The reference has been made in proceedings between Format and one of its employees, Mr Kita, on the one hand, and the Polish Social Security Institution ZUS, on the other, concerning the determination of the legislation applicable to Mr Kita under Regulation 1408/71.
Format employed staff recruited in Poland, but posted them to building projects under way in the various Member States, depending upon the requirements of the company and the nature of the work to be carried out. Mr Kita’s place of ‘residence’, within the meaning of Article 1(h) of Regulation 1408/71, was and remained in Poland. On three occasions, Mr Kita was employed full-time by Format on the basis of fixed-term contracts of employment. Each contract defined the place of employment as being ‘operations and building sites in Poland and within the territory of the European Union (Ireland, France, Great Britain, Germany, Finland), as instructed by the employer’. However, under the first two contracts, Mr Kita worked solely in France and under the third in Finland. After having issued an E101 in application of Article 14(2)(b) of Regulation 1408/71, the ZUS later refused to issue an E 101 certificate regarding the legislation applicable confirming that Mr Kita came within the Polish social security regime, mainly holding Mr Kita could not be considered as ‘a person normally employed in the territory of two or more Member States’.
Confronted with this contested decision, the referring Polish Court decided to stay the proceedings and asked the ECJ whether Article 14(2)(b) of Regulation No 1408/71 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a person who, under successive employment contracts stating the place of employment to be the territory of several Member States, in fact works during the term of each of those contracts only on the territory of one of those States at a time, can fall within the concept of ‘a person normally employed in the territory of two or more Member States’, within the meaning of that provision, and if, in the event of that question being answered in the affirmative, the situation of such a person falls within Article 14 (2)(b)(i) or (ii).
Also in this case, the ECJ repeated that the provisions of Title II of Regulation 1408/71, which includes Article 14(2), constitute a complete and uniform system of conflict rules the aim of which is to ensure that workers moving within the European Union are subject to the social security scheme of only one Member State. In order to achieve that aim, Article 13(2)(a) of Regulation 1408/71 lays down the principle that an employed person is to be subject, with regard to social security matters, to the legislation of the Member State in which he works.
Following the Commission’s point on this issue, the Court held that, in any event, to fall within Article 14(2) of Regulation 1408/71, a person must ‘normally’ be employed in the territory of two or more Member States. It follows that, if employment in the territory of a single Member State constitutes the normal arrangement for the person concerned, such employment cannot fall within the scope of Article 14(2). In those circumstances, it is necessary to take account of the existence of a divergence between, on one hand, the employment contracts and the places of employment which they stipulate – on the basis of which Format requested an E 101 certificate to be issued – and, on the other, the way in which the obligations were performed in practice under those contracts.
In that regard, the Court added some instructions for the assessment performed by the institutions. It is necessary to have regard, in particular, to the nature of the work as defined in the contractual documents, in order to determine whether the foreseeable activities amount to employed activities covering, on more than a merely once-off basis, the territory of several Member States, provided, however, that the terms of those documents are consistent with the foreseeable activities concerned at the time of the request for the E 101 certificate, or, as the case may be, with the actual work performed before or after such a request.
When assessing the facts with a view to determining the social security legislation applicable for the purposes of issuing an E 101 certificate, the institution concerned may where appropriate take account not only of the wording of contractual documents, but also of factors such as the way in which employment contracts between the employer and the worker concerned had previously been implemented in practice, the circumstances surrounding the conclusion of those contracts and, more generally, the characteristics and conditions of the work performed by the company concerned, in so far as those factors may throw light on the actual nature of the work in question.
Mr Kita performed work continuously for several months or more than 10 months in the territory of a single Member State, namely, France. Moreover, under the next employment contract, Mr Kita worked in Finland only. It is apparent that, under each of the three contracts, when the work was finished, Mr Kita obtained unpaid leave and that, by agreement of the parties, the contract concerned was then terminated early.
In such circumstances, it cannot validly be maintained that an employed person in a situation such as Mr Kita’s can fall within the concept of ‘a person normally employed in the territory of two or more Member States’ within the meaning of Article 14(2) of Regulation 1408/71. On the other hand, in such circumstances, the principle set out in Article 13(2)(a) of Regulation 1408/71 could apply, as well as, where necessary, during the periods of interruption between the employment contracts, the principle set out in Article 13(2)(f).