Overview of recent cases before the Court of Justice of the European Union (August-December 2025)

Abstract

This case law report (August-December 2025) discusses six judgments of the Court of Justice. The two first judgments concern issues relating to reimbursement for cross-border healthcare. In C-489/23 AF v Guvernul României and Others, the Court clarified whether a Member State can make the reimbursement of the costs of cross-border healthcare conditional upon possessing a medical assessment from a professional of the public healthcare system of that State. C-115/24 UJ v Österreichische Zahnärztekammer deals with the topical issue of cross-border telemedicine. The case law report then turns to the Joined Cases C-296/24 to C-307/24 Jouxy, dealing with the never-ending family benefits saga in Luxembourg and the question of how to account for different forms of families. Continuing with the topic of families, the report discusses C-397/23 FL v Jobcenter Arbeitplus Bielefeld, where the Court seems to have created a new type of residence under Article 24 of Directive 2004/38 for parents of EU children, with associated consequences for claims on social assistance. The case law report ends with two more technical social security judgments, both concerning the questions of whether and where a person pursues a ‘substantial part’ of their working activities in order to determine the applicable legislation. While C-743/23 GKV-Spitzenverband relates to the question of whether activities carried out in third countries can be excluded from that assessment, C-203/24 Hakamp concerns the discretion awarded by the Member States to take into account different criteria.

National legislation limiting reimbursement of costs of cross-border healthcare through mandatory medical assessment in the competent Member State: C-489/23 AF v Guvernul României and Others ¹

In AF v Guvernul României and Others, the Court of Justice clarified the extent to which national legislation limiting the right to reimbursement of the costs of cross-border healthcare – particularly by making such reimbursement conditional on a medical assessment and a statement by a healthcare professional providing services within the public healthcare system of the competent Member State – is permissible in light of Article 56 TFEU on the freedom to provide services and EU legal framework on cross-border healthcare (Directive 2011/24 and Regulation 883/2004).

AF, who resided and was insured in Romania, was diagnosed with prostate adenocarcinoma at a private medical establishment. The recommended treatment was surgery. As surgery assisted by a surgical robot was not yet available in public hospitals in Romania, AF decided to undergo the procedure in Germany. He applied for prior authorisation (form E-112, now form S2) under Regulation 1408/71 (now Regulation 883/2004). The competent authority, namely, the Health Insurance Fund, allegedly did not register the request. AF was then offered the opportunity to undergo surgery in Germany sooner than expected, due to a cancellation. After making a payment to book the date of the surgery, he reapplied to the Health Insurance Fund for prior authorisation, which was refused on the ground that AF had failed to attach a copy of the ‘request for hospitalisation’ completed by a healthcare professional providing services under the Romanian public health insurance system, as required by Romanian law. Following a complaint and the dismissal of his action by the Court of Appeal, the case was brought before the High Court of Cassation and Justice of Romania (Înalta Curte de Casație și Justiție), which referred questions to the Court of Justice of the European Union for a preliminary ruling. In essence, the referring court asked whether, in light of Article 56 TFEU and Article 7(7) of Directive 2011/24, the Romanian legislation was compatible with EU law insofar as it made reimbursement of cross-border healthcare costs conditional on medical assessment by a healthcare professional providing services under the public health system. The second question concerned whether a national rule that, in the absence of prior authorisation, significantly limits the amount that can be reimbursed for cross-border healthcare, is consistent with EU law, in particular with Article 56 TFEU and Articles 20(1) and 20(2) of Regulation 883/2004.

