Balandin and Others (Extension of coordination of social security systems to citizens of third countries residing legally in the territory of a Member State - Judgment) [2019] EUECJ C-477/17 (24 January 2019)

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Balandin and Others (Extension of coordination of social security systems to citizens of third countries residing legally in the territory of a Member State - Judgment) [2019] EUECJ C-477/17 (24 January 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C47717.html Cite as: [2019] EUECJ C-477/17, ECLI:EU:C:2019:60, [2019] WLR(D) 37, EU:C:2019:60, [2019] PTSR 1180

(Reference for a preliminary ruling - Social security - Regulation (EU) No 1231/2010 - Applicable legislation - A1 certificate - Article 1 - Extension of coordination of social security systems to citizens of third countries residing legally in the territory of a Member State - Legal residence - Concept)

REQUEST for a preliminary ruling under Article 267 TFEU from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands), made by decision of 4 August 2017, received at the Court on 8 August 2017, in the proceedings

composed of R. Silva de Lapuerta, Vice-President of the Court, acting as President of the First Chamber, J.-C. Bonichot, E. Regan (Rapporteur), C.G. Fernlund and S. Rodin, Judges,

having regard to the written procedure and further to the hearing on 4 July 2018,

- the Raad van bestuur van de Sociale Verzekeringsbank, by H. van der Most, acting as Agent,

- Holiday on Ice Services BV, I. Lukachenko and D. Balandin, by F.J. Webbink, advocaat,

- the Netherlands Government, by M. Noort, M. Bulterman and J. Langer, acting as Agents,

- the Czech Government, by M. Smolek, J. Vláčil and J. Pavliš, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 27 September 2018,

1 This request for a preliminary ruling concerns the interpretation of Article 1 of Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality (OJ 2010 L 344, p. 1).

2 The request has been made in proceedings between the Raad van bestuur van de Sociale Verzekeringsbank (Management Board of the Social Insurance Bank, Netherlands; ‘the Svb’), and D. Balandin, I. Lukachenko and Holiday on Ice Services BV, formerly Stage Entertainment Touring Services BV (‘HOI’), concerning the refusal of the Svb to issue to Mr Balandin and Mr Lukachenko, as third country nationals in which HOI is present, a certificate on the basis of Article 19(2) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1) (‘the A1 certificate’).

‘(6) 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)] and Regulation [No 987/2009] significantly update and simplify the coordination rules for insured persons as well as social security institutions. For the latter, the updated coordination rules aim to accelerate and facilitate the processing of data on insured persons’ rights to benefits and to reduce the corresponding administrative costs.

(7) Promoting a high level of social protection and raising the standard of living and the quality of life in the Member States are objectives of the Union.

(8) In order to avoid a situation where employers and national social security bodies have to manage complex legal and administrative situations concerning only a limited group of persons, it is important to enjoy the full benefits of modernisation and simplification in the field of social security by making use of a single legal coordination instrument combining Regulation [No 883/2004] and Regulation [No 987/2009].

(10) The application of Regulation [No 883/2004] and Regulation [No 987/2009] to nationals of third countries who are not already covered by those Regulations solely on the ground of their nationality must not give them any entitlement to enter, to stay or to reside in a Member State or to have access to its labour market. Accordingly, the application of Regulation [No 883/2004] and Regulation [No 987/2009] should be without prejudice to the right of the Member States to refuse to grant, to withdraw or to refuse to renew a permit to enter, to stay, to reside or to work in the Member State concerned, in accordance with the law of the Union.

(11) Regulation [No 883/2004] and Regulation [No 987/2009] should, by virtue of this Regulation, be applicable only in so far as the person concerned is already legally resident in the territory of a Member State. Legal residence should therefore be a prerequisite for the application of those Regulations.’

‘Regulation [No 883/2004] and Regulation [No 987/2009] shall apply to nationals of third countries who are not already covered by those Regulations solely on the ground of their nationality, as well as to members of their families and to their survivors, provided that they are legally resident in the territory of a Member State and are in a situation which is not confined in all respects within a single Member State.’

