Opinion of Advocate General Wahl delivered on 27 September 2018.

• Jurisdiction: European Union
• Celex Number: 62017CC0477
• ECLI: ECLI:EU:C:2018:783
• Date: 27 September 2018
• Docket Number: C-477/17
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Provisional text

OPINION OF ADVOCATE GENERAL

WAHL

delivered on 27 September 2018(1)

Case C‑477/17

Raad van bestuur van de Sociale Verzekeringsbank

v

D. Balandin,

I. Lukashenko,

Holiday on Ice Services BV

(Request for a preliminary ruling from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands))

(Preliminary ruling — Social security — Regulation No 1231/2010 — Extension of coordination of social security systems to citizens of third countries legally resident in the territory of a Member State — Right to move and reside in the European Union — Abuse)

1. It has been a few years, but I remember well visiting a Holiday on Ice show as a young boy. At the time, I was fascinated by the fantastic performance that resulted from the coming together of many different protagonists: ice skaters, lighting engineers, musicians and many more. What many spectators of Holiday on Ice do not consider, however, is that behind the scenes just as many things, if not more, have to come together in order to put on such a show. The present request for a preliminary ruling from the Centrale Raad van Beroep (Higher Social Security and Civil Service Court, Netherlands) illustrates just how many legal issues alone are involved in bringing the show to people across Europe.

2. Specifically at issue is the question whether ice skaters working for Holiday on Ice, who are nationals of third countries, are entitled to coordinated social security coverage while touring in various Member States of the European Union.

3. While Regulation Nos 1231/2010 (2) and 883/2004 (3) are the soloists in this production of EU law, there is also a mighty ensemble of other legislative instruments, such as the Schengen Visa Code, (4) the Residence Permit Regulation (5) and the Single Permit Directive, (6) which are all relevant for the resolution of the question referred by the Centrale Raad van Beroep.

I. Legal Framework

A. EU law

1. Regulation No 1231/2010

4. Regulation No 1231/2010 replaced Regulation No 859/2003 (7) and its wording is almost identical to that of the earlier regulation. Both regulations aim to ensure that the rules for coordinating social security schemes applied to nationals of third countries are the same as those which apply to European citizens by extending the provisions of Regulation Nos 883/2004 and 987/2009 (8) and, respectively, Regulation Nos 1408/71 (9) and 574/72 (10) to nationals of third countries.

5. The preamble to Regulation No 1231/2010 states, inter alia:

‘(1) The European Parliament, the Council and the European Economic and Social Committee have called for the better integration of nationals of third countries who are legally resident in the territory of the Member States by giving them a set of uniform rights which match as closely as possible those enjoyed by citizens of the Union.

…

(8) In order to avoid a situation where employers and national social security bodies have to manage complex legal and administrative situations concerning only a limited group of persons, it is important to enjoy the full benefits of modernisation and simplification in the field of social security by making use of a single legal coordination instrument combining Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009.

…

(10) The application of Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by those Regulations solely on the ground of their nationality must not give them any entitlement to enter, to stay or to reside in a Member State or to have access to its labour market. …

(11) Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 should, by virtue of this Regulation, be applicable only in so far as the person concerned is already legally resident in the territory of a Member State. Legal residence should therefore be a prerequisite for the application of those Regulations.’

6. Article 1 of Regulation No 1231/2010 reads:

‘Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 shall apply to nationals of third countries who are not already covered by those Regulations solely on the ground of their nationality, as well as to members of their families and to their survivors, provided that they are legally resident in the territory of a Member State and are in a situation which is not confined in all respects within a single Member State.’

