E-1/21 ISTM International Shipping & Trucking Management GmbH v AHV-IV-FAK 

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Terug E-1/21 ISTM International Shipping & Trucking Management GmbH v AHV-IV-FAK 

EFTA-case  

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Deadlines: Motivation ministry:    7 May 2021
Written observations:                    23 June 2021 (in English)

Keywords : social security;

Subject :

-           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, 30 April 2004, p. 1) was incorporated into the EEA Agreement by Decision of the Joint Committee No 76/2011 of 1 July 2011.

-           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, 30 October 2009, p. 1) was incorporated into the EEA Agreement by Decision of the Joint Committee No 76/2011 of 1 July 2011.

Facts of the case:

The appellant is a limited liability company under Liechtenstein law, with a registered office in Liechtenstein. The appellant is a management company for inland waterway transport on the River Rhine. The respondents are institutions governed by public law which provide statutory old-age and survivors' benefits, invalidity benefits and family benefits in Liechtenstein. The appellant’s employees (who are resident in Germany, the Netherlands and the Czech Republic), whose subordination to social security law is at issue in the present case, are employed full-time and only by the appellant. They pursue their activity usually in two or more Member States. Employees who are resident in Germany and/or the Netherlands pursue also an activity in their respective state of residence, however in no case more than 25%. By order of 17-02-2017 and decision of 22-09-2020 in response to the appellant’s appeal, the respondents determined that Liechtenstein social security law is not applicable to the appellant and its employees. In summary, the appellant did not carry out the essential decisions and functions of its business operations at its registered office in Liechtenstein. In its appeal, the appellant argues that its registered office already suffices. Furthermore, the essential decisions and measures were taken at the registered office in Liechtenstein. In addition, the appellant relied on the fact that, in relation to individual employees, foreign institutions (those of the state of residence) have made a provisional determination of the applicable legislation within the meaning of Article 16 of Regulation (EC) No 987/2009 to the effect that Liechtenstein legislation must be applied. In this respect, the determination has become definitive. In this regard, on a point of fact, the appellate court has been provided with the provisional determination made by the Czech social security authority to which the respondents did not object within two months. Further provisional determinations made by the Czech social security authority also exist which, in some cases, were transmitted by the appellant directly to the respondents.

Request for an advisory opinion:

I. Registered office of an undertaking

1. Does the registered office (statutarischer Sitz or satzungsmässiger Sitz) of an undertaking suffice to be regarded as the registered office (Sitz) within the meaning of Article 13(1)(b)(i) 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 in conjunction with Article 14(5a) 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 and thus as a connecting factor for subjecting the employees of the undertaking to the legislation of the Member State in which the registered office (statutarischer Sitz or satzungsmässiger Sitz) is situated?

2. If Question 1 is answered in the negative:

According to which criteria must the registered office (statutarischer Sitz or satzungsmässiger Sitz) or place of business where the essential decisions of the undertaking are adopted and where the functions of its central

administration are carried out, as provided for in Article 14(5a) of Regulation (EC) No 987/2009, be determined? For these purposes, must reference be had to the interpretation reached by the Administrative Commission for the Coordination of Social Security Systems, as set out in Part II, Section 7 (page [35] et seq.) of the Practical guide on the applicable legislation in the European Union (EU), in the European Economic Area (EEA) and in Switzerland of December 2013?

II. Questions on the interpretation of Article 16(3) of Regulation (EC) No 987/2009:

1. From what time is the institution of the Member State in which the person pursues an activity regarded as having been informed of the provisional determination by the institution of the place of residence? Does it suffice when, in whatever form, the provisional determination reaches the institution of the place in which the person pursues an activity (for example via the undertaking or the employee)?

2. Is the “definitive nature” of the determination of the applicable legislation that arises as a result of the two-month period expiring without use being made of it not susceptible to further challenge by the designated institution of the Member State and, in particular, even where the person concerned does not pursue any activity in this Member State?

3. If Question II(2) is answered to the effect that the determination, notwithstanding the fact that it has become definitive, may be challenged: What are the legal consequences? Can this result in a retroactive setting aside of the determination?

Cited (recent) case-law: Case C-631/17 Inspecteur van de Belastingdienst; C-33/18 Institut national d’assurances sociales pour travailleurs indépendants (Inasti) ;

Policy Area: SZW