Dutch Supreme Court delivers final ruling on incidental activities and unpaid leave
The Supreme Court follows the preliminary ruling of the CJEU and judges that the Netherlands does not have to take account of incidental activities in Belgium, and Dutch social security legislation remains applicable during unpaid leave.
24 january 2018
The Dutch Supreme Court had doubts about the application of the European Social Security Regulation in two cases. It referred a question to the CJEU the question as to how the rules are to be interpreted in the respective cases. We have already informed you about these CJEU judgments. The Dutch Supreme Court has now also delivered its final ruling in these cases.
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. Having regard to this judgment, the Dutch Supreme Court now ruled that the programmer exclusively worked in the Netherlands and was thus covered by social insurance in that country.
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 CJEU argued that this ski instructor worked in two Member States if she:
- was insured under national law in the Netherlands during her unpaid leave;
- ordinarily carried out significant activities during that period in Austria.
The Supreme Court has now reached the conclusion that the above conditions have effectively been met. Having regard to the preliminary ruling of the CJEU, the Supreme Court ruled that the ski instructor worked in two Member States and thus remained insured in the Netherlands.
- Dutch Supreme Court 19 January 2018, no 14/05851, ECLI:NL:HR:2018:50
- Dutch Supreme Court 19 January 2018, no 14/05346, ECLI:NL:HR:2018:49