C-784/19 TEAM POWER EUROPE

Prejudiciële hofzaak

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Termijnen: Motivering departement:    31 december 2019
Schriftelijke opmerkingen:                    17 februari 2020

Trefwoorden : social security; posted workers;

Onderwerp :

•          Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems;

•          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;

Feiten:

The company ‘TEAM POWER EUROPE’ (TPE, the applicant) was founded under Bulgarian law with the object of arranging temporary employment and work placements in Bulgaria and other States. TPE is registered for pursuing the activity of arranging temporary employment in Bulgaria and also has a worker assignment permit issued by Germany. On 08.10.2018, TPE concluded a contract of employment with a Bulgarian citizen (the employee). According to the contract, TPE is obliged to post the employee to Germany, where he will work for the company ‘CLW’ under the direction and supervision thereof. The contract also provides that the duties of the employee in the position of ‘machine operator – metalworking’ are specified by CLW in the description of his field of activity. TPE is obliged to pay the wages of the employee. On 09.05.2019, TPE asked the Territorial Directorate of the National Revenue Agency in Varna (the Directorate) to issue a certification that the employee is subject to Bulgarian legislation during the period of the assignment. In the request, TPE indicated that the employment relationship between the employee and TPE had continued to exist throughout the period of assignment and that the employee had received wages and social security and health protection from TPE. By decision of 30.05.2019, the Directorate refused to issue the requested certification on the grounds that the two cumulative conditions under which the employee could still be subject to Bulgarian social security law had not been met, as the direct relationship between the employee and the employer had not been maintained and the latter did not pursue its substantial activity in the territory of Bulgaria. In the administrative proceedings, TPE filed an opposition against the decision refusing the requested certification. By decision of 11.06.2019, the Directorate rejected the opposition and confirmed the refusal decision.

Overweging:

It cannot be gathered from the case law of the Court of Justice whether it is sufficient for the satisfaction of the second condition of Article 12(1) of Regulation 883/2004 if the employer concludes contracts of employment with the workers posted to another Member State in the Member State in which it is established or whether it is necessary for substantial employee assignment activities to be performed for hirers carrying out their activities in the territory of the Member State in which the employer is established. Consequently, the referring Court requests a preliminary ruling from the Court of Justice. 

Prejudiciële vragen:

Is Article 14(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 to be interpreted as meaning that, in order for it to be possible to assume that an undertaking engaged in providing temporary personnel normally carries out its activities in the Member State in which it is established, it has to perform a substantial part of the employee assignment activity for hirers established in the same Member State?

Aangehaalde (recente) jurisprudentie: FTS (C-202/97); Manpower (C-35/70);

Specifiek beleidsterrein: SZW;