Starting with the first question, the Court found that the text, context and purpose of Article 7(7) of Directive 2011/24 reveals that the Member State of affiliation may require a person seeking reimbursement to comply with the same conditions, eligibility criteria and regulatory and administrative formalities that would apply if the healthcare were provided on their own territory, insofar as this is necessary to determine the individual patient's entitlement to healthcare (paras. 32–42). This may, in particular, include a medical assessment carried out by a healthcare professional in that Member State. After all, in light of the limits of EU competences on healthcare, Directive 2011/24 neither harmonises healthcare or health insurance systems, nor requires national health systems to be organised in a particular manner (para. 37). Despite the broad discretion left to Member States, Article 7(7) of Directive 2011/24 still sets out some limits and states, in particular, that national conditions, eligibility criteria, and administrative formalities must not be discriminatory or constitute an unjustified obstacle to the freedom to provide services guaranteed by Article 56 TFEU (para. 43). It is settled case law that a national measure, although not directly preventing persons affiliated with the public health insurance system from getting treatment in another Member State, can still produce a deterrent effect in respect of the use of cross-border healthcare services. ² As a matter of fact, the Romanian legislation requiring the medical assessment for the treatment to be completed by a healthcare professional providing health services under the Romanian public healthcare system had already been scrutinised in C-538/19 Casa Naţională de Asigurări de Sănătate. ³ The issue in that case was different, since a medical assessment had been completed by a Romanian health professional providing services under the public healthcare system, but that assessment provided for a different type of treatment than the treatment recommended by a health professional in Austria, where the patient underwent treatment. ⁴ Yet, the Court rendered the same conclusion regarding the deterrent effect of the measure. In C-489/23 AF v Guvernul României and Others, the Court noted that since a medical assessment is normally carried out by a healthcare professional operating in the Member State in which the treatment is provided, the Romanian legislation imposed a condition capable of having a deterrent effect on the use of cross-border healthcare services (para. 47). The novel character of C-489/23 AF v Guvernul României and Others compared to previous case law lies in the assessment of the justifications which, here, took place in the context of Directive 2011/24. ⁵ The Court recalled that Article 7(7) of Directive 2011/24 provides that obstacles may be permissible only if they are objectively justified by overriding reasons in the public interest, such as planning requirements aimed at ensuring sufficient and permanent access to a balanced range of high-quality healthcare in the Member State concerned, or the need to control costs and to avoid, as far as possible, any waste of financial, technical and human resources (para. 43). The Court rejected the argument put forward by the Health Insurance Fund on the need to control costs and to avoid wasting financial resources (paras. 51 and 53). The Court considered that Article 7(4) of Directive 2011/24 already limits the financial impact on Member States by limiting reimbursement at the level of the tariffs applicable in the Member State of affiliation (para. 52). Moreover, the Court held that the national condition did not satisfy the proportionality requirement, since less restrictive measures could have been adopted by the Romanian legislature, such as the implementation of a procedure allowing the acceptance of equivalent medical certificates or reports (para. 54). Accordingly, the Court concluded that the national condition constituted an obstacle to the freedom to provide services and could not be justified under Article 7(7) of Directive 2011/24, read in light of Article 56 TFEU (para. 55).

Regarding the second question, the Court considered whether Articles 20(1) and (2) of Regulation 883/2004, read in light of Article 56 TFEU, preclude national legislation under which, if an insured person has not obtained the required prior authorisation for treatment in another Member State, the reimbursement of those costs is significantly limited. First, the Court clarified that, although the situation may fall within the scope of both Directive 2011/24 and Regulation 883/2004 subject to verification by the national court, both instruments cannot be combined for the same healthcare provision and that the insured person will have to make a choice between the two. When the patient is entitled to reimbursement under both instruments, the Regulation, which offers more favourable reimbursement terms for the patient, should be applied (paras. 59–62). Second, pursuant to Article 20(1) and (2) of Regulation 883/2004, a person seeking treatment in another Member State must obtain prior authorisation from the competent institution (paras. 66–68). Even if the person fails to obtain prior authorisation, Article 20 of Regulation 883/2004, interpreted in light of Article 56 TFEU, allows for two scenarios in which the insured person is still entitled to equivalent amounts of reimbursement (paras. 69–70). The first scenario occurs when the refusal for prior authorisation is deemed to have been unjustified (para. 71). In the second scenario, the insured person is entitled to reimbursement when, due to the urgent need to receive urgent treatment, he or she was either prevented from seeking prior authorisation or was unable to wait for the decision on the prior authorisation from the relevant institution (para. 72).

