: “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”.

In follows that in the cases at hand, the eventual existence of an employment relationship treated as such for the purpose of the Dutch social security legislation, represents the essential criterion in determining the legislation applicable.

Or the referring court has expressly stated that during periods between temporary work assignments, the situation of the persons concerned is not treated as employment activity for the purpose of the Dutch social security legislation. Moreover, the persons concerned have not received cash benefits because or as a consequence of their activity as an employed person in the meaning of Art 11.2 Regulation 883/2004.

Having regard to the above considerations, pursuant to Art 11.3(e) Regulation 883/2004, the legislation of the Member State of residence is applicable to the persons concerned by the cases at hand.

The AG rules out the interpretation following which the concept of “pursuing an activity as an employed person” in the meaning of Art 11 Regulation 883/2004, encompasses periods during which the employment relationship is not suspended, but terminated. Such an interpretation would give rise to legal uncertainty (it is not possible to immediately identify the legislation applicable, at the time of occurrence, and with the required certainty).

To that extent, AG Pitruzzella disagrees with the EU Commission on the necessity to determine certain criteria would give rise to an objective determination of the situations in which the concept of pursuing an activity as an employed person could encompass periods during which the employment relationship is terminated (characteristics of the employment relationship, the length of the intervals between work assignments, the orientation towards a single market……).

The AG recalls that: “EU law does not guarantee workers that moving to a Member State other than their State of origin remains neutral in terms of social security: given the disparities between the schemes and legislation of the Member States, such a transfer may, depending on the case, be more or less advantageous for the person concerned in this respect.”

In simple words, Regulation 883/2004 ensures that persons falling within the scope of that regulation are not left without social security protection as a consequence of the absence of legislation that would apply to them, however, does not ensure the right to social protection per se.

As regards the excessive “fragmentation” of the legislation applicable to a worker, the AG takes the view that “when it aimed to prevent such fragmentation, the Union legislator did so expressly” (reference is made to Art 12 Regulation 883/2004).

Remarks:

It appears to be evident that the ECJ judgments in Franzen (C-382/13, EU:C:2015:261), Van den Berg and Others (C-95/18 and C-96/18, EU:C:2019:76), and the other judgements invoked by the parties, give rise to contradictory interpretations.

In any circumstances, the AG is excessively brief when addressing “how those principles should be interpreted and applied in cases involving intermittent temporary agency work” (point 26 Summary of the request for a preliminary ruling pursuant to Article 98(1) of the Rules of Procedure of the Court of Justice).

Intermittence represents an intrinsic element of temporary agency work, and the excessive fragmentation of the legislation applicable merely an open debate.

Will the ECJ follow the Advocate General Opinion?

Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides in-depth advice on rights and obligations triggered by the cross-border element of a given legal situation. Our know-how is built on an extensive experience in EU law and is supported by a network of partners across the EU. Social security coordination : • Autonomous application of the social security coordination regulations and ECJ case-law, to any situation involves a cross-border element EU Company law : • Establishment -permanent activities • Establishment -self-employment activities International Private Law : • Law applicable to the employment relationship Labour and employment law : • Freedom of movement of workers-equal treatment, access to social benefits • Employment contracts and termination of employment • Working conditions • Employee benefits • Transfer of undertakings • Authorisations of work for third-country nationals Special regimes : • Posted workers • Frontier workers • Highly mobile workers • Employment of record • Intra-EU mobility of third-country nationals