Sozialversicherungsanstalt (Migrant workers - Social security - Legislation applicable - Judgment) [2024] EUECJ C-329/23 (26 September 2024)

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

( Reference for a preliminary ruling – Migrant workers – Social security – Legislation applicable – Regulation (EEC) No 1408/71 – Articles 13 and 14a – Regulation (EC) No 883/2004 – Article 11 and Article 13(2) – Worker simultaneously pursuing an activity as a self-employed person in the territory of two or more States, including a Member State of the European Union, a State of the European Free Trade Association, which is a party to the Agreement on the European Economic Area, and the Swiss Confederation – Article 87(8) – Concept of ‘relevant situation’ – Agreement on the European Economic Area – Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons )

REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), made by decision of 9 May 2023, received at the Court on 25 May 2023, in the proceedings

composed of F. Biltgen (Rapporteur), President of the Chamber, N. Wahl and M.L. Arastey Sahún, Judges,

– the Austrian Government, by A. Posch, J. Schmoll and E. Samoilova, acting as Agents,

– the Czech Government, by J. Benešová, M. Smolek and J. Vláčil, acting as Agents,

– the Government of the Principality of Liechtenstein, by A. Entner-Koch and R. Schobel, acting as Agents,

– the European Commission, by F. Clotuche-Duvieusart and B.‑R. Killmann, acting as Agents,

– the EFTA Surveillance Authority, by M. Brathovde, E. Gromnicka and M.‑M. Joséphidès, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation, first, of Council Regulation (EC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004 (OJ 2004 L 100, p. 1) (‘Regulation No 1408/71’), and, secondly, of 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), 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’), and, in particular, of Article 13(2) and Article 87(8) of that regulation in conjunction with Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation No 883/2004 (OJ 2009 L 284, p. 1), as amended by Regulation No 465/2012.

2 The request has been made in proceedings between Sozialversicherungsanstalt der Selbständigen (social insurance institution for self-employed persons; ‘the SVS’) and W M concerning the SVS’s refusal to issue W M with a certificate stating that, for the period from 1 January 2017 to 31 March 2018 (‘the period at issue’), he was subject to the Austrian social security scheme.

3 The aim of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3), as amended by the Agreement on the participation of the Republic of Bulgaria and Romania in the European Economic Area (OJ 2007 L 221, p. 15) (‘the EEA Agreement’), is, according to Article 1 thereof, to promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area, referred to as the EEA. In order to attain those objectives, the association is to entail, in accordance with the provisions of the EEA Agreement, inter alia, the free movement of persons.

4 Article 2 of the EEA Agreement states in point (b) thereof that, for the purposes of that agreement, the term ‘[European Free Trade Association (EFTA)] States’ means Iceland, the Principality of Liechtenstein and the Kingdom of Norway and, in point (c) thereof, that the term ‘Contracting Parties’ means, concerning the European Union and the EU Member States, the European Union and the EU Member States, or the European Union, or the EU Member States.

5 Part III of the EEA Agreement, entitled ‘Free movement of persons, services and capital’, contains, in Chapter 1 thereof, entitled ‘Workers and self-employed persons’, Articles 28 to 30 of that agreement.

6 Article 28(1) of the EEA Agreement states that freedom of movement for workers is to be secured among EU Member States and EFTA States.

7 Article 29 of that agreement refers to Annex VI to that agreement in respect of the provision of freedom of movement for workers and self-employed persons in the field of social security.

8 Annex VI (Social security) to the EEA Agreement includes, pursuant to the Decision of the EEA Joint Committee No 76/2011 of 1 July 2011 amending Annex VI (Social security) and Protocol 37 to the EEA Agreement (OJ 2011 L 262, p. 33), entered into force on 1 June 2012, Regulation No 883/2004 and Regulation No 987/2009 as ‘acts referred to’. Before that date, it was Regulation No 1408/71 which was contained in that annex.