Finally, when the insured person travels to another Member State to receive treatment when a prior authorisation has been refused on well-founded grounds, the insured person may still claim reimbursement on the basis of Article 56 TFEU, but only within the limits of the cover provided by the health insurance scheme of the Member State of affiliation (para. 73). Hence, the Court confirmed that nothing precludes a Member State from fixing the amounts of the reimbursement which patients who have received care in another Member State without prior authorisation can claim, provided that those amounts are based on objective, non-discriminatory and transparent criteria, with it being for the referring court to verify that those conditions are met (para. 74).

This judgment is noteworthy for two reasons. Firstly, it perfectly illustrates the interaction between Directive 2011/24, Regulation 883/2004 and Article 56 TFEU in situations concerning the reimbursement of the costs of cross-border healthcare. Secondly, the case highlights the tension between the EU's limited competences and the Member States’ freedom to organise their national health insurance systems, examining the extent to which EU law allows national rules that (in)directly discourage cross-border healthcare mobility. In its thorough analysis, the Court is very mindful of these two aspects. The end result is a balanced one: while the requirement for a medical assessment to be completed by a professional belonging to a public healthcare institution of the Member State of affiliation is disproportionate for the purpose of the prior authorisation system, the limitations on reimbursement might be permitted depending on the assessment of the factual situation by the referring court. In that way, the Court ensures that freedom to receive services is preserved, while acknowledging the possibilities for Member States to limit reimbursement in the absence of prior authorisation.

Definition of the concept of cross-border telemedicine: C-115/24 UJ v Österreichische Zahnärztekammer ⁶

The judgment in UJ v Österreichische Zahnärztekammer addresses complex legal questions relating to the provision of cross-border healthcare through telemedicine services and the determination of the applicable legislation.

In this case, UJ, a dentist established in Austria, collaborated with a dental clinic in Germany. Patients began with an in-person consultation with UJ in Austria, during which images were taken, and an initial medical assessment was conducted. These images, along with recommendations were then sent to the German clinic, which oversaw the dental aligner treatment (known as DrSmile) remotely. The Austrian Dental Chamber, representing the interests of Austrian dentists and dental practitioners under Austrian law, brought action before the courts in Austria with the aim of prohibiting UJ from participating in activities in the field of dentistry carried out in Austria by foreign companies lacking the authorisations required under Austrian law to provide such services. After several appeals, the Supreme Court of Austria (Oberster Gerichtshof), referred several questions to the Court of Justice of the European Union. First, the referring court sought clarification on the definition of cross-border healthcare in the context of telemedicine. Specifically, it asked whether, under Article 3(d) and 3(e) of Directive 2011/24, the concept applies solely to healthcare provided with the support of information and communications technology (ICT), remotely from a different Member State, or if the definition also covers healthcare that combines remote and in-person treatment. If the latter is the case, the referring court asked whether the healthcare provided remotely must predominate for it to be classified as cross-border telemedicine, and if so, what criteria should be used to assess this distinction.

In answering this question, the Court first referred to the definitions of cross-border healthcare under Directive 2011/24, which covers healthcare provided or prescribed in a Member State other than the Member State where the patient is insured (‘Member State of affiliation’) (para. 61). The Court noted that the Directive does not define the term ‘telemedicine’, nor does it reference the law of the Member States regarding such a definition, concluding that the term constitutes an autonomous concept of EU law (para. 62). In defining telemedicine, the Court considered the literal, contextual and teleological interpretation, relevant case law, and EU legislation on information society services. The Court noted that literally, telemedicine refers to medical services supplied at a distance (para. 63). Contextually, telemedicine represents an exception to the general rule that the Member State of treatment is the country where the healthcare is physically provided. Under telemedicine, healthcare is deemed to be provided and subject to the legislation in the Member State where the provider is established (para. 64). The Court emphasised that healthcare itself is broadly defined under Article 3(a) of Directive 2011/24 to include a wide range of health services, even if they share the same therapeutic purpose. Some of these services may be provided or prescribed in a Member State other than the Member State of affiliation (para. 68). Accordingly, even when telemedicine forms only one part of broader, more complex medical treatment, it can qualify as cross-border healthcare under its own applicable legislation, even if the remainder of the treatment is provided physically in the same Member State and governed by different national rules (para. 69).

