E-5/22

Contentverzamelaar

E-5/22

EFTA-case  

Klik hier voor het dossier van het EVA-hof (voor zover beschikbaar).

Deadlines: Motivation ministry:    7 June 2022
Written observations:                    25 July 2022

Keywords: Lawyer, residence, benefits, 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

•            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

Facts of the case:

The appellant, CM LL.M., is an Austrian national. In July 2015 he transferred his residence from Austria to Switzerland. On 13-11-2018, he was entered by the Vienna Bar Association in the register of lawyers, as a result of which he is entitled to practise as a lawyer in Austria. On 03-12-2018, he was entered by the Liechtenstein Bar Association in the register of established European lawyers. The appellant has worked since 01-01-2019 in Liechtenstein as an employed or self-employed lawyer. He obtained an income exclusively from this activity. In Austria he did not obtain any income. In Switzerland he has no employed activity. The appellant requested the respondents to issue to him for the years 2019 and 2020 Form A1 as evidence of old-age benefits provision. By order of the respondents, it was determined that the income obtained by the appellant from employed and self-employed activities in Liechtenstein is liable to mandatory contributions payable to the respondents but that a PD A1 certificate, attesting an exclusive liability and insurance obligation in Liechtenstein or in a single State within the meaning of social security coordination, cannot be issued. The appellant challenged that decision by an appeal to the Princely Court of Appeal. In the appeal proceedings, the respondents have offered, in place of Form PD A1, to issue an official attestation concerning the old-age benefits provision existing in Liechtenstein. In relation to the “old-age benefits” branch of social security, the appellant is currently subject to Austrian legislation and Liechtenstein legislation. As he is an Austrian national, he falls within the scope ratione personae of Regulation 883/2004. Pursuant to Article 11(1) of that Regulation, however, he may be subject to the legislation of a single Member State only. The respondents take the view that, as a result of the appellant's residence in a third country (Switzerland), the coordination rules of Regulation 883/2004 do not apply. In the view of the referring court one must concede the point to the respondents that in Regulations 883/2004 and 987/2009 reference is repeatedly also made to the “Member State of residence” which in the case of residence in a third country – as in the present case – could lead to difficulties in the application of the legislation. If this question is answered to the effect that it is not necessary for the scope ratione personae that the national is resident in a Member State, the question then arises whether that answer is changed by the international agreements. Furthermore, as the respondents have offered, in place of Form PD A1, to issue an attestation concerning the old-age benefits provision existing in Liechtenstein, the question arises what legal quality Form PD A1 has within the scope of the EEA Agreement i.e. whether the institutions of another Member State may accept only this document or if Form PD A1 constitutes a mere (non-binding) recommendation of the Administrative Commission so that also an attestation of another kind (a mere simple letter) suffices for the purposes of Articles 5(1) and 19(2) of Regulation 987/2009 and must be accepted by the Austrian institution.

Request for an advisory opinion:

1. Is it necessary for the scope ratione personae of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 (OJ 2004 L 166, p. 1), incorporated in the EEA Agreement by Decision of the EEA Joint Committee of 1 July 2011 (LGBl. 2012 No 202), that the Member State national who is subject to the legislation of one or more Member States within the meaning of Article 2(1) of that Regulation is resident in one of the Member States?

If the answer to that question is in the negative: Can an agreement concluded by the EU or an EEA Member State with a third country by which the scope of application of the Regulation mentioned was extended to the third country change the answer to this question?

2. Must an attestation within the meaning of Article 19(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 (OJ 2009 L 284, p. 1), incorporated into the EEA Agreement by Decision of the Joint Committee of 1 July 2011 (LGBl. 2012 No 202), be issued necessarily by means of a form (PD A1) laid down by the Administrative Commission for the Coordination of Social Security Systems in order to produce the legal effects specified in Article 5(1) of that Regulation?

Cited (recent) case-law: (C-340/94), ISTM (E-1/21), (C-13/73)

Policy Area: SZW