5 Article 1(j) and (k) of Regulation No 883/2004, 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’), provides as follows:

‘A person who normally pursues an activity as an employed person in two or more Member States shall be subject:

(a) to the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in that Member State; or

(b) if he/she does not pursue a substantial part of his/her activity in the Member State of residence:

(i) to the legislation of the Member State in which the registered office or place of business of the undertaking or employer is situated if he/she is employed by one undertaking or employer; or

(ii) to the legislation of the Member State in which the registered office or place of business of the undertakings or employers is situated if he/she is employed by two or more undertakings or employers which have their registered office or place of business in only one Member State; or

(iii) to the legislation of the Member State in which the registered office or place of business of the undertaking or employer is situated other than the Member State of residence if he/she is employed by two or more undertakings or employers, which have their registered office or place of business in two Member States, one of which is the Member State of residence; or

(iv) to the legislation of the Member State of residence if he/she is employed by two or more undertakings or employers, at least two of which have their registered office or place of business in different Member States other than the Member State of residence.’

‘1. A person who pursues activities in two or more Member States shall inform the institution designated by the competent authority of the Member State of residence thereof.

2. The designated institution of the place of residence shall without delay determine the legislation applicable to the person concerned, having regard to Article 13 of ... Regulation [No 883/2004] and Article 14 of the [present] Regulation. That initial determination shall be provisional. The institution shall inform the designated institutions of each Member State in which an activity is pursued of its provisional determination.’

‘At the request of the person concerned or of the employer, the competent institution of the Member State whose legislation is applicable pursuant to Title II of [Regulation No 883/2004] shall provide an attestation that such legislation is applicable and shall indicate, where appropriate, until what date and under what conditions.’

9 Article 2 of Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (OJ 2011 L 343, p. 1) provides, under the heading ‘Definitions’.

(b) “third-country worker” means a third-country national who has been admitted to the territory of a Member State and who is legally residing and is allowed to work in the context of a paid relationship in that Member State in accordance with national law or practice;

(b) third-country nationals who have been admitted to a Member State for purposes other than work in accordance with Union or national law, who are allowed to work and who hold a residence permit in accordance with [Council] Regulation (EC) No 1030/2002 [of 13 June 2002 laying down a uniform format for residence permits for third-country nationals (OJ 2002 L 157, p. 1)]; and

(c) third-country nationals who have been admitted to a Member State for the purpose of work in accordance with Union or national law.

(i) who are long-term residents in accordance with [Council] Directive 2003/109/EC [of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44)];

3. Member States may decide that Chapter II does not apply to third-country nationals who have been either authorised to work in the territory of a Member State for a period not exceeding six months ...

‘1. Third-country workers as referred to in points (b) and (c) of Article 3(1) shall enjoy equal treatment with nationals of the Member State where they reside with regard to:

(b) by limiting the rights conferred on third-country workers under point (e) of paragraph 1, but shall not restrict such rights for third-country workers who are in employment or who have been employed for a minimum period of six months and who are registered as unemployed.

In addition, Member States may decide that point (e) of paragraph 1 with regard to family benefits shall not apply to third-country nationals who have been authorised to work in the territory of a Member State for a period not exceeding six months, to third-country nationals who have been admitted for the purpose of study, or to third-country nationals who are allowed to work on the basis of a visa.

12 The Beleidsregels van de Svb met betrekking tot de onderdanen van landen buiten de Europese Unie (SB2124) (Guidelines of the Svb relating to nationals of non-EU countries (SB2124)) are worded as follows:

‘The scope ratione personae of Regulation [No 883/2004] is in principle restricted to the nationals of EU Member States, of [European Economic Area (EEA)] countries and of the Swiss Confederation. Third-country nationals only fall within the scope ratione personae of that regulation if they have been granted refugee status or in their capacity as family members or surviving dependants. However, Regulation [No 1231/2010] provides that Regulation [No 883/2004] shall nevertheless apply to nationals of third countries who are not already covered by that Regulation solely on the ground of their nationality, if such nationals are legally resident in the territory of a Member State and move legitimately within the Union.

The term legal residence is not defined in Regulation [No 1231/2010]. The policy of the Svb is to assume legal residence in the Netherlands if such residence is lawful within the meaning of Article 8 of the [Vreemdelingenwet 2000 (Law on Foreign Nationals 2000)], with the proviso that the Svb will not assume legal residence if a foreign national is staying in the Netherlands pending an application for first admission.

It follows from the title, recitals and provisions of Regulation [No 1231/2010] that the third country nationals must satisfy in the same manner as EU nationals the criterion relating to travel as defined in the [Beleidsregels van de Svb met betrekking tot de Verplaatsingscriterium (SB2120) [Guidelines of the Svb concerning the criterion relating to travel (SB2120)]].

13 According to the Guidelines of the Svb concerning the criterion relating to travel (SB2120), Regulation No 883/2004 applies to persons with links to several Member States. It cannot apply in purely domestic situations or in situations where the person concerned only has links to a third State and a single Member State.