The Court then clarified the distinction between healthcare services provided with physical presence and those delivered remotely via ICT. EU legislation on information society services, namely, Directives 2000/31 and 2015/1535, confirm that healthcare provided where the provider and patient are physically present together does not constitute telemedicine, even if ICT is used. By contrast, services delivered via ICT at a distance, without a simultaneous physical presence, qualify as telemedicine, even when they are part of a broader treatment that also includes in-person care (paras. 71–74). The Court further clarified that in a complex treatment, each service, which together with others forms the treatment, as in this case, is viewed as independent rather than as part of a single integrated service (paras. 76–79). Building on this distinction, the Court considered how these principles align with the objectives of Directive 2011/24, namely, to facilitate access to high-quality cross-border healthcare while respecting Member States’ competences in organising and regulating their healthcare systems. In doing so, the Court found that it would be contrary to these objectives to apply the legislation of another Member State to healthcare requiring physical examination solely because the overall treatment includes telemedicine services provided from abroad. Such an approach would, according to the Court, undermine the authority of the Member State of treatment to regulate its healthcare system and would create legal uncertainty, as neither healthcare professionals nor patients would know definitively which national rules applied (paras. 84–86). In light of these considerations, the Court concluded that the defining factor of the concept of cross-border telemedicine service is that it is provided via ICT to a patient by a healthcare provider established in a Member State other than the patient's Member State of affiliation, at a distance, and without the provider and patient being physically present in the same location. Any health service delivered with the provider and patient physically together does not fall within the concept of telemedicine, even if it is part of a complex treatment that also includes other, separate services with the same therapeutic aim. In this context, it is irrelevant for legal classification whether one service is predominant; each service must be assessed individually to determine the applicable national legislation under Article 3(d) of Directive 2011/24 (paras. 90–93).

Secondly, the Court addressed the question of whether Article 3(d) of Directive 2011/24 applies generally to cross-border healthcare or only to the reimbursement of costs, and whether it should be interpreted to mean that telemedicine services must be provided in accordance with the legislation of the Member State where the healthcare provider is established (para. 94). Recalling again the objectives of Directive 2011/24, the Court clarified that the Directive is not limited to laying down rules on the reimbursement of the costs of cross-border healthcare, but also covers other aspects such as safety, quality standards, patients’ rights, and cross-border cooperation (paras. 95–98). The Court reiterated its earlier conclusion that cross-border healthcare provided via telemedicine must comply with the legislation of the Member State where it is established, including its standards and guidelines on quality and safety. This contrasts with in-person treatments, which fall under the legislation of the Member State where the treatment is provided (paras. 100–102).

The referring court also asked about the application of Directive 2005/36 on the recognition of professional qualifications, specifically in cases of virtual cross-border mobility of healthcare professionals. As with its other conclusions, the Court observed that Directive 2005/36 does not apply when a provider delivers cross-border telemedicine from their home state without physically moving to another Member State. For example, the German dental clinic at issue in this case was not considered a healthcare provider in Austria for this purpose (paras. 108–121).

The case of UJ v Österreichische Zahnärztekammer can be regarded as a landmark judgment for the definition and criteria it has established in respect of cross-border telemedicine, the first time such a definition has been provided under EU law. It also provides much-needed clarity on the complex legal question of which legislation applies to healthcare providers and patients involved in this type of treatment – which is a rapidly growing area as the healthcare market increasingly shifts away from traditional forms of care.