9 Annex VI to the EEA Agreement states, moreover, that, for the purposes of that annex and notwithstanding the provisions of Protocol 1 to that agreement, ‘the term “Member State(s)” contained in the acts referred to shall be understood to include, in addition to its meaning in the relevant [EU] acts, Iceland, Liechtenstein and Norway’.

10 Article 8 of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed in Luxembourg on 21 June 1999 (OJ 2002 L 114, p. 6; ‘the AFMP’), entitled ‘Coordination of social security systems’, is worded as follows:

‘The Contracting Parties shall make provision, in accordance with Annex II, for the coordination of social security systems with the aim in particular of:

11 Annex II to the AFMP, entitled ‘Coordination of social security schemes’, in the version applicable from 1 April 2012, provides in Article 1:

‘1. The contracting parties agree, with regard to the coordination of social security schemes, to apply among themselves the legal acts of the European Union to which reference is made in, and as amended by, section A of this Annex, or rules equivalent to such acts.

2. The term “Member State(s)” contained in the legal acts referred to in section A of this Annex shall be understood to include Switzerland in addition to the States covered by the relevant legal acts of the European Union.’

12 Section A of Annex II to the AFMP, entitled ‘Legal acts referred to’, includes, inter alia, Regulations No 883/2004 and No 987/2009, which have replaced Regulation No 1408/71.

13 In accordance with Article 2 thereof, entitled ‘Persons covered’, Regulation No 1408/71, which has been repealed and replaced with effect from 1 May 2010 by Regulation No 883/2004, applied to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors.

14 Title II of Regulation No 1408/71, entitled ‘Determination of the legislation applicable’, contained, inter alia, Articles 13 and 14a of that regulation.

‘1. Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

(b) a person who is self-employed in the territory of one Member State shall be subjected to the legislation of that State even if he resides in the territory of another Member State;

16 Article 14a of that regulation, entitled ‘Special rules applicable to persons, other than mariners, who are self-employed’, provided:

‘Article 13(2)(b) shall apply subject to the following exceptions and circumstances:

2. A person normally self-employed in the territory of two or more Member States shall be subject to the legislation of the Member State in whose territory he resides if he pursues any part of his activity in the territory of that Member State. If he does not pursue any activity in the territory of the Member State in which he resides, he shall be subject to the legislation of the Member State in whose territory he pursues his main activity. The criteria used to determine the principal activity are laid down in the Regulation referred to in Article 98.

17 Title II of Regulation No 883/2004, entitled ‘Determination of the legislation applicable’, includes, inter alia, Articles 11 and 13 of that regulation.

‘Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.’

19 Article 13 of that regulation, entitled ‘Pursuit of activities in two or more Member States’, provides, in paragraph 2 thereof:

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

(a) 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) the legislation of the Member State in which the centre of interest of his/her activities is situated, if he/she does not reside in one of the Member States in which he/she pursues a substantial part of his/her activity.’

20 Article 87 of that regulation, concerning transitional provisions, provides, in paragraph 8 thereof:

‘If, as a result of this Regulation, a person is subject to the legislation of a Member State other than that determined in accordance with Title II of Regulation [No 1408/71], that legislation shall continue to apply while the relevant situation remains unchanged and in any case for no longer than 10 years from the date of application of this Regulation unless the person concerned requests that he/she be subject to the legislation applicable under this Regulation. The request shall be submitted within 3 months after the date of application of this Regulation to the competent institution of the Member State whose legislation is applicable under this Regulation if the person concerned is to be subject to the legislation of that Member State as of the date of application of this Regulation. If the request is made after the time limit indicated, the change of applicable legislation shall take place on the first day of the following month.’

5b. Marginal activities shall be disregarded for the purposes of determining the applicable legislation under Article 13 of [Regulation No 883/2004]. Article 16 of [this Regulation] shall apply to all cases under this Article.