14 According to the Beleidsregels van de Svb met betrekking tot de territoriale werkingssfeer (SB2135) (Guidelines of the Svb concerning the territorial scope (SB2135)), Regulation No 883/2004 applies in principle only where a person resides and works in the territory of the European Union. However, it follows from the case-law of the Court that that regulation may apply if a person falls within its scope ratione personae but resides or works outside the territory of the European Union.

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

15 Mr Balandin and Mr Lukachenko are third country nationals employed by HOI, a company legally established in Amsterdam (Netherlands) and with its offices in Utrecht (Netherlands), which organises, between October and May each year, ice-skating shows in different countries, including certain Member States.

16 All workers employed by HOI meet in the Netherlands for a few weeks in order to prepare for the shows. Some of the skaters then perform in a number of shows in the Netherlands, while the rest perform in shows in various Member States, in particular in France and Germany. During the period of training and, where applicable, performing, all the third-country nationals stay legally in the Netherlands, with work permits being issued to them where necessary. They also reside legally in the other Member States where shows take place, often on the basis of a visa known as a ‘Schengen visa’.

17 For many years, the Svb issued A1 certificates to third country nationals employed by HOI establishing that they were covered by the social security legislation of the Netherlands and that the payment of compulsory contributions also took place in the Netherlands. However, from the 2015/2016 season onwards, the Svb refused to issue such certificates, arguing that they had been incorrectly issued in previous years. It thus refused HOI’s applications in that regard.

18 After consultation, in particular as part of the interim relief granted by the voorzieningenrechter Amsterdam (court hearing interim applications, Amsterdam, Netherlands), the Svb finally issued A1 certificates valid until 1 May 2016. However, the 2015/2016 season ended on 22 May 2016, so that a dispute still exists in respect of those final weeks of May 2016. In a judgment of 28 April 2016, the rechtbank Amsterdam (District Court, Amsterdam, Netherlands) held, particularly on the basis of the principle of legitimate expectations, that the Svb should have issued A1 certificates covering the last weeks of that season. Svb appealed against that judgment to the referring court.

19 It notes that Mr Balandin and Mr Lukachenko do not directly fall within the scope ratione personae of Regulation No 883/2004, as defined in Article 2 thereof, since they are neither nationals of a Member State or stateless persons or refugees. They may be covered by the provisions of that regulation only pursuant to Regulation No 1231/2010 which extended under certain conditions the scope of Regulations Nos 883/2004 and 987/2009 to nationals of third countries who are not already covered by those regulations solely on the ground of their nationality.

20 According to the referring court, it is not disputed that Mr Balandin and Mr Lukashenko were not residents of the Netherlands or another Member State but were staying and working temporarily within the EU, within the meaning of Article 1(k) of Regulation No 883/2004. As a result, there is some uncertainty as to whether only third-country nationals who are actually residents, within the meaning of Article 1(j) of Regulation No 883/2004, may rely on Article 1 of Regulation No 1231/2010, or whether third-country nationals in a situation such as that of Mr Balandin and Mr Lukachenko may also do so.

21 The referring court takes the view that the application of that provision is problematic because of differences between the various language versions, the term ‘legal residence’ appearing to correspond at times to a stay which is not necessarily lengthy, at times to a stay presenting a certain degree of permanence.

22 In these circumstances, the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands) decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

‘Must Article 1 of Regulation No 1231/2010 be interpreted as meaning that third-country nationals, who live outside the European Union, but who work in various Member States on a temporary basis for an employer who is established in the Netherlands, may invoke (Title II of) Regulation No 883/2004 and Regulation No 987/2009?’

23 By its question, the referring court asks, in essence, whether Article 1 of Regulation No 1231/2010 must be interpreted as meaning that third country nationals, such as those at issue in the main proceedings, who temporarily reside and work in different Member States in the service of an employer established in a Member State, may rely on the coordination rules laid down by Regulations Nos 883/2004 and 987/2009 in order to determine the social security legislation to which they are subject.

24 As a preliminary point, it should be recalled that, pursuant to Article 1 of Regulation No 1231/2010, Regulations Nos 883/2004 and 987/2009 are to apply to nationals of third countries who are not already covered by those regulations solely on the ground of their nationality, as well as to members of their families and to their heirs, provided that they are legally resident in the territory of a Member State and are in a situation which is not confined in all respects within a single Member State.