The concept of providing for the upkeep of a child in the context of modern forms of families and equal treatment: joined cases C-296/24 to C-307/24 Jouxy ⁷

Jouxy is an important follow-up case to the Caisse pour l'avenir des enfants judgment ⁸ delivered in 2020. The facts in both cases are largely similar. The Luxembourg law on family allowances, which came into effect into 2016, stipulates that all children resident in Luxembourg are personally entitled to family benefits. By virtue of the same law, EU migrant workers who work in Luxembourg but reside in another Member State (i.e. frontier workers) are also entitled to these family benefits, but only for their own children.

In Caisse pour l'avenir des enfants, the Court ruled that frontier workers must be able to claim the Luxembourg family allowances under Regulations 883/2004 and 492/2011 ⁹ for their own children, and the children of their spouses/registered partners, which should be considered their family members. ¹⁰ Crucially, the children of the spouse/registered partner of a frontier worker are considered to be a member of the family of the frontier worker only if the latter supports them/provides for their upkeep. ¹¹ Accordingly, it is essential that frontier workers ‘support’ the children of their spouses/registered partners to claim equal treatment rights for family benefits and social advantages, such as the Luxembourg family allowances, relying on Article 1(i) and 67 of Regulation 883/2004, read in conjunction with Article 7(2) of Regulation 492/2011 and with Article 2(2) of Directive 2004/38. ¹² In Jouxy, the referring court inquired about the factual circumstances in which a frontier worker who ‘supports’ a child is entitled to the Luxembourg family allowances (para. 26).

The concept of supporting a child has primarily been used in equal treatment cases for frontier workers in the area of student financial aid. ¹³ In Caisse pour l'avenir des enfants, the Court used it in the context of family benefits, relying on the Depesme case by analogy. ¹⁴ In Depesme, the Court held that the determination of whether a worker provides for the upkeep of a child is a factual assessment that must be construed broadly in light of the fundamental importance of free movement of workers. ¹⁵ Accordingly, in Depesme it was held that a child of a spouse or recognised partner who had no biological ties with the worker was considered to be dependent on the worker if they shared a household. ¹⁶

On this basis, the Court in Jouxy found that the fact that a frontier worker shares a household with the child of the spouse/registered partner is sufficient to demonstrate that the worker supports the child, and thus entitles the former to the family benefits in question (para. 37). The Court also clarified that there is no need for the child to be resident full-time with the worker, and he or she can spend time outside the joint household, for example, to pursue studies (para. 38). Moreover, the Court expressly noted that a child can spend time with a biological or adoptive parent outside the joint household without the dependency relationship with the frontier worker being affected (para. 38). This is particularly important for blended families, in which children typically spend time in more than one household.

The Court also clarified that the existence of maintenance contributions, visiting and accommodation rights of the biological or adoptive parent cannot be regarded as circumstances precluding the frontier worker from providing for the upkeep of the child (paras. 41–43). The presumption of the upkeep based on the existence of the joint household can be countered only in exceptional circumstances. The Court noted that these exceptional circumstances include cases of the frontier worker making false statements regarding the upkeep of the child or the costs for the upkeep of the child being borne entirely by another person (para. 44).

In conclusion, the Court concluded that the requirement of ‘support’ in the context of Article 45 TFEU, Article 1(i) and Article 67 of Regulation 883/2004, read in conjunction with Article 7(2) of Regulation 492/2011 and Article 2(2) of Directive 2004/38, is satisfied when the frontier worker and the child of the worker's spouse/registered partner are part of the same family unit, which is characterised by the existence of a joint household (para. 45).

Right of residence for the purpose of parental responsibility and access to social assistance: C-397/23 FL v Jobcenter Arbeitplus Bielefeld

Although this case dealt with the question of the right of residence, it arose in the context of seeking social assistance. The way the Court arrived at its conclusion on the right of residence is not only interesting for that right itself, but also has direct consequences for the right to social assistance. It is in that context that we decided to report on this case, which might have escaped the attention of some of our readers.

