New Court of Justice arrests regarding the “normal employment” in different Member States

As a general rule, a person is subject to the social security system of the Member State of employment. Another social security scheme may, however, apply if the person “normally works” in two or more Member States.

In two arrests of 13 September 2017 the European Court of Justice specifies whether a person is to be regarded as “normally employed” in a Member State, when the employee respectively has taken “unpaid leave” or works a few hours in the territory of his Member State of residence without that being set out in any arrangement with the employer.

In the first case, the Court considers that the person who takes unpaid leave is to be regarded as “a person who is employed”, if according to the national social security legislation the person is covered by a social security scheme, irrespective of the existence of an employment relationship. The Court thus confirms its earlier case-law with regard to the suspension of an employment relationship during parental leave.

In the second one, the Court reiterates that the national Court must pay attention to the duration of the periods of activity and to the nature of the employment as defined in the contractual documents. In this case, the employment contract did not provide for the employee concerned to carry out work in the territory of his Member State of residence. Moreover, he worked only approximately 6,5 % of all of the hours in that Member State, mostly by working from home. Consequently, the Court held that he was not “normally employed” in the territory of his Member State of residence.

Both arrests are published on the Court’s website.