25 Regulation No 1231/2010 thus seeks to extend the personal scope of Regulations Nos 883/2004 and 987/2009 to nationals of third countries who are not already covered by those regulations solely on the ground of their nationality.

26 As is apparent from recital 7 thereof, by extension, Regulation No 1231/2010 contributes to the European Union’s objective of promoting a high level of social protection, by ensuring that third country nationals enjoy, as stated in recitals 6 and 8 thereof, the benefits of the modernisation and simplification of the coordination rules in the field of social security by Regulations Nos 883/2004 and 987/2009 for insured persons as well as social security institutions.

27 In the present case, it is not disputed that the persons concerned in the main proceedings, in their capacity as third country nationals, are not already covered by Regulations Nos 883/2004 and 987/2009 by reason of their nationality, since they are neither nationals of Member States, or stateless persons or refugees. Furthermore, it is not disputed that those persons are not in a situation which is confined in all respects within a single Member State, since they perform in some of the ice-skating events in Member States other than the Kingdom of the Netherlands.

28 In those circumstances, it appears that the persons concerned in the main proceedings are entitled, under Article 1 of Regulation No 1231/2010, to benefit from the application of Regulations Nos 883/2004 and 987/2009, provided that they are ‘lawfully resident’ in the territory of a Member State.

29 It follows both from the requirements of the uniform application of EU law and from the principle of equality that the terms of a provision of EU law which, like Article 1 of Regulation No 1231/2010, contains no express reference to the law of the Member States in order to determine its meaning and scope must normally be interpreted autonomously and uniformly throughout the European Union (see, to that effect, judgment of 19 September 2013, Brey, C-140/12, EU:C:2013:565, paragraph 49 and the case-law cited).

30 The referring court takes the view that the exact scope of the concept of ‘legal residence’ within the meaning of that provision is uncertain, given the divergence between the language versions of the directive. Thus, although the Dutch version uses the term ‘verblijven’, which appears to refer to a stay which is not necessarily long term, the versions in German or English, which respectively mention ‘rechtmässige Wohnsitz’ and ‘legally resident’, could be understood as referring to a stay entailing a degree of permanence.

31 In that regard, it must be borne in mind that it is settled case-law of the Court that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions in that regard. Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all EU languages. Where there is a divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part (see judgment of 20 December 2017, Gusa, C-442/16, EU:C:2017:1004, paragraph 34 and the case-law cited).

32 As regards, first, the legal context of which Regulation No 1231/2010 forms part, it should be recalled that, as is already apparent from paragraph 25 of the present judgment, that regulation is intended to extend the application of Regulations Nos 883/2004 and 987/2009 to nationals of third countries who do not benefit therefrom solely on the grounds of their nationality. Since Article 1(j) of Regulation No 883/2004 defines the concept of ‘residence’, it is necessary to determine, first of all, whether the concept of ‘legally resident’ referred to in Article 1 of Regulation No 1231/2010 has the same scope as that of ‘residence’ set out in Article 1 of Regulation No 883/2004.

33 According to Article 1(j) of Regulation No 883/2004, the term ‘residence’ means the place where a person habitually resides. It is distinct from the concept of ‘stay’ which Article 1(k) of that regulation defines as temporary residence. The residence of the person concerned, within the meaning of Article 1(j) of the regulation, is therefore subject to a factual assessment and its determination is made on the basis of the place where the person’s habitual centre of interest is located (see, to that effect, judgment of 5 June 2014, I, C-255/13, EU:C:2014:1291, paragraph 44 and the case-law cited).

34 However, it should be noted that the concept of ‘residence’, within the meaning of that regulation, and that of ‘legal residence’ within the meaning of Regulation No 1231/2010, are not used for the same purposes in both regulations.

35 As is apparent from recital 15 thereof, the objective of Regulation No 883/2004 is to prevent the persons concerned from being left without social security cover because there is no legislation which is applicable to them, and to ensure that the persons concerned are subject to the social security scheme of only one Member State, so that the complications arising from more than one system of national legislation being applicable are avoided (see, to that effect, judgment of 5 June 2014, I, C-255/13, EU:C:2014:1291, paragraphs 40 and 42 and the case-law cited).

36 In that context, the distinction between the concept of ‘residence’ and that of ‘stay’ is intended, as noted by the Advocate General in point 63 of his Opinion, to determine the Member State to which EU citizens are most closely connected and to whose legislation they are therefore subject.

37 In contrast, as has already been noted in paragraph 25 of the present judgment, Regulation No 1231/2010 seeks to extend the personal scope of Regulations Nos 883/2004 and 987/2009 to nationals of third countries who are not already covered by those regulations solely on the ground of their nationality.

