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OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 16 October 2014 (1)

Case C-266/13

L. Kik

v

Staatssecretaris van Financiën

(Request for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands))

(Social security for migrant workers — Regulation (EEC) No 1408/71 — Person employed on a pipe-laying vessel in international waters and on the continental shelf adjacent to two Member States — Compulsory insurance — Applicable national legislation)





1.        The Court is once again required to give a ruling on the rules for determining the applicable legislation contained in Regulation (EEC) No 1408/71. (2) On this occasion, the case is one which also raises again the issue of the legal nature of the continental shelf and the meaning and scope of the functional extension of the sovereignty of the Member States over that area. In any event, the real interest of the present case lies in the apparent difficulty in determining whether the provisions of that regulation cover a situation in which, in the parties’ opinion, only a solution based on analogy is possible. As I shall attempt to demonstrate, however, the regulation itself provides its own solution.

I –  Legislative framework

A –    International law

2.        The United Nations Convention on the Law of the Sea, signed in Montego Bay (Jamaica) on 10 December 1982, which entered into force on 16 November 1994, was ratified by the Kingdom of the Netherlands on 28 June 1996 and approved on behalf of the European Community by Council Decision 98/392/EC of 23 March 1998. (3)

3.        Article 60 of the convention, entitled ‘Artificial islands, installations and structures in the exclusive economic zone’, provides as follows:

‘1.      In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorise and regulate the construction, operation and use of:

(a)      artificial islands;

(b)      installations and structures for the purposes provided for in Article 56 and other economic purposes;

(c)      installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.

2.      The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.

…’

4.        Under the title ‘Rights of the coastal State over the continental shelf’, Article 77 of the convention provides as follows:

‘1.      The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.

2.      The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.

3.      The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

…’

5.        Article 79 of the convention, entitled ‘Submarine cables and pipelines on the continental shelf’, is worded as follows:

‘1.      All States are entitled to lay submarine cables and pipelines on the continental shelf, in accordance with the provisions of this Article.

2.      Subject to its right to take reasonable measures for the exploration of the continental shelf, the exploitation of its natural resources and the prevention, reduction and control of pollution from pipelines, the coastal State may not impede the laying or maintenance of such cables or pipelines.

3.      The delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State.

4.      Nothing in this Part affects the right of the coastal State to establish conditions for cables or pipelines entering its territory or territorial sea, or its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.

…’

6.        In accordance with Article 80 (‘Artificial islands, installations and structures on the continental shelf’), ‘Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf.’

B –    EU law

1.      Regulation No 1408/71

7.        The following recitals in the preamble to Regulation No 1408/71 are of interest for the purposes of the case:

‘Whereas the provisions for coordination of national social security legislations fall within the framework of freedom of movement for workers who are nationals of Member States and should contribute towards the improvement of their standard of living and conditions of employment;

…

Whereas the considerable differences existing between national legislations as regards the persons to whom they apply make it preferable to establish the principle that the Regulation applies to all persons insured under social security schemes for employed persons and for self-employed persons or by virtue of pursuing employment or self-employment;

Whereas it is necessary to respect the special characteristics of national social security legislations and to draw up only a system of coordination;

…

Whereas employed persons and self-employed persons moving within the Community should be subject to the social security scheme of only one single Member State in order to avoid overlapping of national legislations applicable and the complications which could result therefrom;

…

Whereas with a view to guaranteeing the equality of treatment of all workers occupied on the territory of a Member State as effectively as possible, it is appropriate to determine as the legislation applicable, as a general rule, that of the Member State in which the person concerned pursues employment [or] self-employment;

Whereas in certain situations which justify other criteria of applicability, it is possible to derogate from this general rule;

…’

8.        Article 1 of Regulation No 1408/71, entitled ‘Definitions’, provides as follows:

‘For the purpose of this Regulation:

(a)      employed person and self-employed person mean respectively:

(i)      any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons or by a special scheme for civil servants;

…’

9.        Under the title ‘Persons covered’, Article 2 of Regulation No 1408/71 provides, in paragraph 1:

‘This Regulation shall apply to employed or self-employed persons and to students who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.’

10.      Title II of the regulation, which has the heading ‘Determination of the legislation applicable’, opens with Article 13 (‘General rules’), which provides:

‘1.      Subject to Articles 14c and 14f, persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

2.      Subject to Articles 14 to 17:

(a)      a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;

…

(c)      a person employed on board a vessel flying the flag of a Member State shall be subject to the legislation of the State;

…

(f)      a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.’

11.      Article 14 of Regulation No 1408/71 (entitled ‘Special rules applicable to persons, other than mariners, engaged in paid employment’) provides as follows:

‘Article 13(2)(a) shall apply subject to the following exceptions and circumstances:

…

(2)      A person normally employed in the territory of two or more Member States shall be subject to the legislation determined as follows:

(a)      A person who is a member of the travelling or flying personnel of an undertaking which, for hire or reward or on its own account, operates international transport services for passengers or goods by rail, road, air or inland waterway and has its registered office or place of business in the territory of a Member State shall be subject to the legislation of the latter State, with the following restrictions:

(i)      where the said undertaking has a branch or permanent representation in the territory of a Member State other than that in which it has its registered office or place of business, a person employed by such branch or permanent representation shall be subject to the legislation of the Member State in whose territory such branch or permanent representation is situated;

(ii)      where a person is employed principally in the territory of the Member State in which he resides, he shall be subject to the legislation of that State, even if the undertaking which employs him has no registered office or place of business or branch or permanent representation in that territory.

