Brussels, 13/12/2010 (Agence Europe) - The meaning of “civil servant” and “person to be treated as such” in relation to the social security scheme to be applied between a national pubic administration and a worker employed by that administration in another member state is to be determined “solely by reference to the national law of the member state to which the administration employing the person concerned is subject”. Thus, the worker in question “may be subject only to the legislation of the member state to which the administration employing that person is subject” even though that person “is subject partly to the social security scheme for civil servants and partly to the social security scheme for employed persons”.
With this ruling, delivered on 9 December in Case C-296/09, the Court of Justice of the EU answered two preliminary questions from the Belgian Appeal Court, which was hearing a case between the Flemish Community and Mr Baesen, a Belgian national, employed by the Flemish Community as an investment prospector in Sweden. Baesen was engaged under a contract for an indefinite period, but was subsequently fired. During the judicial proceedings which followed, Baesen sought compensation for social security contributions which he claimed were wrongly paid in Belgium. He took the view that he had been taken on as an “employed person”, not as a “civil servant or person to be treated as such”, and so was subject to the Swedish social security scheme under the general arrangements in Council Regulation EEC 1408/71 on the application of social security schemes to employed persons and their families moving within the Community. The Flemish Community was of the opinion that Baesen should be seen as a person to be treated as a civil servant and, as such, came under the terms of Article 13(2)(d) of the same regulation, which states that civil servants and persons treated as such are subject to the legislation of the member state to which the administration employing them is subject. The Belgian Appeal Court asked the Court of Justice of the EU to clarify the application of this Article, given that, under Belgian law, contractual public staff are subject partly to the general social security scheme for employed persons and partly to a specific scheme for civil servants.
Considering that, since “classification of a person as a 'civil servant' or a 'person to be treated as such' is a matter solely for the law of the member state to which the administration employing that person is subject and that it is for each member state to determine the extent of the social protection it wishes to grant those categories of persons”, the Court found that “a person in Mr Baesen's situation is not excluded from the scope of Article 12(2)(d) of Regulation No 1408/71”. (F.G./transl.rt)