(May 13, 2015)

On May 13, 2015 the opinion of Advocate General Wahl in Joined Cases C‑72/14 Mr. X and C-197/14 T.A. van Dijk (ECLI:EU:C:2015:319) was published on the website of the European Court of Justice (CJEU).

·       In [the judgment in FTS, C‑202/97, EU:C:2000:75], the Court of Justice ruled that an E 101 certificate, issued by the competent institution of a Member State, is binding on the social security institutions of other Member States, even if the content of that certificate is incorrect. Does that decision also apply to cases such as that at issue here, where the designation rules of [Regulation No 1408/71] do not apply?

·       Is it of significance for the answer to that question that it was not the intention of the competent institution to issue an E 101 certificate, yet for administrative reasons it consciously and deliberately used documents which, judging by their format and content, appear to be E 101 certificates, while the interested party believed, and was also reasonably entitled to believe, that he had received such a certificate?

·       Is the Hoge Raad, as the highest national court, required, because of a question referred for a preliminary ruling by a lower national court, to refer a question to the Court of Justice for a preliminary ruling or must it await the answer to that question referred by the lower national court, even if it takes the view that the correct application of EU law on the matter to be decided by it is so obvious as to leave no scope for any reasonable doubt as to how that question must be answered?

·       If the first question is to be answered in the affirmative, are the Netherlands authorities in the area of social security then bound by an E 101 certificate issued by the authorities of another Member State, even where the case involves a Rhine boatman, with the result that the rules on the applicable legislation in Regulation No 1408/71, to which that certificate refers, are not applicable pursuant to Article 7(2)(a) of that regulation?

Facts, procedures and the questions referred

·       In 2006 and part of 2007 respectively, Messrs X and van Dijk, nationals and residents of the Netherlands, worked aboard waterborne vessels operating commercially on the Rhine (albeit not exclusively on that river).

·       In Case C‑72/14 concerning Mr X, the vessel was registered in the Netherlands as a Rhine navigation vessel with a Netherlands-based company as its owner. No mention was originally made in that registration under the heading ‘Operator’. In 2006, the Luxembourgish authorities issued AAAA, a Luxembourg-based company which employed Mr X, with an operating certificate. In 2007, that company was indicated as the operator of the vessel under the Dutch registration.

·       As for Mr van Dijk, from 1 January to 30 June 2007 he worked for a shipping company established in Luxembourg.

·       In both cases, the competent Luxembourgish authority issued E 101 certificates, according to which Messrs X and van Dijk, respectively, were subject to the social security legislation of Luxembourg. However, those certificates were not recognised by the Dutch authorities, who considered Messrs X and van Dijk to be subject instead to Dutch social security legislation and liable to pay Dutch social security contributions, on the basis that the two men were supposedly Rhine boatmen. The Dutch authorities issued both men with tax assessments, which they subsequently challenged.

·       In Case C‑72/14, Mr X brought proceedings before the Rechtbank Breda, after which he brought an appeal against the judgment at first instance before the Gerechtshof te ’s-Hertogenbosch. Entertaining doubts as to the interpretation of Regulation No 1408/71, that court decided on 7 February 2014 to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1)        In [the judgment in FTS, C‑202/97, EU:C:2000:75], the Court of Justice ruled that an E 101 certificate, issued by the competent institution of a Member State, is binding on the social security institutions of other Member States, even if the content of that certificate is incorrect. Does that decision also apply to cases such as that at issue here, where the designation rules of [Regulation No 1408/71] do not apply?

(2)        Is it of significance for the answer to that question that it was not the intention of the competent institution to issue an E 101 certificate, yet for administrative reasons it consciously and deliberately used documents which, judging by their format and content, appear to be E 101 certificates, while the interested party believed, and was also reasonably entitled to believe, that he had received such a certificate?

·       In Case C‑197/14, Mr van Dijk initially brought proceedings before the Rechtbank te ’s-Gravenhage, followed by an appeal before the Gerechtshof te ’s-Gravenhage. He then lodged an appeal in cassation before the Hoge Raad against the judgment of the Gerechtshof, which was also the subject of a cross-appeal in cassation brought by the Staatssecretaris van Financiën (State Secretary for Finance). In the wake of the decision to refer questions for a preliminary ruling in Case C‑72/14, the Hoge Raad decided on 28 March 2014 to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1)        Is the Hoge Raad, as the highest national court, required, because of a question referred for a preliminary ruling by a lower national court, to refer a question to the Court of Justice for a preliminary ruling or must it await the answer to that question referred by the lower national court, even if it takes the view that the correct application of EU law on the matter to be decided by it is so obvious as to leave no scope for any reasonable doubt as to how that question must be answered?

(2)        If the first question is to be answered in the affirmative, are the Netherlands authorities in the area of social security then bound by an E 101 certificate issued by the authorities of another Member State, even where the case involves a Rhine boatman, with the result that the rules on the applicable legislation in Regulation No 1408/71, to which that certificate refers, are not applicable pursuant to Article 7(2)(a) of that regulation?

·       In Case C‑72/14, written observations were lodged by Mr X, the Netherlands Government, the Czech Government, and by the Commission. In Case C‑197/14, written observations were lodged by Mr van Dijk, the Netherlands Government, the German and Greek Governments, and by the Commission.

·       Cases C‑72/14 and C‑197/14 were joined on 24 February 2014. On the same date, the Court decided, pursuant to Article 76(2) of the Rules of Procedure, not to hold a hearing.

In the opinion the Advocate proposes the following reply to the questions referred by the by the Gerechtshof te ’s-Hertogenbosch and Hoge Raad (Netherlands):

·         In circumstances where the authorities of a Member State have issued an E 101 certificate to an insured person which designates the social security legislation of that Member State as being applicable to that person, but where the applicable social security legislation properly falls to be coordinated by the Agreement concerning social security for Rhine boatmen, dated 27 July 1950, revised on 13 February 1961, and subsequently revised on 30 November 1979 (a matter for the referring courts to verify), Article 7(2)(a) of 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 Community is to be interpreted as not requiring the authorities of another Member State to accord recognition to that certificate.

·         A national court of last instance which takes the view that the correct application of EU law to a matter on which it is called upon to rule is so obvious as to leave no scope for any reasonable doubt is not required, under Article 267(3) TFEU, to refer a question to the Court of Justice for a preliminary ruling merely because a lower-tier court from the same Member State has requested a preliminary ruling on the same point of EU law.

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