(September 9, 2015)

On September 9, 2015 the European Court of Justice (CJEU) ruled in joined Cases C‑72/14 (X versus Inspecteur van Rijksbelastingdienst) and C-197/14 (T. A. van Dijk versus Staatssecretaris van Financiën) (ECLI:EU:C:2015:564).

 

·        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 the Regulation do not apply?

 

·        Is it significant 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 der Nederlanden, 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?

 

The actions in the main proceedings and the questions referred for a preliminary ruling

 

Case C‑72/14 

·        X is a Netherlands national and in 2006 resided in the Netherlands and worked as a helmsman on a motor vessel which was registered in the Netherlands.

 

·        In 2006, the vessel operated commercially not only on the Rhine, but mostly on other inland waterways.

 

·        Also in 2006, X was on the payroll of a Luxembourg-based company.

 

·        On 25 November 2004, the Ministry of Transport and Water Management (Ministerie van Verkeer en Waterstaat) issued a document certifying that the vessel belongs to Rhine Navigation (Rijnvaartverklaring), as referred to in Article 1(h) and Article 5(1) of the Law on Inland Waterway Transport (Wet vervoer binnenvaart), to the owner of the vessel, a company based in Rotterdam (Netherlands).

 

·        X applied to the competent authority of the Grand Duchy of Luxembourg to be affiliated to the Luxembourg social security scheme, which request was granted. On 1 March 2006 the Luxembourg authority, ‘Union des caisses de maladie à Luxembourg’, issued an E 101 certificate in respect of X for his work.

 

·        X submitted a return for income tax and social security contributions for the year 2006 on a taxable income from work of EUR 31 647. In his return X applied for an exemption from social security contributions and a reduction in order to avoid double taxation. In the assessment, the national tax authority inspector granted neither the exemption nor the reduction requested. In addition, a correction was applied to the calculation of the tax.

 

·        A tax assessment was issued to X in respect of income tax and social security contributions owing for the year 2006, on the basis of a taxable work income of EUR 28 914 euros.

 

·        X lodged an objection against inter alia the refusal to grant the exemption from social security contributions to the year in question. The national tax authority inspector rejected that objection as unfounded.

 

·        X brought proceedings against the decision rejecting his claim before the Rechtbank Breda (District Court, Breda), which held it to be unfounded. X then appealed against the judgment of the Rechtbank Breda before the Gerechtshof te ’s-Hertogenbosch (Regional Court of Appeal, ’s-Hertogenbosch (Netherlands)).

 

·        The Gerechtshof te ’s-Hertogenbosch considers that the Rechtbank Breda was correct in holding that X must be considered a Rhine boatman within the meaning of the Rhine Agreement and that, therefore, the designation rules contained in that agreement are applicable to him. Thus, the Gerechtshof te ’s-Hertogenbosch seeks clarification as to the potential scope of the E 101 certificate issued on 1 March 2006 by the Luxembourg institution competent for issuing that type of certificate.

 

·        In those circumstances the Gerechtshof te ’s-Hertogenbosch decided to stay proceedings and to refer to the Court the following questions 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 the Regulation do not apply?
2. Is it significant 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?

Case C‑197/14 

·        From 1 January to 30 June 2007 M van Dijk, who was at that time resident in the Netherlands, was employed by Christa Intershipping Sarl, a company established in Luxembourg. During that period he worked within the territory of a number of Member States as a captain on an inland waterway vessel, primarily on the Rhine, its tributaries and its links to the open sea.

 

·        The Luxembourg authorities issued an E 101 certificate to Mr van Dijk which stated that the Luxembourg social security legislation is applicable to him as from 1 September 2004, pursuant to Regulation No 1408/71.

 

·        Mr van Dijk was served with an income tax assessment for the year 2007 in respect of social security contributions and a tax assessment for health care insurance contributions for the same year, calculated on the basis of his income. Mr van Dijk challenged those tax assessments but they were upheld by the Netherlands tax authorities.

 

·        After he brought proceedings against the decisions rejecting his claim before the District Court, The Hague (Rechtbank te ’s-Gravenhage) and the latter had upheld the tax assessments in question, Mr van Dijk appealed before the Gerechtshof te ’s-Gravenhage.

