International social security: the ECJ clarifies the notion of "normal place of employment”

The Court of Justice of the European Union clarifies the notion of “normal place of employment” in the context of the applicable social security law in a situation of cross-border employment.

Context

A Polish worker, employed by a Polish company, works in France for 3 years. In the middle of this period, he also works for 2 months in the United Kingdom for the same Polish employer. 

A dispute arises between the Polish authorities and the Polish employer as to the applicable social security regime. Eventually, the case comes before the Court of Justice of the European Union. 

The judgment of the Court of Justice 

The legal framework 

The Court first recalls the basic principles of the European regulations on social security coordination. According to the "uniqueness principle", a person can only fall under one social security regime. In principle, the work country principle applies, but in case of simultaneous employment in two or more EU Member States, one should look at: 

• the country of residence of the employee, if he performs a substantial part of his work there.
• the country where the registered office of the company is located, if the employee does not live in one of the countries where he works.

The question arises whether a person who works in different Member States under the same employment contract in successive periods (and not in parallel) must be affiliated to the social security system of the work country on each occasion, or whether there can still be “simultaneous employment in several Member States”, so that the work country principle does not apply. 

Application 

The Court refers to its previous case-law according to which a worker who 'normally' works in one Member State cannot be regarded as working simultaneously in two or more Member States. 

According to the Court, an uninterrupted period of 12 months can lead to a "normal employment" in one Member State. 

Consequently, the Court holds that successive periods of employment in different countries only amount to "simultaneous employment in one or more Member States" in so far as the duration of the uninterrupted periods of employment in each of them is less than 12 months. 

To remember? 

An employee who, under the same employment contract, is employed successively by the same employer in different Member States for uninterrupted periods exceeding 12 months is not covered by the exception on "simultaneous employment in several Member States", but is covered by the general rule of the "work country principle". 

For the sake of completeness, we note that this jurisprudence relates to regulation 1408/71, which has now been replaced by regulation 883/2004. The practical guide to the applicable legislation that accompanies the new regulation provides additional explanations about these notions. 

Source:ECJ, 20 May 2021, C-879/19, Format vs Zaklad, CJUE