FL is a Polish national who entered Germany on 30 May 2020 to join his partner, also a Polish national, who is a permanent resident in Germany. The couple have a child, Polish national, who was born on 27 November 2020 in Germany. FL, his partner and the child applied to the Jobcenter Bielefeld seeking basic social welfare benefits under the SGB II. While the partner and the child were awarded the benefits, FL’s application was rejected on the ground that he did not possess a right of residence in Germany, since that right was conditional upon him seeking employment. Additionally, the Jobcenter Bielefeld considered that FL could not derive a right of residence as a family member of his partner nor as a parent of his child. In particular, under German law, ¹⁷ the possibility exists to grant a residence permit for the purpose of exercising parental responsibility. However, in FL’s case, one condition was not fulfilled, namely, that the child must be of German nationality. FL challenged the Jobcenter Bielefeld's decision in front of the Sozialgericht Detmold (Social Court, Detmold, Germany), the referring court. It is in that context that the referring court asked the Court of Justice, in very general terms, whether EU law should be interpreted as precluding the German legislation restricting the granting of residence permits for the purpose of exercising parental responsibility to the parents of German children.

The Court limited its focus to the assessment of the question referred, even though the European Commission had pointed out that perhaps there were other ways under EU law for FL to claim a right of residence through Article 3(2)(b) of Directive 2004/38 or under Article 14(4)(b) of Directive 2004/38 (paras. 24–27). The main reason for that limitation in assessment was not necessarily guided by a deferential attitude towards the referring court, but by the realisation that the grant of a residence permit for the purpose of exercising parental responsibility under German law would entitle FL to social benefits, whereas other types of permits granted under EU law would not (para. 28).

The Court then examined the question referred through the lens of the principle of non-discrimination on the basis of nationality. The Court pointed out that, according to the information sent by the referring court, under German legislation, a residence permit for the purposes of exercising parental authority may be granted to a national of another Member State only if that authority is exercised in respect of a single minor child who is habitually resident in Germany and who has German nationality (para.33). As the child in this case was an EU citizen (Polish national) who was residing in a Member State other than that of his nationality, that child may rely on the prohibition of non-discrimination on the basis of nationality contained in Article 18 TFEU (paras. 35–36). However, according to settled case law of the Court, Article 18 TFEU should be relied upon independently only if there are no more specific provisions on non-discrimination (para. 37). In this case, the prohibition of non-discrimination was given expression under Article 24 of Directive 2004/38, an instrument that applied to the situation of the child in the case at hand (paras. 38–39). The Court then found that the German legislation gave rise to direct discrimination, which is prohibited under Article 24(1) of Directive 2004/38 (para. 46). The Court considered that this type of discrimination could not be justified, since the situations covered by the German legislation did not fit with the derogations provided for under Article 24(2) of Directive 2004/38 (para. 51).

The Court concluded its judgment by looking at the consequences resulting from the grant of a residence permit based on German law, including the entitlement to social benefits (para. 52). The Court emphasised that the derogations provided for in Article 24(2) of Directive 2004/38 for the purpose of denying a claim to social assistance are either that the person has a right of residence in the host Member State for a maximum period of three months pursuant to Article 6(1) of that Directive, or that the person resides for the purposes of seeking employment pursuant to Article 14(4)(b) (para.56). It noted that those derogations do not apply ‘where the child of the person concerned has a right of residence under Directive 2004/38 other than those referred to in the preceding paragraph.’ (para.57).

The ability of an EU citizen to claim a derived right of residence on the basis of equal treatment is not new. In Reed, a case concerning an EU citizen who was a worker, the Court already allowed for that possibility on the basis of Article 7(2) of Regulation 1612/68. ¹⁸ In this case the Court confirmed that this possibility still exists, albeit under Article 24 of Directive 2004/38, and not in relation to a worker but a child who is an EU citizen. The most remarkable part of this judgment is the point made by the Court in paragraph 57, in an obiter dictum fashion, noting that the Member State cannot deny access to social assistance in such a scenario. As pointed out by the European Commission, there may have been other ways for this family member to be able to reside in Germany on the basis of EU law. Yet, it was the only way that would also have entitled the family member to social assistance. In a similar way to Jobcenter Krefeld, ¹⁹ the Court here protected, first and foremost, the right of residence of the EU child citizen in the host Member State.