8. For the purposes of the application of Article 13(1) and (2) of [Regulation No 883/2004], a “substantial part of employed or self-employed activity” pursued in a Member State shall mean a quantitatively substantial part of all the activities of the employed or self-employed person pursued there, without this necessarily being the major part of those activities.

To determine whether a substantial part of the activities is pursued in a Member State, the following indicative criteria shall be taken into account:

(b) in the case of a self-employed activity, the turnover, working time, number of services rendered and/or income.

In the framework of an overall assessment, a share of less than 25% in respect of the criteria mentioned above shall be an indicator that a substantial part of the activities is not being pursued in the relevant Member State.

9. For the purposes of the application of Article 13(2)(b) of [Regulation No 883/2004], the “centre of interest” of the activities of a self-employed person shall be determined by taking account of all the aspects of that person’s occupational activities, notably the place where the person’s fixed and permanent place of business is located, the habitual nature or the duration of the activities pursued, the number of services rendered, and the intention of the person concerned as revealed by all the circumstances.

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

22 On 14 April 2020, W M, of Austrian and Liechtenstein nationality, requested the SVS to issue him, on the basis of Regulation No 1408/71, with an E101 form, certifying that he was subject to Austrian social security for the period at issue, during which he simultaneously pursued occupational activities as a self-employed doctor in Austria, in Liechtenstein and in Switzerland, accounting for approximately 19%, 78% and 3%, respectively, of his income.

23 Before taking up an additional occupational activity as a self-employed person in Switzerland on 1 January 2017, W M simultaneously pursued an occupational activity as a self-employed person in Liechtenstein and in Austria and was, on account of his residence in Austria, subject to Austrian social security legislation pursuant to Article 14a(2) of Regulation No 1408/71.

24 Since Regulation No 883/2004 has replaced Regulation No 1408/71, the SVS reclassified W M’s request as seeking to obtain an A1 form on the basis of Regulations No 883/2004 and No 987/2009 and refused that request by decision of 21 October 2020. The reason for that refusal was the fact that, although it is true that in relations with the Principality of Liechtenstein, on the basis of the EEA Agreement, and in relations with the Swiss Confederation, on the basis of the AFMP, those regulations would apply to the three States concerned, in the present case, however, there is no agreement covering both the Member States of the EEA and the Swiss Confederation, with the result that W M’s activities during the period at issue should be separately subject to the legislation of each of those States.

25 The Bundesverwaltungsgericht (Federal Administrative Court, Austria) upheld the action brought by W M against that decision and held that he should have been issued with a certificate stating that, during the period at issue, he was subject to Austrian social security.

26 That court took the view that the situation at issue in the main proceedings should be examined, as regards the activities pursued in Austria and in Liechtenstein, on the basis of the EEA Agreement and, as regards the activities pursued in Austria and in Switzerland, on the basis of the AFMP and that it was important in that regard to determine whether the occupational activity pursued by W M in Switzerland constituted a change within the meaning of Article 87(8) of Regulation No 883/2004, with the result that Regulation No 1408/71 would no longer apply in this case.

27 Following its examination, that court found, first, as regards the EEA Agreement, that W M was, in accordance with Article 14a of Regulation No 1408/71, subject to Austrian social security legislation in respect of the occupational activities pursued in those States. According to that court, the pursuit of an additional simultaneous occupational activity in Switzerland was not relevant with regard to that agreement and did not therefore entail any change in respect of the relevant situation within the meaning of Article 87(8) of Regulation No 883/2004. It found, secondly, as regards the AFMP, that W M was, in accordance with Article 13 of Regulation No 883/2004, also subject to Austrian social security legislation, since he pursued the essential part of his occupational activities in Austria, where he resided.

