CJEU ruled on the social security legislation applicable to airline staff (Norme e Tributi Plus Diritto of Il Sole 24 Ore, 15 July 2022 – Vittorio De Luca, Marco Giangrande)

The Court of Justice of the European Union (hereafter: “Court of Justice”), in its 19 May 2022 ruling Case C-33/21, stated that personnel of an airline company established in a Member State, who works for at least 45 minutes per day in an establishment located in another Member State, which coincides with the country of residence, is subject to the social security legislation of the latter country.

Facts of the case and dispute

Following an inspection, INPS stated that the employees of an airline (hereafter: “airline”), based in a Member State and assigned to an Italian airport, were employed in Italy under Italian law and Art. 13 of Regulation no. 1408/71, and must be insured with INPS for the period between June 2006 and February 2010.

Under Italian law, INAIL stated that these employees had to be insured with INAIL, for the period from 25 January 2008 to 25 January 2013, for the risks connected with non-aviation work since they were employed at the company’s service base located at the Italian airport.

INPS and INAIL required the airline to pay social security contributions and insurance premiums for those periods (hereafter: “the periods”). This demand was challenged by the airline before the national courts.

The Court of First Instance and the Court of Appeal rejected the INPS and INAIL claims as unfounded, stating that the airline’s employees were subject, for these periods, to the legislation of the Member State where it was established.

The local Court mentioned the settled case-law of the Court of Justice, which stated that the E101 certificates are binding on national courts. When examining the E101 certificates produced by the airline, the Court concluded that there was no proof that these certificates covered all employees assigned to the Italian airport during those periods. The Court of Appeal deemed it necessary to define the social security legislation applicable, under Regulation no. 1408/71, involving employees, for whom the existence of an E101 certificate was not established.

The Court of Cassation, hearing the case, following an appeal brought by INPS and INAIL, recognised the binding nature of the E101 certificates produced by the airline company, and decided to suspend the proceedings and ask the Court of Justice, by reference for a preliminary ruling, which criteria must be used to define the social security legislation applicable to these employees, in relation to Regulations no. 1408/71 and no. 883/2004.

Continue reading the full version published in Norme & Tributi Plus Diritto of Il Sole 24 Ore.