The assessment of activities as an employed person in third counties in the context of the multi-activity rule of Regulation 883/2004: Case C-743/23 GKV-Spitzenverband ²⁰

The case of GKV-Spitzenverband concerns the determination of applicable legislation in cases in which a person performs employed activities in two Member States ²¹ and a third country. ²² The applicant was resident in Germany and employed by a company registered in Switzerland, spending 10.5 days per quarter in each country and the remainder of his working time in third countries (para. 17). The dispute arose in the context of the determination of the applicable legislation by the German authorities, which held that only activities pursued in Member States (excluding those pursued in third countries) should be considered in determining the percentage of the applicant's working time spent in Germany. This resulted in the applicant being subject to German social security legislation, as Article 13(1)(a) of Regulation 883/2004 stipulates that persons who pursue activities as employed persons in two Member States should be subject to the legislation of the Member State of residence if their employment in this Member State is a ‘substantial part’ of their total working activities. According to Article 14(8) of Regulation 987/2009, a substantial part of a person's employed activities is defined as a share of at least 25% of their total working time (and/or remuneration).

The applicant disagreed with the method of calculation of the German authorities (para. 22). He contended that all periods of activity must be considered, not just those completed in Member States. This method of calculation would have resulted in him spending less than 25% of his working time in Germany. As a result, he would be subject to the Swiss social security legislation, as Article 13(1)(b)(ii) of Regulation 883/2004 stipulates that persons who pursue employed activities in two Member States, but do not pursue a substantial part of their activities in the Member State of residence, are subject to the legislation of the registered office or place of business where the employer is situated.

The Court sided with the applicant's method of assessment of working activities. It highlighted with recourse to the different linguistic versions of Article 13(1)(a) of Regulation 883/2004 and Article 14(8) of Regulation 987/2009 that the various linguistic versions support an assessment in globo, taking into account all the activities pursued, not just those pursued in Member States (paras. 44–46). The Court also pointed to the objective of these provisions, which is to take into account the actual situation of the applicant (para. 49). By refusing to consider activities pursued in third countries, the result would no longer correspond to the actual situation of a person, but would create a legal fiction (para. 49). This finding is entirely justified, since the conflict rules of Regulation 883/2004 are designed to ensure that persons are subject to the legislation of the Member State that ‘they are in fact most closely connected with’. ²³ The Court therefore re-iterated the finding that the conflict rules designate the applicable legislation solely on the basis of objective factors (para. 51). ²⁴

Notably, the Court noted that the principle of exclusivity of applicable legislation is not compromised by taking into account employed activities pursued in third countries (para. 53). The Court clearly demonstrated that under no circumstances can a person who pursues activities as an employed person in two Member States, and a substantial part of employed activities in a third country, not be covered by the social security legislation of a Member State. ²⁵ Specifically, the person will be subject to the social security legislation of the Member State in which the employer is established (para. 54). Even in the case that the employer is not established in a Member State, the person will be subject to the legislation of the Member State of residence, regardless of the fact that no substantial employed activity is pursued in this Member State, because of Article 14(11) of Regulation 987/2009 (para. 54).

In conclusion, the Court refused to artificially exclude activities pursued in third countries with recourse to the wording and objective of the applicable provisions. ²⁶ At the same time, the Court rightly pointed out that employed persons remain covered by legislation of a Member State.

The (lack of) discretion of Member States to use different criteria to determine the substantial parts of the activities in the context of the multi-activity rule: Case C-203/24 Hakamp ²⁷

The question of how to assess the substantial parts of the working activities was also at the heart of C- 203/24 Hakamp, which was decided few months before C-743/23 GKV-Spitzenverband. ²⁸

