Case C-115/11

Format Urządzenia i Montaże Przemysłowe sp. z o.o.

v

Zakład Ubezpieczeń Społecznych

(Reference for a preliminary ruling from the Sąd Apelacyjny — Sąd Pracy i Ubezpieczeń Społecznych w Warszawie)

‛Social security — Determination of the legislation applicable — Regulation (EEC) No 1408/71 — Article 14(2)(b) — Person normally employed in the territory of two or more Member States — Successive employment contracts — Employer established in the Member State of habitual residence of the worker — Employment performed exclusively in other Member States’

Summary — Judgment of the Court (Second Chamber), 4 October 2012

1. Social security — Applicable legislation — Article 14(2)(b) of Regulation No 1408/71 — A person normally employed in several Member States — Concept — A person normally employed in only one Member State at a time — Not included

   (Council Regulation No 1408/71, Arts 13(2)(a) and (f) and 14(2))

2. Social security — A person normally employed in several Member States — E 101 certificate — Determination of the legislation applicable — Obligation incumbent on the competent institution to base its findings on the employed person’s actual situation

   (Council Regulation No 1408/71, Title II)

1.  Article 14(2)(b) of Regulation No 1408/71, in its version as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, must be interpreted as meaning that a person who, under successive employment contracts stating the place of employment to be the territory of several Member States, in fact works during the term of each of those contracts only on the territory of one of those States at a time, cannot fall within the concept of ‘a person normally employed in the territory of two or more Member States’, within the meaning of that provision.

   To fall within Article 14(2) of Regulation No 1408/71, a person must ‘normally’ be employed in the territory of two or more Member States. It follows that, if employment in the territory of a single Member State constitutes the normal arrangement for the person concerned, such employment cannot fall within the scope of that provision. In such circumstances, the principle set out in Article 13(2)(a) of Regulation No 1408/71 could apply, as well as, where necessary, during the periods of interruption between the employment contracts, the principle set out in Article 13(2)(f).

   (see paras 39, 40, 50, 52, operative part)

2.  The issuing institution of an E 101 certificate is required to carry out a proper assessment of the facts relevant for the application of the rules relating to the determination of the legislation applicable in the matter of social security for the purposes of Title II of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97 as amended by Regulation No 1992/2006, and, consequently, to ensure the correctness of the information contained in that certificate.

   When assessing the facts with a view to determining that legislation, the institution concerned may, where appropriate, take account not only of the wording of those documents, but also of factors such as the way in which employment contracts between the employer and the worker concerned had previously been implemented in practice, the circumstances surrounding the conclusion of those contracts and, more generally, the characteristics and conditions of the work performed by the company concerned, in so far as those factors may throw light on the actual nature of the work in question.

   If it is apparent from relevant factors other than contractual documents that an employed person’s situation in fact differs from that described in such documents, it is incumbent on the institution concerned, whatever the wording of those contractual documents, to base its findings on the employed person’s actual situation and, where appropriate, to refuse to issue the E 101 certificate and to withdraw the certificate if the competent institution of a Member State in which the employed person carries out work expresses doubts as to the correctness of the facts on which the certificate is based and/or as to compliance with the requirements of Title II of Regulation No 1408/71.

   (see paras 42, 44 to 47)

Case C-115/11

Format Urządzenia i Montaże Przemysłowe sp. z o.o.

v

Zakład Ubezpieczeń Społecznych

(Reference for a preliminary ruling from the Sąd Apelacyjny — Sąd Pracy i Ubezpieczeń Społecznych w Warszawie)

‛Social security — Determination of the legislation applicable — Regulation (EEC) No 1408/71 — Article 14(2)(b) — Person normally employed in the territory of two or more Member States — Successive employment contracts — Employer established in the Member State of habitual residence of the worker — Employment performed exclusively in other Member States’

Summary — Judgment of the Court (Second Chamber), 4 October 2012

1. Social security — Applicable legislation — Article 14(2)(b) of Regulation No 1408/71 — A person normally employed in several Member States — Concept — A person normally employed in only one Member State at a time — Not included

   (Council Regulation No 1408/71, Arts 13(2)(a) and (f) and 14(2))

2. Social security — A person normally employed in several Member States — E 101 certificate — Determination of the legislation applicable — Obligation incumbent on the competent institution to base its findings on the employed person’s actual situation

   (Council Regulation No 1408/71, Title II)

1.  Article 14(2)(b) of Regulation No 1408/71, in its version as amended and updated by Regulation No 118/97, as amended by Regulation No 1992/2006, must be interpreted as meaning that a person who, under successive employment contracts stating the place of employment to be the territory of several Member States, in fact works during the term of each of those contracts only on the territory of one of those States at a time, cannot fall within the concept of ‘a person normally employed in the territory of two or more Member States’, within the meaning of that provision.

   To fall within Article 14(2) of Regulation No 1408/71, a person must ‘normally’ be employed in the territory of two or more Member States. It follows that, if employment in the territory of a single Member State constitutes the normal arrangement for the person concerned, such employment cannot fall within the scope of that provision. In such circumstances, the principle set out in Article 13(2)(a) of Regulation No 1408/71 could apply, as well as, where necessary, during the periods of interruption between the employment contracts, the principle set out in Article 13(2)(f).

   (see paras 39, 40, 50, 52, operative part)

2.  The issuing institution of an E 101 certificate is required to carry out a proper assessment of the facts relevant for the application of the rules relating to the determination of the legislation applicable in the matter of social security for the purposes of Title II of Regulation No 1408/71, in the version amended and updated by Regulation No 118/97 as amended by Regulation No 1992/2006, and, consequently, to ensure the correctness of the information contained in that certificate.

   When assessing the facts with a view to determining that legislation, the institution concerned may, where appropriate, take account not only of the wording of those documents, but also of factors such as the way in which employment contracts between the employer and the worker concerned had previously been implemented in practice, the circumstances surrounding the conclusion of those contracts and, more generally, the characteristics and conditions of the work performed by the company concerned, in so far as those factors may throw light on the actual nature of the work in question.

   If it is apparent from relevant factors other than contractual documents that an employed person’s situation in fact differs from that described in such documents, it is incumbent on the institution concerned, whatever the wording of those contractual documents, to base its findings on the employed person’s actual situation and, where appropriate, to refuse to issue the E 101 certificate and to withdraw the certificate if the competent institution of a Member State in which the employed person carries out work expresses doubts as to the correctness of the facts on which the certificate is based and/or as to compliance with the requirements of Title II of Regulation No 1408/71.

   (see paras 42, 44 to 47)