28 The Verwaltungsgerichtshof (Supreme Administrative Court, Austria), the referring court, hearing the appeal on a point of law against that decision brought by the SVS, states that the determination of the social security legislation applicable to an EU citizen who pursues occupational activities in a number of Member States is governed by Regulation No 883/2004 in conjunction with Regulation No 987/2009. According to that court, those regulations are applicable in relations with other States by agreements, in particular, to the EEA States, including the Principality of Liechtenstein, under the EEA Agreement and, under the AFMP, to the Swiss Confederation.

29 The referring court expresses doubts as to whether the approach – consisting in separately examining, in the context of the EEA Agreement, on the one hand, and in the context of the AFMP, on the other, which is, in accordance with the rules laid down by Regulations No 1408/71 and No 883/2004, the applicable social security legislation – complies with the principle that the legislation of a single Member State is to apply, as set out in Article 13(1) of Regulation No 1408/71 and in Article 11 of Regulation No 883/2004. It could not be ruled out that such a separate examination may, in other circumstances than those at issue in the main proceedings, lead to different legislation concurrently applying in respect of the same person and the same period. Therefore, that court considers it necessary to ask for a preliminary ruling from the Court of Justice as to whether Regulations No 1408/71 and No 883/2004 are applicable to a situation such as that at issue in the main proceedings and, if so, how they should be applied.

30 If the Court should find that those regulations apply in the present case, the referring court is also unsure as to the interpretation of the transitional provision laid down in Article 87(8) of Regulation No 883/2004 in a situation such as that at issue in the main proceedings.

31 The referring court notes that, before the period at issue and the taking up of his additional occupational activity in Switzerland, W M, who simultaneously pursued an activity as a self-employed person in Austria and in Liechtenstein, was, on account of his residence in Austria, subject to Austrian legislation, in accordance with Article 14a(2) of Regulation No 1408/71. Regulation No 883/2004, which has replaced Regulation No 1408/71, provides, in Article 13(2) thereof, that, in the event of activities pursued as a self-employed person in a number of Member States, the legislation of the Member State of residence applies only if a substantial part of activities are also pursued in that Member State, and that in the absence of such activities, the legislation of the Member State in which the centre of interest of the activities of the person concerned applies. Accordingly, Liechtenstein legislation should apply to W M during the period at issue on account of the pursuit of a substantial part of his activities in Liechtenstein. However, under Article 87(8) of Regulation No 883/2004, Austrian social security legislation should have continued to apply to the person concerned, since his situation remained unchanged after that regulation entered into force.

32 The referring court asks, in essence, whether the fact that W M, who already pursues an occupational activity in two States, including a Member State of the European Union and an EFTA State, which is a party to the EEA Agreement, takes up a minor additional occupational activity in a third State, namely the Swiss Confederation, constitutes a change in the ‘relevant situation’ within the meaning of Article 87(8) of Regulation No 883/2004.

33 In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Are the rules of EU law on the determination of the applicable legislation in the area of social security according to [Regulation No 883/2004] in conjunction with [Regulation No 987/2009] to be applied to a situation in which an EU citizen … simultaneously [pursues his or her occupational activities] in an EU [Member] State, an … EFTA State[, which is a party to the EEA Agreement] (Liechtenstein) and Switzerland?

(2) Must the application of [Regulation No 883/2004] in conjunction with [Regulation No 987/2009] in such a case be such that the applicability of the social security legislation must be assessed separately in the relationship between the EU Member State and the … EFTA State[, which is a party to the EEA Agreement], on the one hand, and the relationship between the EU Member State and [the Swiss Confederation], on the other hand, and must, accordingly, a separate certificate regarding the applicable legislation be issued in each case?

(3) Is there a change in the “relevant situation” within the meaning of Article 87(8) of [Regulation No 883/2004] where an [occupational] activity is commenced in another State to which the said regulation is applicable, even if a change in the applicable legislation would not result either under [Regulation No 883/2004] or under [Regulation No 1408/71] and the activity is so subordinate [to the] extent that only about 3% of total income is thereby obtained?