 

·        The Gerechtshof te ’s -Gravenhage upheld the judgment of the Rechtbank te ’s-Gravenhage. In particular, the Gerechtshof te ’s-Gravenhage held that Mr van Dijk had to be considered a Rhine boatman within the meaning of the Rhine Agreement and that, on the basis of Article 11(2) of that agreement, the Netherlands social security scheme was applicable to him. The Gerechtshof te ’s-Gravenhage further held no legal value could be attributed to the E 101 certificate in question, since it had been issued on the basis of Regulation No 1408/71, which was not applicable to Mr van Dijk, in accordance with Article 7(2)(a) thereof.

 

·        Mr van Dijk appealed in cassation against the judgment of the Gerechtshof te ’s-Gravenhage before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands).

 

·        It is apparent from the order for reference that the Hoge Raad der Nederlanden has previously had the opportunity to rule on the scope of the E 101 certificate in a case similar to the one at issue in the main proceedings.

 

·        In its judgment of 11 October 2013 (No 12/04012, ECLI:NL:HR:2013:CA0827), the Hoge Raad der Nederlanden held that no value could be attributed to the issuance of an E 101 certificate and that the principle of sincere cooperation had not been infringed, since Mr van Dijk had to be considered a Rhine boatman within the meaning of Article 1(m) of the Rhine Agreement and was, accordingly, subject to that agreement and not Regulation No 1408/71.

 

·        The Hoge Raad took this decision without referring any questions to the Court of Justice for preliminary ruling as it was of the view that the matter could not be open to any reasonable doubt.

 

·        By contrast, by decision of 7 February 2014 (No 13/00040, ECLI:NL:GHSHE:2014:248, V-N 2014/12.15), the Gerechtshof te ’s-Hertogenbosch referred two questions to the Court for a preliminary ruling; they are the subject-matter of Case C‑72/14.

 

·        Thus, since the answer to those questions may be relevant for the outcome of the dispute before it, the Hoge Raad der Nederlanden seeks to know whether it may, in accordance with its judgment of 11 October 2013, rule on that dispute without referring questions to the Court of Justice for a preliminary ruling and without awaiting the answers to the questions referred for a preliminary ruling by the Gerechtshof te ’s-Hertogenbosch.

 

·        In particular, the Hoge Raad der Nederlanden asks whether, since it takes the view that the answer to the question of interpretation of EU law raised before it is so obvious as to leave no scope for any reasonable doubt, the conditions set out in paragraph 16 of the judgment in Cilfit and Others (283/81, EU:C:1982:335) may still be regarded as being met.

 

·        It is on that basis that the Hoge Raad der Nederlanden decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

1. Is the Hoge Raad der Nederlanden, 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?

·        By decision of the President of the Court of 24 February 2015, Cases C‑72/14 and C‑197/14 were joined for the purposes of the oral procedure and the judgment.

 

The CJEU ruled as follows:

1.      Article 7(2)(a) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, and Articles 10c to 11a, 12a and 12b of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation No 1408/71, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, must be interpreted as meaning that a certificate issued by the competent institution of a Member State in the form of an E 101 certificate in order to certify that a worker is subject to the social security legislation of that Member State, when that worker comes within the scope of the Agreement of 13 February 1961 concerning the Social Security of Rhine Boatmen, signed at Geneva on 30 November 1979, is not binding on the institutions of other Member States. The fact that the issuing institution did not intend to issue a genuine E 101 certificate but used the standard form of that certificate for administrative reasons is irrelevant in that regard.

 

2.      The third paragraph of Article 267 TFEU must be interpreted as meaning that a national court or tribunal against whose decisions there is no judicial remedy under national law, such as the referring court, is not required to make a reference to the Court of Justice of the European Union on the sole ground that a lower national court, in a case similar to the one before it and involving the same legal issue, has referred a question to the Court for a preliminary ruling; nor is it required to wait until an answer to that question has been given.

 

For further information click here to be forwarded to the text of the ruling as published on the website of the CJEU, which will open in a new window.

 

Did you know that in our section CJEU Rulings we have made a selection of rulings of the CJEU? We have organized these rulings based on the subject they relate to (e.g. Freedom of establishment, Free movement of capital, Indirect taxes on the raising of capital, etc).

 

 

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