CJEU judges on incidental activities and unpaid leave
The CJEU judged in two cases: the Netherlands does not have to take account of incidental activities in Belgium, and Dutch law remains applicable during unpaid leave.
3 October 2017
The first case concerned a programmer who lives in Belgium and works in the Netherlands for a Dutch employer. In 2009, he worked in Belgium for thirteen days, spending two days visiting clients and the remaining eleven days working from home (responding to e-mails and preparing and sending proposals). This is 6.46% of his factual working hours. The rest of the time he worked in the Netherlands. His employment contract does not provide for working from home. Moreover, there was no fixed pattern in the employee’s working at home. The question was whether this employee is in the habit of working in two Member States and thus performs part of his work in another Member State.
The CJEU ruled that the programmer does not usually perform significant activities in Belgium and is thus not in the habit of working in Belgium. Moreover, since working at home had not been agreed upon in writing and only involved 6.5% of the working time, the CJEU argued that the programmer exclusively works in the Netherlands for the application of the Regulation, and is therefore covered by social insurance in the Netherlands.
Contrary to the AG, the CJEU did not discuss the nature of the activities in detail, but rather focused on the fact that working from home had not been agreed upon by contract and only involved a minor part of the total working hours. In practice, the starting point was that one day a month suffices for application of the multistate provision (provided it does not concern marginal activities). The CJEU, however, only indicated that 6.5% of the time does not suffice if no agreements have been made for that person to work in another Member State. The Court of Appeal did not discuss the nature of the activities either (did this concern marginal activities?). Although in their opinion the AG opened the door for the CJEU to make an explicit statement on the principle of a changing place of work and the fact that working at home is booming, the CJEU unfortunately let this chance go by.
The second case concerned a female employee who lives in the Netherlands and usually worked in the Netherlands for her Dutch employer. She took unpaid leave for a period of three months with her Dutch employer. During this leave she worked as a ski instructor in Austria. This case was about the question whether or not she worked in several Member States.
The decisive aspect for determining whether the ski instructor performed salaried employment in the Netherlands during the unpaid leave is whether she was covered by insurance under Dutch legislation. During her unpaid leave she could remain insured under national law in the Netherlands up to a maximum of 78 weeks. Then the question was whether she usually performed significant activities in Austria. The CJEU argued that it is up to the Dutch court to test whether this is the case. The circumstances that are relevant for this test are the same as in the other ruling: the duration of the activities, the nature of the activities and what has been recorded about that by the employer and the employee, and the activities that have effectively been performed.
If the activities in Austria effectively constituted significant activities, the employee simultaneously performed work in two Member States and the multistate provision applies. In this case, this would mean that Dutch legislation applies (the legislation of her country of residence). Note that this judgment also applies to situations to which Regulation 883/2004 is applicable.
- Dutch Supreme Court: HvJ EU 13 September 2017, no. C 569/15, ECLI:EU:C:2017:673
- Dutch Supreme Court: HvJ EU 13 September 2017, no. C 570/15, ECLI:EU:C:2017:674