38 In that context, as is apparent from recital 11 of Regulation No 1231/2010, the concept of ‘legal residence’ within the meaning of that regulation, reflects the EU legislature’s decision to submit the extension of the personal scope of Regulations Nos 883/2004 and 987/2009 to nationals of third countries subject to the prior condition that they remain lawfully on the territory of the relevant Member State. Thus, that concept differs from that of ‘residence’ within the meaning of Article 1(j) of Regulation No 883/2004.

39 This is also clear from recital 10 of Regulation No 1231/2010, which states that the application of Regulations Nos 883/2004 and 987/2009 to those nationals, on the one hand, should not give them any entitlement to enter, to stay, to reside, or to have access to the labour market in a Member State and, on the other, should not affect the right of Member States to refuse to grant or to withdraw a permit to enter, stay, reside or work in their respective territories or to refuse the renewal thereof, in accordance with EU law.

40 This choice of a criterion based on the legal conditions for the presence of third-country nationals in the territory of a Member State is confirmed by the travaux préparatoires relating to Regulation No 1231/2010. It is apparent from page 6 of the explanatory memorandum to the Proposal for a Council Regulation extending the provisions of Regulation No 883/2004 and Regulation No 987/2009 to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality (COM(2007) 439 final) that such nationals must be legally resident on the territory of a Member State and, consequently, have a temporary or permanent right of residence therein. This explanatory memorandum also specifies that, in order to qualify for the rights derived from the provisions of Regulation No 883/2004 in a second Member State, those nationals do not necessarily have to satisfy the residency requirement, but may simply move, provided that their presence within the territory of that State complies with its legislation on entering and staying therein.

41 Therefore, both the duration of the presence of those nationals on the territory of a Member States and the fact that they retain their centre of interest in a third country are not relevant, as such, in order to establish whether they are ‘legally resident in the territory of a Member State’ within the meaning of Article 1 of Regulation No 1231/2010.

42 That interpretation is borne out by Directive 2011/98, which establishes, inter alia, a common set of rights for third-country workers legally residing in a Member State. As is clear from Article 12(1)(e) and (2)(b) of that directive, read in conjunction with Article 2(b) and Article 3(1)(b) and (c), (2)(i) and (3) of that directive, third country nationals admitted for work, even temporarily, in a Member State, in principle, benefit from equal treatment in respect of branches of social security within the meaning of Regulation No 883/2004.

43 It is clear that such an interpretation is better able to ensure the attainment of the objectives set out in paragraph 26 of this judgment.

44 In the present case, it should be noted that it is apparent from the order for reference that the persons concerned in the main proceedings, who are employed by an undertaking established in the Netherlands, stay and work legally in the territory of the Member States in which they provide their shows.

45 It follows that third country nationals who are in the situation at issue in the main proceedings are entitled to the application of the coordination rules laid down by Regulations Nos 883/2004 and 987/2009 for the purposes of the determination of the applicable social security legislation.

46 In that regard, it must be recalled, in view of the factual findings made in paragraph 44 of the present judgment, that Article 13 of Regulation No 883/2004 provides, inter alia, connecting factors which are applicable to persons pursuing activities as an employed person in two or more Member States. It is for the referring court to ascertain whether one of those connecting factors is applicable to the persons concerned in the main proceedings in order to determine whether they are subject to Netherlands social security legislation. If that were the case, the competent institution of the Member State whose legislation becomes applicable is to certify, by issuing an A1 certificate, that the legislation is applicable and indicate, where applicable, until when and under what conditions, pursuant to Article 19(2) of Regulation No 987/2009.

47 In the light of the foregoing, the answer to the question referred is that Article 1 of Regulation No 1231/2010 must be interpreted as meaning that third country nationals, such as those at issue in the main proceedings, who temporarily reside and work in different Member States in the service of an employer established in a Member State, may rely on the coordination rules laid down by Regulations Nos 883/2004 and 987/2009 in order to determine the social security legislation to which they are subject, provided that they are legally staying and working in the territory of the Member States.

48 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.

Article 1 of Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality must be interpreted as meaning that third country nationals, such as those at issue in the main proceedings, who temporarily reside and work in different Member States in the service of an employer established in a Member State, may rely on the coordination rules laid down by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, and Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for Regulation No 883/2004, in order to determine the social security legislation to which they are subject, provided that they are legally staying and working in the territory of the Member States.

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