Connecticut, US
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| Wim Cocquyt

Legal Stay and Work in the EU Allow Third Country Nationals to Seek A1 Social Security Coverage

On 24 January 2019, the Court of Justice of the European Union ((CJEU or ‘the Court’)) has ruled in the interesting Holiday on Ice case (C-477/17) that deals with the right of third country nationals to invoke the applicability of the European social security regulations, which in principle cover EU nationals (and their family members).

EU Regulation 1231/2010 has extended the personal scope of application of the mentioned regulations to third country nationals who are not yet covered by the regulations solely on the ground of their nationality (as well as to their family members), provided that they are legally resident in the territory of an EU Member State, and are in a situation which is not confined in all respects within a single Member State.

With its judgment, in response to a preliminary ruling request from a Dutch Central Council of Appeal, the Court has clarified what it means for a third country national to be ‘legally resident’ in the territory of an EU Member State, for the purposes of the EU social security regulations.

The case is about two ice skaters, one Russian national and one Ukraine national, who live outside the EU and are temporarily hired by a Dutch employer, typically for the winter season, from October to May, to perform in ice shows in the Netherlands as well as in the other EU Member States. At a certain point in time, the Dutch social security authority has stopped issuing A1 certificates of coverage to the third country workers, stating that they did not have their domicile (or did not permanently live) in the EU.

The Advocate General Wahl, in his opinion of 27 September 2018 had argued that, indeed, the third country workers not having a work or residence title (such as e.g. an EU ICT permit), allowing them expressly to move and reside in the EU, could not be considered as legally resident in the EU and therefore could not invoke the protection of the European social security regulations.

The CJEU Judgment

With its judgment of 24 January 2019, the Court has ignored the opinion of the Advocate General.

In fact, the CJEU has ruled that the term legally resident, different in the various language versions of the Regulation, has to be interpreted according to the specific goal pursued by Regulation 1231/2010: the wish to extend the EU social security regulations to third country nationals that regularly ‘stay’ on the territory of one of the EU Member States, which is different from the concept of ‘domicile’ or ‘permanent residence’.

Therefore, the duration of the presence nor the fact that the third country workers continue to ‘live’ outside the EU are of fundamental importance to determine whether they are regularly present on the territory of the EU.

And what is relevant, according to the Court, to decide whether third country workers may invoke the EU social security Regulations to determine the legislation applicable to their work activities in the EU, is that the third country workers in question are legally staying and legally working on the territory of the EU Member States. Only in such way the principle of equal treatment, laid down in many EU immigration directives, can be honoured.

How We Can Help

The present ruling makes a very interesting link between EU immigration law instruments and the EU social security regulations, in the sense that it seeks support in the goals and terminology of the EU immigration directives to clarify why third country workers who are legally present and working on the territory of various EU Member States, should be able to see the same social security rules apply to them.

Fragomen, as one of the major experts in global and EU immigration, can assist your company with analyzing the best immigration strategy for your third country nationals to enter and move across Europe and analyse their correct social security position in respect of the European social security regulations, in line with the CJEU decisions.

For any social security related question, please contact us at fragomensocsec@fragomen.com.