Conclusions advocate-general on unpaid leave and incidental activities


Conclusions advocate-general on unpaid leave and incidental activities

The Netherlands need not take account of incidental activities in Belgium and Dutch legislation continues to apply during unpaid leave. This is advocate-general Spzunar’s conclusion in two cases before the Court of Justice.

22 March 2017

Dutch version

Incidental activities

The first case involved a programmer who lives in Belgium and works in the Netherlands for a Dutch employer. He worked in Belgium for thirteen days in 2009. Of those days, two had been spent on visiting clients while the remaining eleven days were spent working from home (answering emails and preparing and sending tenders). This represented 6.46% of his actual working hours. He worked in the Netherlands for the rest of the time. His contract stated nothing about working from home and his working from home had no fixed pattern either. The question was whether this employee “tends” to engage in activities in two Member States and, hence, performs part of his activities in another Member State.

These elements prompted the advocate-general (AG) to consider the activities in Belgium to be marginal activities. As a result, under application of the Regulation the programmer exclusively works in the Netherlands, according to the AG, which is why he is covered by the Dutch social security system. Although this case falls under the “former” Regulation, in substantiating his conclusion the AG refers to the current Regulation (Regulation 883/2004) and the Implementation Regulation (Regulation 987/2009). The Implementation Regulation stipulates that marginal activities are not taken into account when determining whether someone works in more than one Member State. The Administrative Commission has prepared a practical guide for Regulation 883/2004, discussing the coordination of the social security systems. It provides an interpretation for the concept of “marginal”. Whether activities are “marginal” depends on more than the mere nature of the activities. If activities account for less than 5% of the regular working hours or the remuneration, they, too, are basically considered to be marginal activities. The AG has followed the nature of the activities and has reached the conclusion that they do not represent significant activities.

Unpaid leave

The second case involved a female employee who lives in the Netherlands and usually performed her activities for her Dutch employer in the Netherlands. She had taken a period of three months of unpaid leave at her Dutch employer. She spent her time during this leave working as a ski teacher in Austria. The question here was whether she usually worked in more than one Member State.

According to the AG, her employment relationship with the Dutch employer had not changed and she had retained her employee status (as referred to in Regulation 1408/71). The 78-week cap included in Dutch legislation allowed her to be insured in the Netherlands during her unpaid leave. This is why she retained her employee status.

Considering the above, the AG has reached the conclusion that this female employee should be considered to be someone who performs activities in paid employment during her period of unpaid leave. Since she does so in Austria too, she is someone who tends to perform activities in paid employment in two Member States. Dutch legislation applies because she lives in the Netherlands. The outcome would be the same under the current Regulation, since she worked in her country of residence for more than 25%. The wait for the judgment by the Court of Justice of the European Union has now begun.


  • Conclusion of A-G M. Szpunar, March 8, 2017, no. C 569/15, ECLI:EU:C:2017:181
  • Conclusion of A-G M. Szpunar, March 8, 2017, no. C 570/15, ECLI:EU:C:2017:182
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