Article 13(2)(a) of Council Regulation (EEC) No 1408/71, as amended, meant that a resident of a member state, who came within the scope of that Regulation, and who worked for several days per month on the basis of an on-call contract in the territory of another member state, was subject to the legislation of the state of employment both on the days on which he performed the employment activities and on the days on which he did not. Article 13(2)(a), read in conjunction with article 13(1) of that Regulation, permitted a migrant worker, who was subject to the legislation of the state of employment, to receive, by virtue of national legislation of the member state of residence, an old-age pension and family benefits from the latter state.

The Court of Justice of the European Union so held on a reference for a preliminary ruling by the Centrale Raad van Beroep (the Netherlands), in three sets of proceedings between the applicants, Ms Franzen, Mr Giesen and Mr van den Berg, and the Raad van bestuur van de Sociale verzekeringsbank (Management Board of the Social Insurance Bank) (“the SVB”) respectively, regarding decisions by which the SVB had refused to grant Ms Franzen child benefits and reduced the partner’s allowance and old-age pension, respectively, of Mr Giesen and Mr van den Berg.

The applicants were nationals and residents of the Netherlandst. All three applicants had worked, part-time, in Germany for brief periods. The applicants’ earnings from those employments were very low, so that they were not covered by any statutory social insurance scheme.

The Centrale Raad van Beroep took the view that, during the periods at issue, the applicants could be considered to be employed persons within the meaning of article 2 of Regulation No 1408/71, read in conjunction with article 1(a) thereof, and that the national legislation fell within the scope ratione materiae of that Regulation. However, the question might arise as to whether, during the periods at issue, the applicants were subject to German legislation by virtue of article 13(2)(a) of Regulation No 1408/71 and, if so, whether the exclusive operation of that provision meant that Netherlands legislation was not applicable.

THE COURT (Fourth Chamber) said that since it was apparent from previous case law (Bestuur van de Sociale Verzekeringsbank v Kits van Heijningen (Case C-2/89) EU:C:1990:183; [1990] ECR I-1755) that the amount of time devoted to the employment was irrelevant in determining whether Regulation No 1408/71 was applicable to the person concerned, a person who was employed for two or three days per month and who satisfied the conditions laid down in article 1(a) and article 2(1) of Regulation No 1408/71, namely that that person was, as an employee, subject to the legislation of one or more member states and was a national of one of the member states, would fall within the scope of application of that Regulation. Under article 13(2)(a), such a person was subject to the legislation of the member state in whose territory he was employed. The court had already condoned exceptions to the single state principle and had recognised that a member state which did not have jurisdiction by virtue of the provisions of Title II of Regulation No 1408/71 had the power to grant, under certain conditions, family benefits to a migrant worker under its own national law: Bosmann v Bundesagentur für Arbeit-Familienkasse Aachen (C‑352/06) EU:C:2008:290); [2008] ECR I-3827 and Hudzinski v Agentur für Arbeit Wesel-Familienkasse (C‑611/10 and C‑612/10) EU:C:2012:339; [2012] 3 CMLR 23.