In that regard, does it make any difference whether, within the meaning of the second question, [the] coordination in bilateral relations must take place separately, that is to say, on the one hand, between the States hitherto concerned and, on the other hand, between one of the States hitherto concerned and the “other” State?’

34 By its three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Regulation No 1408/71 and Regulation No 883/2004 in conjunction with Regulation No 987/2009 must be interpreted as being applicable to a situation in which an EU citizen – who simultaneously pursues occupational activities as a self-employed person in an EU Member State and an EFTA State, which is a party to the EEA Agreement – takes up an additional occupational activity as a self-employed person in Switzerland. If so, the referring court asks, in essence, whether it is necessary to determine the social security legislation applicable pursuant to those regulations to such a situation separately, namely, on the one hand, on the basis of the EEA Agreement as regards relations between the Member State and the EFTA State, which is a party to the EEA Agreement, and, on the other, on the basis of the AFMP as regards relations between the Member State of the European Union and the Swiss Confederation.

35 It is important to state at the outset that the EEA Agreement provides, in Articles 28 to 30 thereof, and in Annex VI (Social security) thereto, that Regulations No 883/2004 and No 987/2009 apply in situations involving the Member States of the European Union and the Principality of Liechtenstein. Likewise, the AFMP and, more specifically, Article 8 thereof and Annex II thereto provide that those regulations apply in situations involving Member States of the European Union and the Swiss Confederation.

36 It follows that Regulations No 883/2004 and No 987/2009 apply to a situation, such as that at issue in the main proceedings, in which an EU citizen, who simultaneously pursues an occupational activity as a self-employed person in Austria and in Liechtenstein, takes up an additional occupational activity as a self-employed person in Switzerland.

37 Any contrary interpretation would be tantamount to preventing EU citizens from enjoying the rights they derive from Regulations No 883/2004 and No 987/2009 and, consequently, to putting them at a disadvantage on the sole ground that they are pursuing their right to free movement not only in Liechtenstein, but also in Switzerland.

38 As is apparent from the case-law of the Court, the free movement of persons guaranteed by the AFMP would be impeded if a national of a Contracting Party were to be placed at a disadvantage in his or her State of origin solely for having exercised his or her right of free movement (judgment of 26 February 2019, Wächtler, C‑581/17, EU:C:2019:138, paragraph 53). Such an interpretation would also fail to have regard to the fact that the EEA Agreement not only enables nationals of Iceland, Liechtenstein and Norway to invoke the rights conferred by Regulations No 883/2004 and No 987/2009 within the European Union, but also enables nationals of the Member States to rely on those rights in Iceland, Liechtenstein and Norway (judgment of 26 September 2013, United Kingdom v Council, C‑431/11, EU:C:2013:589, paragraph 55).

39 In addition, it must be noted that the application of Regulations No 883/2004 and No 987/2009 to a situation such as that at issue in the main proceedings, which concerns three different States, reduces the risk of the person concerned being simultaneously subject to the social security legislation of several States, since, in accordance with the principle pursued by those regulations that the legislation of a single Member State is to apply, persons to whom those regulations apply should be subject to the legislation of a single Member State in order to avoid the complications which may arise from the simultaneous application of a number of national legislative systems and to eliminate complications, which, for persons moving within the European Union, in the EFTA States, which are parties to the EEA Agreement, and in Switzerland would be the consequence of partial or total overlapping of the applicable legislation (see, to that effect, judgments of 6 June 2019, V, C‑33/18, EU:C:2019:470, paragraph 42, and of 13 October 2022, Raad van bestuur van de Sociale verzekeringsbank (Intervals between temporary work assignments), C‑713/20, EU:C:2022:782, paragraph 39).

40 As regards the manner in which Regulations No 883/2004 and No 987/2009 should be applied to a situation such as that at issue in the main proceedings, it must be stated that, since those regulations apply on the basis of two separate legal bases, namely the EEA Agreement and the AFMP, the determination of the social security legislation applicable to the person concerned during the period at issue must, logically, reflect that distinction.

