This case concerns the interpretation of Regulation No 1408/71 and Regulation No 883/2004, with regards to establishing the social security legislation applicable to flight and cabin crew working in two or more Member States.
The crew in this case was working for an airline established in one Member State, where that crew was not covered by E101 certificates and where that crew worked for 45 minutes per day in premises intended to be used by staff, known as the ‘crew room’ which that airline has in the territory of another Member State in which that flight and cabin crew was also residing.
The Court of Justice of the European Union (CJEU) found that the social security legislation applicable, during the periods concerned, to these specific Ryanair employees who are not covered by the E101 certificates adduced by Ryanair is, subject to verification by the referring court, Italian legislation.
The CJEU’s reasoning addressed both Regulations in turn.
Starting with Article 14(2)(a)(i) of Regulation No 1408/71, the CJEU recalled the principle that a person who is a member of the flight and cabin crew of an airline operating international flights and is employed by a branch or permanent representation owned by that airline in the territory of a Member State other than that in which it has its registered office or place of business, is subject to the legislation of the Member State in whose territory such branch or permanent representation is situated. [Para. 53].
The application of that provision requires, accordingly, that two cumulative conditions are satisfied:
Drawing on the elements outlined in CRPNPAC and Vueling Airlines (paragraph 56 and 58 ), and the specificities of the premises intended to be used by Ryanair staff, located at Orio al Serio airport (such as the equipment, its use, access and the requirement to reside within one hour’s distance), the CJEU considered it to constitute a branch or permanent representation within the meaning of Article 14(2)(a)(i) of Regulation No 1408/71, in which the workers in question were employed during the periods concerned, with the result that, during the part of those periods when that regulation was in force, the workers in question were, in accordance with that provision, subject to Italian social security legislation. [Paras 58-59].
As regards Regulation No 883/2004, the Court recalled the principle that a person who normally pursues an activity as an employed person in two or more Member States is to be subject to the legislation of the Member State of residence if he or she pursues a substantial part of his or her activity in that Member State. [Para. 63].
Consequently, the Court found that if, during the periods concerned, the Ryanair employees assigned to Orio al Serio airport not covered by E101 certificates pursued a substantial part of their activity in Italy, which it is for the referring court to verify, Italian social security legislation applies. [Para. 65].
Finally, the Court recalled that, since 2012, Regulation No 883/2004 has laid down a new rule under which the activity of a member of the flight crew or cabin crew performing air passenger services is to be deemed to be an activity pursued in the Member State where the home base is located, which is the location nominated by the operator to the crew member from where the crew member normally starts and ends a duty period or a series of duty periods and where, under normal conditions, the operator is not responsible for the accommodation of the crew member concerned. [Paras 69-71].
Therefore, the Court considers that the premises intended to be used by the Ryanair staff located at Orio al Serio airport constitutes a home base with the result that the Ryanair employees not covered by the E101 certificates who are assigned there are, in accordance with Regulation No 883/2004, subject to Italian social security legislation. [Para. 73].
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