Overview of Recent Cases before the Court of Justice of the European Union (January–June 2015)
| DOI | 10.1177/138826271501700405 |
| Date | 01 December 2015 |
| Author | Anne Pieter van der Mei |
| Published date | 01 December 2015 |
| Subject Matter | Recent Case Law |
European Jour nal of Social Sec urity, Volume 17 (2015), No. 4 481
OVERVIEW OF RECENT CASES
BEFORE THECOURT OF JUSTICE
OFTHEEUROPEANUNION
(JANUARY-JUNE 2015)
A P M*
In the rst part of 2015 the Court of Justice (CoJ) of the European Union (EU)
delivered a comparatively large number of rulings relevant for the eld of social
security. None of the twelve ruli ngs selected for purposes of th is overview can be
labelled as landma rk judgments introducing new principles or overruling existing
ones. Yet, virtual ly all of the judgments do bring i mportant clari c ations by specifying
previously recognised pri nciples or interpretations or by applying these i n cases
involving other factual circumstances. e most interesting judgments concern the
rules determin ing the applicable legislation (Franzen, Kik and Evans), the application
of Regulations 1408/71 and 883/2004 to ‘socially earmarked ta xes’ (de Ruyter), the
continued legal signi cance of bilatera l social security agreements concluded before
the aforementioned Regulations became applicable to the States concerned (Balasz),
the right to unemployment bene ts for f rontier workers (Mertens), the right of Turkish
nationals to export of special non-contributory cash bene ts (SNCBs – Demirci) and
the principle of non-discrimination on grounds of gender in social security matters
(Cachaldora Fernández).
1. RULES DETERMINING THE APPLICABLE LEGISLATION
1.1. THE SINGLE STATE RULE AND EXCLUSIVE EFFECT: FRANZEN
e rules determin ing the applicable legislation, as contained i n Title II of Regulations
1408/71 and 883/2004, constitute the hard core of the co ordination regime. e r ules
rest on the single State principle: persons covered by the co ordination regime shall be
subject to the legislation of one State only. To guarantee this, t he rules determining t he
applicable legislation produce a so-ca lled exclusive e ect. In t he classic understanding,
such an e ect implies that the Member State de signated as the competent State must
* Ass ocia te P rofe ssor in E U Law, Maa str icht Cent re fo r Eu rope an L aw. Ad dre ss: P.O . Box 616, 62 00 M D
Maastricht, e Netherla nds; phone: +31 43 3884832; e-mail : ap.vandermei@maastr ichtuniversity.nl .
Anne Pieter va n der Mei
482 Intersentia
apply its legislation, whereas a non-competent Member State is prohibited from doing
so. In recent years, however, the CoJ has relaxed the si ngle State principle by holding
in cases like Bosmann,1 Hudzinski2 and B.3 that non-competent States ret ain the
possibility of granting bene ts. Policy makers, commentators and others worki ng on
soc ial secu rit y coo rdin atio n were awai tin g the rul ing i n Franzen as a case in which t he
CoJ might relax the sing le State principle even further.
Franzen concerned Dutch nationals liv ing in the Netherlands who had taken up
part-time work and on-call work respe ctively in Germany. Because of the low number
of working hours, the persons concerned were, on t he basis of German legislation, not
entitled to cover under any socia l security scheme, with the exception of insurance
against accidents. e persons applied for family bene ts and old-age bene ts
respectively in the Net herlands, but their applications were rejected. e Netherlands
social secur ity institution took t he view that the persons concerned were, according
to the lex loci labori s rule,4 subject to German legislation. e ‘Bosmann case law’
did not come into play as the persons concerned were not entitled to bene ts under
Netherlands legislation, whic h speci ca lly excludes persons working in other Member
States from social insurance cover (‘exclusion clause’). e Highest Social Security
Court decided to send prelimi nary questions to the CoJ.
First, the court w ished to know whether a person who works for a few days each
month on the basis of an on-cal l contract in the territory of another Member State i s
subject to the social sec urity legislation of that State and, i f so, whether that subjection
also continues on the days that no employment activities are performed. e CoJ
answered in the a rmative. Referring to its ruling i n Kits van Heijningen,5 which
involved part-time work, the CoJ establ ished that the amount of time devoted to work
is irrelevant for determining the application of Regu lation 1408/71. e legislation
of the Member State of employment continues to be applicable for as long as the
person concerned is employed in the territory of that Member State. To that end, the
existence of an employment contract a nd the type of employment, whet her partial
or casual, or even the number of hours worked by the employee, are irrelevant. e
person concerned is subject to the legislat ion of the State of employment both on t he
days on which he pursues an act ivity and the days on which he does not.6
1 Brigitte Bosmann v Bunde sagentur für Arbeit – Familienkasse Aachen, Case C-352/06,
ECLI:EU:C:2008:290.
2 Waldemar Hudzinski v Agentur fü r Arbeit Wesel – Familienka sse nd Jaroslaw Wawrzy niak v
Agentur für Arbeit Mön chengladbac h – Familienkas se, Joined case s C-611/10 and C-612/10,
ECLI:EU:C:2012:339. See va n der Mei (2012).
3 Ministerstvo práce a soci álních věcí v B, Cas e C-394/13, ECLI:EU:C:2014:2199. See van de r Mei
(2014).
4 Article13(2)(a) Regulation 1408/71.
5 Bestuur van de Sociale Verze keringsbank v M . G. J. Kits van Heijningen , Case C-2/89,
ECLI:EU:C:1990:183
6 C. E. Franzen and Others v R aad van bestuur van d e Sociale verz ekeringsba nk, Case C-382/13,
ECLI:EU:C:2015:261.
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