In his Opinion delivered on 4 October in Eugen Bogatu v Minister for Social Protection (C‑322/17), Advocate General Mengozzi, analyses the scope of the concept of ‘activity as an employed person’, in the sense of Articles 67 and 68 Regulation (EC) No 883/2004 on the coordination of social security systems (i.e. entitlement to family benefits where members of the family are residing in another Member State, and priority rules in the event of overlapping benefits).

The case in the main proceedings

The case in the main proceedings concerns a Romanian national who after having been employed in Ireland and subsequently having lost his job, has received only non-contributory benefits (jobseeker’s allowance). whilst remaining insured under the social security scheme of the latter Member State. He was refused family benefits for his children residing in Romania, for the period during which he received the jobseeker’s allowance, on the ground that he could not be regarded as pursuing an activity as an employed person, for the purposes of Article 67 Regulation 883/2004.

Questions referred for a preliminary ruling

The questions referred to the European Court of Justice, rephrased by the Advocate General, can be summarised to whether the Romanian national, is entitled to the payment of family benefits, by virtue of a broad interpretation of the concept of ‘activity as an employed person’, for the purposes of determining the Member State having primary responsibility for paying such benefits.

Opinion delivered by Advocate General Mengozzi

The Advocate General observes first that the interpretation of the concept of ‘activity as an employed person’, in the sense of Article 68 Regulation 883/2004, determines the response to the question referred for a preliminary ruling.

Advocate General Mengozzi, suggests that in accordance to the adage “‘lex specialis derogat legi generali’, where a situation is governed by one of the special rules governing connecting factors which are provided for in Title III Regulation 883/2004, the general conflict rules which are set out in Title II the said regulation, do not apply.

Having regard to the above consideration, referring to the different arguments brought by the parties, Advocate General Mengozzi, takes the view that Article 11(2) cannot be used to interpret the concept of ‘activity as an employed person’, for the purposes of Article 68 Regulation 883/2004 (pursuant to Article 11(2), “persons receiving cash benefits because or as a consequence of their activity as an employed … person shall be considered to be pursuing the said activity”).

Pursuing the analysis, the Advocate General, rules out a possible interpretation of the concept of ‘activity as an employed person’ on grounds of national laws governing entitlement to receive family benefits. In context, AG Mengozzi observes that on the one hand, the wording of Article 68(1) Regulation 883/2004 does not contain any reference to national legislations, and on the other hand, such an interpretation would result in a significant number of unfavourable situations for the migrants (i.e. situations in which pursuant to the last sentence of Article 68(2), the differential supplement is not payable).

Lastly, the Advocate General underlines the distinction must be made between the broad interpretation of the concept of ‘employed person’ under Regulation 1408/71 (the said regulation applied to employed and self-employed persons only), and the interpretation under Regulation 883/2004, applies to all nationals of a Member State.  In context, AG Mengozzi, observes that Article 68 Regulation 883/2004, provides for an order of priority, considering the contribution to the economic life of the Member State, notably, pursuit of an employment activity, then receipt of a pension and lastly, residence.

Advocate General Mengozzi takes the view that in order to preserve the practical effect of the order of priority provided for in Article 68 Regulation No 883/2004, to interpret the concept of ‘activity as an employed person’ for the purposes of the said article, reference must be made to the definition laid down in Article 1 Regulation 883/2004 (“activity as an employed person” means any activity or equivalent situation treated as such for the purposes of the social security legislation of the Member State in which such activity or equivalent situation exists”).

Having regard to the above considerations, only if the pursuit of such an activity, or the existence of an equivalent situation, can be established under the social security legislation of the Member State of employment, the latter Member State would be deemed to have primary responsibility for the payment of family benefits.