41 Accordingly, in the present case, those regulations must be applied separately, that is to say, on the one hand, as regards the relations between the Republic of Austria and the Principality of Liechtenstein, on the basis of the EEA Agreement, as was already the case before W M took up an additional occupational activity as a self-employed person in Switzerland, and, on the other, as regards the relations between the Republic of Austria and the Swiss Confederation, on the basis of the AFMP.

42 First, as regards the EEA Agreement, which governs, inter alia, situations involving the Republic of Austria and the Principality of Liechtenstein, Article 13(2)(a) of Regulation No 883/2004 states that the person concerned is subject to the legislation of the Member State of residence only if he or she pursues a substantial part of his or her activity there. Article 14(8) of Regulation No 987/2009 provides that, for the purposes of the application of Article 13(1) and (2) of Regulation No 883/2004, a ‘substantial part of employed or self-employed activity’ pursued in a Member State means a quantitatively substantial part of all the activities of the employed or self-employed person pursued there, without this necessarily being the major part of those activities. To determine whether a substantial part of the activities is pursued in a Member State, in the case of a self-employed activity, the turnover, working time, number of services rendered and/or income are to be taken into account. In the framework of an overall assessment, a share of less than 25% in respect of those criteria is to be an indicator that a substantial part of the activities is not being pursued in the relevant Member State.

43 It follows from the order for reference that, during the period at issue, W M pursued his occupational activities simultaneously in Austria and in Liechtenstein, accounting for 19% and 78%, respectively, of his income. Consequently, the occupational activity pursued by W M during the period at issue in the Member State in which he resided, namely the Republic of Austria, represented less than 25% of his income. He cannot therefore be regarded as pursuing, at that time, a substantial part of his activities in that Member State.

44 Article 13(2)(b) of Regulation No 883/2004 provides that, if the person concerned does not reside in the Member State in which he or she pursues a substantial part of his or her activity, that person is subject to the legislation of the Member State where the centre of interest of his or her activities is situated. Under Article 14(9) of Regulation No 987/2009, the ‘centre of interest’ of the activities of a self-employed person for the purposes of Article 13(2)(b) is to be determined by taking account of all the aspects of that person’s occupational activities, notably the place where the person’s fixed and permanent place of business is located, the habitual nature or the duration of the activities pursued, the number of services rendered, and the intention of the person concerned as revealed by all the circumstances.

45 Given that, during the period at issue, W M pursued the major part of his occupational activities in Liechtenstein, the centre of interest of his activities being located in that State, he should, pursuant to Article 13(2)(b) of Regulation No 883/2004 in conjunction with Article 14(9) of Regulation No 987/2009, be subject to the Liechtenstein social security legislation during the period at issue.

46 Consequently, during that period, W M was subject, in principle, to the legislation of a Member State other than that of the Member State the legislation of which he was subject to under Title II of Regulation No 1408/71, namely Austrian social security legislation.

47 It must however be noted that, in such a situation, Article 87(8) of Regulation No 883/2004 provides that the social security legislation applicable under Title II of Regulation No 1408/71 continues to apply if the relevant situation remained unchanged and in any case for no longer than 10 years from the date of application of Regulation No 883/2004.

48 It is therefore important to assess whether, during the period at issue, the relevant situation remained unchanged, since, if so, Austrian social security legislation should continue to apply to W M. In order to do so, it must, in particular, be determined whether the fact that W M – who already simultaneously pursued independent occupational activities in a Member State of the European Union, namely the Republic of Austria, and in an EFTA Member State, which is a party to the EEA Agreement, namely the Principality of Liechtenstein – took up, at the same time, an additional occupational activity as a self-employed person in Switzerland accounting for 3% of his total income constitutes a ‘change in the relevant situation’ within the meaning of Article 87(8) of Regulation No 883/2004.

