Case C‑89/16

Radosław Szoja

v

Sociálna poisťovňa
and
WEBUNG, s.r.o.

(Request for a preliminary ruling from the

Najvyšší súd Slovenskej republiky)

(Reference for a preliminary ruling — Application of social security schemes — Migrant workers — Person pursuing an activity as an employed person and an activity as a self-employed person in two different Member States — Determination of the applicable legislation — Regulation (EC) No 883/2004 — Article 13(3) — Regulation (EC) No 987/2009 — Article 14(5b) — Article 16 — Effects of the decisions of the Administrative Commission for the coordination of social security systems — Inadmissibility)

Summary — Judgment of the Court (Third Chamber), 13 July 2017

Social security — Migrant workers — Legislation applicable — Person simultaneously employed in one Member State and self-employed in another Member State — Obligation to take account of the requirements laid down in Article 14(5b) and Article 16 of Regulation No 987/2009

(European Parliament and Council Regulations No 883/2004, Art. 13(3) and No 987/2009, Arts 14(5) and 16)

Article 13(3) 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, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, must be interpreted as meaning that, in order to determine the national legislation applicable under that provision to a person, such as the applicant in the main proceedings, who normally pursues an activity as an employed person and an activity as a self-employed person in different Member States, the requirements laid down in Article 14(5b) and Article 16 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 No 883/2004, as amended by Regulation No 465/2012, must be taken into account.

According to the first situation set out in Article 13(3) of the Basic Regulation, aiming to determine the national legislation applicable to a person who normally pursues an activity as an employed person in one Member State and an activity as a self-employed person in another Member State, that person is subject to the legislation of the Member State in which he pursues the activity as an employed person.

That being the case, the Implementing Regulation which aims to lay down the detailed rules for implementing the Basic Regulation provides, in Article 14(5b), that marginal activities are to be disregarded for the purposes of determining the applicable legislation under Article 13 of the Basic Regulation.

Furthermore, it follows from Article 14(5b) of the Implementing Regulation that Article 16 of that regulation applies to all the situations laid down in Article 14. Therefore, in a case such as that at issue in the main proceedings, Article 16 thereof, which indicates the procedure to follow in order to determine the legislation applicable under Article 13 of the Basic Regulation, must be taken into consideration.

In that connection, it must recalled that since the conflict rules laid down by the Basic Regulation are mandatory for the Member States, a fortiori it cannot be accepted that insured persons falling within the scope of those rules can counteract their effects by being able to elect to withdraw from their application (see, to that effect, judgment of 14 October 2010, von Delft and Others, C‑345/09, EU:C:2010:610, paragraph 52).

(see paras 36, 38, 41, 42, 44, operative part)