In 2016, KN was residing in the Netherlands, where he worked as a boatman. KN worked on board a vessel in Belgium, Germany and the Netherlands. According to the logbook of the vessel, the vessel sailed in the Netherlands for approximately 22% of its total sailing time in 2016. The employer of KN was established in Liechtenstein, but the vessel was registered in the Netherlands and was owned and operated by a shipping company registered and established in the Netherlands. The SVB issued a decision stating that Netherlands legislation was the legislation applicable, considering that KN had pursued substantial part of his activities in the Netherlands. Indeed, under Article 13(1)(a) of Regulation 883/2004, a person who pursues an activity as an employed person in two Member States should be subject to the legislation of the Member State of residence if his or her employment in this Member State represents a ‘substantial part’ of the activities pursued. Article 14(8) of Regulation 987/2009 lists two criteria to be taken into account in determining whether a ‘substantial part’ of the activities is pursued in a Member State: the time worked and/or the remuneration. However, the Dutch language version of Article 14(8) of Regulation 987/2009 contains the word ‘mede’ (translated as ‘also’ in English) in front of the two criteria. As a result, the SVB took several criteria into account: the sailing time of the vessel on which KN worked, and also the fact that KN resided in the Netherlands, that the vessel was registered there, and that the owner and operator of that vessel were established there. After several appeals, the case reached the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), the referring court. Noting the specificity of the Dutch language version of Article 14(8) of Regulation 987/2009, the referring court doubted how much weight other criteria may carry in order to consider whether a person pursues a substantial part of his or her activities in the Member State of residence.

The Court started by recognising that the Dutch version of Article 14(8) seems to suggest a non-exhaustive list of criteria, but pointed out that other language versions of Regulation 987/2009. including the French, the English or the German versions, do not contain the word ‘also’ (paras. 32–33). Where there is divergence between language versions of a provision of EU law, the Court does not favour one language over others, but instead interprets it by considering the purpose and the context of that provision (para. 34). In its interpretation, the Court considered the context of Article 14(8), which helps to assess cases dealing with the multi-activity rule contained in Article 13(1) and (2) of Regulation 883/2004 (paras.35–37). That multi-activity rule is a derogation from the general rule whereby a person is subject to the social security system of one single Member State (Article 11(1)) determined on the basis of where that person pursues an activity as an employed person (Article 11(3)(a)) (paras. 41–42). The Court highlighted that the text of Article 14(8) provides that if the threshold of 25% for the time worked and/or the remuneration is not met, then the activity cannot be considered as substantial (para. 50). The Court found that allowing more criteria to be taken into account would not only create uncertainty but also would disregard the derogating nature of Article 13(1), which has to be interpreted strictly (para.51). The Court addressed the fact that the Practical guide to Regulations 883/2004 and 987/2007 indicates that other criteria may also be taken into account by stating that the Practical guide, although useful, is not a legally binding instrument (para. 52). The Court hence concluded that 25% of the time worked and/or remuneration threshold cannot be offset by other criteria to determine whether a substantial part of the activity is pursued in the Member State of residence under Article 14(8) of Regulation 987/2009 (para. 53). The Court went as far as to give an indication as to what it would concretely be in this specific case. In paragraph 54, the Court indicated that this specific worker has pursued 22% of his activity as an employed person in the Member State of residence, which was below the 25% threshold. The Court continued, in the same paragraph, by concluding that Article 13(1)(b) rather than Article 13(1)(a) was applicable in this situation, meaning that the worker should be subject to the legislation of the Member State in which the registered office or place of business of the undertaking or employer is situated. Furthermore, the Court clarified that the starting point for calculating the 25% is when the worker begins to pursue the activity in two or more Member States pursuant to Article 14(1) of Regulation 987/2009 (para. 60).

Although very technical and specific to the factual situation at hand, this judgment is interesting for two reasons. First, the factual assessment is supposed to be left to the national referring court. Yet, in the spirit of guiding the national referring court, the Court here was quite specific as to the desired outcome of the case. While it is not uncommon for the Court to act in such a way, it is still noteworthy, particularly in light of the contrast with the approach taken by the Court in the case on the reimbursement of the costs of cross-border healthcare (C-489/23) reported above. Second, the judgment is also interesting due to the relevance of different linguistic versions of a provision and the (lack) of relevance of practical guides to secondary legislation.