49 In that respect, it suffices to note, as the European Commission contended in its written observations, that in connection with the EEA Agreement, which governs, inter alia, the relations between the Republic of Austria and the Principality of Liechtenstein, the Swiss Confederation is a third State. Consequently, the pursuit of an occupational activity in Switzerland by the person concerned is irrelevant in the assessment to be carried out.

50 It follows that, even though W M pursued an additional occupational activity as a self-employed person in Switzerland during the period at issue, the relevant situation before Regulation No 883/2004 entered into force remained unchanged. W M should, therefore, pursuant to Article 87(8) of that regulation, continue to be subject to Austrian social security legislation.

51 Secondly, as regards the AFMP, which governs, inter alia, situations involving the Republic of Austria and the Swiss Confederation, it is important to note that, in the present case, W M simultaneously pursued, during the period at issue, occupational activities as a self-employed person in Austria and in Switzerland accounting for approximately 19% and 3%, respectively, of his income. Even though the occupational activity pursued by the person concerned in Austria, where he resided, is greater, it represented less than 25% of his income. Therefore, W M could not, in accordance with Article 14(8) of Regulation No 987/2009, be subject to Article 13(2)(a) of Regulation No 883/2004, but should, in accordance with Article 13(2)(b) of that regulation, be subject to the legislation of the Member State where the centre of interest of his activities was situated.

52 Given that, during the period at issue, W M resided in Austria and pursued, with regard to the AFMP, the majority of his activities there, the centre of interest of his activities was in Austria. Accordingly, W M should be subject to Austrian social security legislation.

53 That finding cannot be called into question by the fact that, during the period at issue, W M also pursued, at the same time, an occupational activity as a self-employed person accounting for 78% of his income in Liechtenstein. As the Commission stated in its written observations, that fact is not relevant with regard to the AFMP since, in the context of that agreement, the Principality of Liechtenstein is a third State.

54 It follows that, in accordance with the relevant provisions of Regulations No 1408/71 and No 883/2004, which are applicable to the situation at issue in the main proceedings under the EEA Agreement and the AFMP, which must be examined separately, the same social security legislation is applicable to W M during the period at issue, namely Austrian legislation, with the result that a single certificate must be issued by the competent authorities.

55 Consequently, the answer to the questions raised is that Regulation No 1408/71 and Regulation No 883/2004 in conjunction with Regulation No 987/2009 must be interpreted as being applicable, under the EEA Agreement and the AFMP, to a situation in which an EU citizen – who simultaneously pursues occupational activities as a self-employed person in an EU Member State and an EFTA State, which is a party to the EEA Agreement – takes up an additional occupational activity as a self-employed person in Switzerland. It is necessary, in accordance with the relevant provisions of those regulations, to determine the applicable social security legislation separately: on the one hand, within the context of the EEA Agreement and, on the other, within the context of the AFMP.

56 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.

Council Regulation (EC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004 and Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012 in conjunction with Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation No 883/2004, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012,

must be interpreted as being applicable, under the Agreement on the European Economic Area of 2 May 1992, as amended by the Agreement on the participation of the Republic of Bulgaria and Romania in the European Economic Area and the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed in Luxembourg on 21 June 1999, to a situation in which an EU citizen – who simultaneously pursues occupational activities as a self-employed person in an EU Member State and a State of the European Free Trade Association, which is a party to the Agreement on the European Economic Area – takes up an additional occupational activity as a self-employed person in Switzerland. It is necessary, in accordance with the relevant provisions of those regulations, to determine the applicable social security legislation separately: on the one hand, within the context of the Agreement on the European Economic Area and, on the other, within the context of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	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) >> Sozialversicherungsanstalt (Migrant workers - Social security - Legislation applicable - Judgment) [2024] EUECJ C-329/23 (26 September 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C32923.html Cite as: [2024] EUECJ C-329/23, EU:C:2024:802, ECLI:EU:C:2024:802

Court of Justice of the European Communities (including Court of First Instance Decisions)