Salzburger Gebietskrankenkasse and Bundesminister für Arbeit, Soziales und Konsumentenschutz v Alpenrind GmbH and Others.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2018:669
• Docket Number: C-527/16
• Celex Number: 62016CJ0527
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 06 September 2018

JUDGMENT OF THE COURT (First Chamber)

6 September 2018 ( *1 )

(Reference for a preliminary ruling — Social security — Regulation (EC) No 987/2009 — Articles 5 and 19(2) — Workers posted in a Member State other than that in which the employer usually carries out its activities — Issue of the A1 attestations by the Member State of origin after recognition by the host Member State that the workers are subject to its social security scheme — Opinion of the Administrative Board — Incorrect issue of A1 certificates — Finding — Binding nature and retroactive effect of those certificates — Regulation (EC) No 883/2004 — Legislation applicable — Article 12(1) — Concept of a person ‘sent to replace another person’)

In Case C‑527/16,

REQUEST for a preliminary ruling under Article 267 TFEU from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), made by decision of 14 September 2016, received at the Court on 14 October 2016, in the proceedings

Salzburger Gebietskrankenkasse,

Bundesminister für Arbeit, Soziales und Konsumentenschutz,

Interested parties:

Alpenrind GmbH,

Martin-Meat Szolgáltató és Kereskedelmi Kft,

Martimpex-Meat Kft,

Pensionsversicherungsanstalt,

Allgemeine Unfallversicherungsanstalt,

THE COURT (First Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, C.G. Fernlund, J.-C. Bonichot, S. Rodin and E. Regan (Rapporteur), Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 28 September 2017,

after considering the observations submitted on behalf of:

– the Salzburger Gebietskrankenkasse, by P. Reichel, Rechtsanwalt,

– Alpenrind GmbH, by R. Haumer and W. Berger, Rechtsanwälte,

– Martimpex-Meat Kft and Martin-Meat Szolgáltató és Kereskedelmi Kft, by U. Salburg and G. Simonfay, Rechtsanwälte,

– the Austrian Government, by G. Hesse, acting as Agent,

– the Belgian Government, by L. Van den Broeck and M. Jacobs, acting as Agents,

– the Czech Government, by M. Smolek, J. Vláčil, J. Pavliš and O. Šváb, acting as Agents,

– the German Government, by T. Henze and D. Klebs, acting as Agents,

– Ireland, by L. Williams, G. Hodge, J. Murray and E. Creedon and by A. Joyce and N. Donnelly, acting as Agents,

– the French Government, by C. David, acting as Agent,

– the Hungarian Government, by M. Fehér, acting as Agent,

– the Polish Government, by B. Majczyna, acting as Agent, and by M. Malczewska, adwokat,

– the European Commission, by B.-R. Killmann and D. Martin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 31 January 2018,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation, first, of Article 12(1) 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 (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), as amended by Commission Regulation (EU) No 1244/2010 of 9 December 2010 (OJ 2010 L 338, p. 35) (‘Regulation No 883/2004’) and, second, Article 5 and 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 No 883/2004 (OJ 2009 L 284, p. 1), as amended by Regulation No 1244/2010 (OJ 2010 L 338, p. 35) (‘Regulation No 987/2009’).

2 The request has been made in proceedings between Salzburger Gebietskrankenkasse (Salzburg Regional Health Insurance Fund) (‘the Health Insurance Fund’) and the Bundesminister für Arbeit, Soziales und Konsumentenschutz (Federal Minister of Labour, Social Affairs and Consumer Protection) (‘the Minister’) and Alpenrind GmbH, Martin-Meat Szolgáltató es Kereskedelmi Kft (‘Martin-Meat’), Martimpex-Meat Kft (‘Martimpex’), the Pensionsversicherungsanstalt (Pension Insurance Authority) and the Allgemeine Unfallversicherungsanstalt (General Accident Insurance Authority) concerning the social security legislation applicable to persons posted to work in Austria under an agreement between Alpenrind, established in Austria, and Martimpex, established in Hungary.

Legal framework

Regulation No 883/2004

3 Recitals 1, 3, 5, 8, 15, 17 to 18a and 45 of Regulation No 883/2004 are worded as follows: ‘(1) The rules for coordination of national social security systems fall within the framework of free movement of persons and should contribute towards improving their standard of living and conditions of employment. … (3) Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the [Union] has been amended and updated on numerous occasions in order to take into account not only developments at [Union] level, including judgments of the Court of Justice, but also changes in legislation at national level. Such factors have played their part in making the [Union] coordination rules complex and lengthy. Replacing, while modernising and simplifying, these rules is therefore essential to achieve the aim of the free movement of persons. … (5) It is necessary, within the framework of such coordination, to guarantee within the [Union] equality of treatment under the different national legislation for the persons concerned. … (8) The general principle of equal treatment is of particular importance for workers who do not reside in the Member State of their employment, including frontier workers. … (15) It is necessary to subject persons moving within the [Union] to the social security scheme of only one single Member State in order to avoid overlapping of the applicable provisions of national legislation and the complications which could result therefrom. … (17) With a view to guaranteeing the equality of treatment of all persons occupied in the territory of a Member State as effectively as possible, it is appropriate to determine as the legislation applicable, as a general rule, that of the Member State in which the person concerned pursues his/her activity as an employed or self-employed person. … (18) In specific situations which justify other criteria of applicability, it is necessary to derogate from that general rule. (18a) The principle of single applicable legislation is of great importance and should be enhanced. … … (45) Since the objective of the proposed action, namely the coordination measures to guarantee that the right to free movement of persons can be exercised effectively, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of that action, be better achieved at [Union] level, the [Union] may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. …’

4 In Title II of that regulation entitled, ‘Determination of the legislation applicable’, Article 11, headed ‘General rules’, provides: ‘1. Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title. … 3. Subject to Articles 12 to 16: (a) a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State. …’

5 Also in Title II, Article 12 of that regulation, entitled ‘Special rules’, provided in paragraph 1, in the version applicable at the beginning of the period from 1 February 2012 to 13 December 2013 (‘the period at issue’): ‘A person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted by that employer to another Member State to carry out work on that employer’s behalf shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed 24 months and that he/she is not sent to replace another person.’

6 During the period at issue, Article 12(1) of Regulation No 883/2004 was amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, amending Regulation No 883/2004 and Regulation No 987/2009 (OJ 2012 L 149, p. 4) adding the word ‘posted’ to the end of that paragraph.

7 Under Title IV of that regulation, entitled ‘Composition and working methods of the Administrative Commission’, Article 71(1) provides: ‘The Administrative Commission for the Coordination of Social Security Systems (hereinafter called the the Administrative Commission) attached to the [European Commission] shall be made up of a government representative from each of the Member States, assisted, where necessary, by expert advisers. A representative of the [European Commission] shall attend the meetings of the Administrative Commission in an advisory capacity.’

8 Article 72 in Title IV, headed ‘Tasks of the Administrative Commission’, is worded as follows: ‘The Administrative Commission shall: (a) deal with all administrative questions and questions of interpretation arising from the provisions of this Regulation or those of [Regulation No 987/2009], or from any agreement concluded or arrangement made...