2. Regulation No 883/2004

7. Article 1 of Regulation No 883/2004 (‘Definitions’) provides, inter alia:

‘(j) “residence” means the place where a person habitually resides;

(k) “stay” means temporary residence;’

8. Article 13(1) of that regulation, as amended by Regulation (EU) No 465/2012 (11), reads:

‘A person who normally pursues an activity as an employed person in two or more Member States shall be subject:

(a) to the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in that Member State; or

(b) if he/she does not pursue a substantial part of his/her activity in the Member State of residence:

(i) to the legislation of the Member State in which the registered office or place of business of the undertaking or employer is situated if he/she is employed by one undertaking or employer; …’

9. The provisions of Regulation No 883/2004 are supplemented by Regulation No 987/2009, its implementing regulation.

B. National law

10. Referring to Regulation No 1231/2010, the Policy Guidelines of the Raad van bestuur van de Sociale Verzekeringsbank (Board of Management of the Social Insurance Bank; ‘SvB’) provide, in relation to nationals of countries outside the European Union, that Regulation No 883/2004 is to apply to nationals of third countries who are not already covered by that regulation solely on the ground of their nationality, if such nationals are legally resident in the territory of a Member State and move legitimately within the European Union.

11. With regard to the term ‘legal residence’, which is not defined in Regulation No 1231/2010, those guidelines further provide that legal residence in the Netherlands is assumed if such residence is lawful within the meaning of Article 8 of the Vreemdelingenwet 2000 (Law on Foreign Nationals 2000; ‘Vw 2000’), with the proviso that the SvB will not assume legal residence if a foreign national resides in the Netherlands pending an application for first admission.

12. In addition, third-country nationals must satisfy the mobility criterion of Regulation No 883/2004 in the same way as EU nationals.

13. Regarding the territorial scope of Regulation No 883/2004, the Policy Guidelines of the SvB state that the application of Regulation No 883/2004 is ‘in principle only at issue if a person lives and works in the territory of the European Union’, save for certain exceptions found in the case-law of the Court of Justice.

II. Facts, procedure and the question referred

14. D. Balandin, a Russian national, and I. Lukashenko, a national of Ukraine, are employed by Holiday on Ice Services BV (‘HOI’), a company with its registered office in Amsterdam and its principal place of business in Utrecht. During the winter season, HOI organises ice-skating shows in various Member States.

15. The employees of HOI spend a couple of weeks every year in the Netherlands in order to prepare for upcoming events. A number of the employees then perform in the Netherlands while other employees perform in other Member States, mostly France and Germany.

16. During the period of training and, where applicable, performing, all the third-country nationals appear to be legally present in the Netherlands. Thereafter, some third-country nationals remain in the Netherlands for the entire season, with the necessary permits obtained for them on the basis of national law. Some third-country nationals, however, stay in other Member States where they perform in shows, often on the basis of a ‘Schengen-visa’.

17. For a number of years, the SvB has issued the third-country nationals employed by HOI with ‘A1-statements’ for the duration of the performance season, most recently on the basis of Article 19(2) of Regulation No 987/2009. Those statements attested that the Netherlands legislation in the field of social security would apply to the employees and that the corresponding social security contributions would be paid in the Netherlands. Nonetheless, from the 2015/16 season, the SvB refused to grant the A1-statements to the third-country nationals employed by HOI, arguing that it had incorrectly issued such statements in the past.

18. After consultation, partly following interim relief granted by the judge hearing applications for interim measures at the Rechtbank Amsterdam (District Court, Amsterdam, Netherlands), the SvB finally issued A1-statements that were valid until 1 May 2016. However, the season only ended on 22 May 2016, so that a dispute still exists in respect of those final weeks.

19. In a judgment of 28 April 2016, the Rechtbank Amsterdam decided that the SvB should have issued A1-statements valid for the full season, that is, until 22 May 2016.

20. The SvB subsequently brought an appeal against that judgment before the referring court.

21. In the view of the referring court, Balandin and Lukashenko do not fall within the scope of Article 2 of Regulation No 883/2004, since they are not nationals of a Member State, stateless persons or refugees. They can benefit from the provisions of that regulation only if they should fall within the scope of Regulation No 1231/2010, whose purpose is to extend, under certain conditions, the scope of Regulation No 883/2004 and its implementing regulation to third-country nationals.

22. According to the referring court, it is not disputed that Balandin and Lukashenko did not reside in the Netherlands or in another Member State, but stayed and worked temporarily within the EU, within the meaning of Article 1(k) of Regulation No 883/2004. In the view...