(b)      A person other than that referred to in (a) shall be subject:

(i)      to the legislation of the Member State in whose territory he resides, if he pursues his activity partly in that territory or if he is attached to several undertakings or several employers who have their registered office or place of business in the territory of different Member States;

(ii)      to the legislation of the Member State in whose territory is situated the registered office or place of business of the undertaking or individual employing him, if he does not reside in the territory of any of the Member States where he is pursuing his activity.

…’

12.      In accordance with Article 14b (‘Special rules applicable to mariners’):

‘Article 13(2)(c) shall apply subject to the following exceptions and circumstances:

…

(4)      A person employed on board a vessel flying the flag of a Member State and remunerated for such employment by an undertaking or a person whose registered office or place of business is in the territory of another Member State shall be subject to the legislation of the latter State if he is resident in the territory of that State; the undertaking or person paying the remuneration shall be considered as the employer for the purpose of the said legislation.’

13.      Article 15 of the regulation (‘Rules concerning voluntary insurance or optional continued insurance’) is worded as follows:

‘1.      Articles 13 to 14d shall not apply to voluntary insurance or to optional continued insurance unless, in respect of one of the branches referred to in Article 4, there exists in any Member State only a voluntary scheme of insurance.

2.      Where application of the legislations of two or more Member States entails overlapping of insurance:

–        under a compulsory insurance scheme and one or more voluntary or optional continued insurance schemes, the person concerned shall be subject exclusively to the compulsory insurance scheme;

…’

C –    Agreement with the Swiss Confederation (4)

14.      According to Article 8 of the EC-Switzerland Agreement:

‘The Contracting Parties shall make provision, in accordance with Annex II, for the coordination of social security systems with the aim in particular of:

(a)      securing equality of treatment;

(b)      determining the legislation applicable;

(c)      aggregation, for the purpose of acquiring and retaining the right to benefits, and of calculating such benefits, all periods taken into consideration by the national legislation of the countries concerned;

(d)      paying benefits to persons residing in the territory of the Contracting Parties;

(e)      fostering mutual administrative assistance and cooperation between authorities and institutions.’

15.      Under Article 1 of Annex II to the EC-Switzerland Agreement:

‘1.      The contracting parties agree, with regard to the coordination of social security schemes, to apply among themselves the Community acts to which reference is made, as in force at the date of signature of the Agreement and as amended by section A of this Annex, or rules equivalent to such acts.

2.      The term “Member State(s)” contained in the acts referred to in section A of this Annex shall be understood to include Switzerland in addition to the States covered by the relevant Community acts.’

16.      Section A of Annex II refers to Regulation No 1408/71, which was replaced by Regulation (EC) No 883/2004, (5) applicable from 1 May 2010. Annex II to the EC-Switzerland Agreement was updated by Decision No 1/2012 of the Joint Committee established under that agreement, (6) with effect from 1 April 2012. The new version of Annex II refers to Regulation No 883/2004. Nevertheless, under Article 90(1) of Regulation No 883/2004 and Annex II, section A, point 3 of the EC-Switzerland Agreement, as amended, facts prior to 1 April 2012 are governed by Regulation No 1408/71.

D –    Netherlands law

17.      According to the order for reference, under the Netherlands legislation on social security the general rule is that residents of the Netherlands are compulsorily insured and liable to pay contributions in respect of the insurance provided for in that legislation. By way of exception, Article 12(1) of the Besluit uitbreiding en beperking kring verzekerden volksverzekeringen 1999 (Decree on the extension and restriction of the category of insured persons in respect of national insurance 1999) provides that a Netherlands resident is not insured for national insurance purposes if, during a continuous period of at least three months, he works exclusively outside the Netherlands, unless that work is performed by virtue of an employment relationship with an employer resident or established in the Netherlands.

18.      Under the Besluit verzekeringsplicht zeevarenden (Decree on compulsory insurance for seafarers), when a mariner who is resident in a Member State works for an employer established in the Netherlands on a vessel flying the flag of a third State which is not a State party to the Agreement on the European Economic Area, the Netherlands legislation on social security for employed persons is applicable.

II –  Facts

19.      The reference for a preliminary ruling derives from a dispute between the Netherlands social security institution and Mr Kik, a Netherlands national, resident in the Netherlands, who is employed by a Swiss undertaking on a pipe-laying vessel flying the Panamanian flag, and who, until 31 May 2004, worked on Netherlands territory (compulsorily insured under the Netherlands social security system) and, between 1 June and 24 August 2004, worked, in succession, on the continental shelf of the United States, in international waters, and on the Netherlands, United Kingdom and again the Netherlands parts of the continental shelf.

20.      The question at issue in the main proceedings is whether or not Mr Kik was required to pay Netherlands social security contributions during the period 1 June 2004 to 24 August 2004.

21.      The national courts held (at first instance and on appeal) that that question should be answered in the affirmative, as national law provides that Netherlands residents are insured compulsorily and must pay the applicable contributions.

22.      Mr Kik lodged an appeal in cassation with the Hoge Raad der Nederlanden (the Supreme Court of the Netherlands), the court which now seeks a preliminary ruling.

III –  The reference for a preliminary ruling

23.      The questions referred for a preliminary ruling on 15 May 2013 are worded as follows:

‘(1)      (a)   Must the rules regarding the scope ratione personae of Regulation (EEC) No 1408/71 and the rules which determine the territorial scope of the designation rules in Title II of that regulation be interpreted as meaning that those designation rules apply in a case such as the present, which concerns (a) a worker residing in the Netherlands who (b) is a national of the Netherlands, (c) in any event, was previously compulsorily insured in the Netherlands, (d) is employed as a seafarer by an employer established in Switzerland, (e) carries out his work on board a pipe-laying vessel which flies the Panamanian flag, and (f) carries out those activities first outside the territory of the European Union (approximately 3 weeks above the continental shelf of the United States and approximately 2 weeks in international waters) and then above the continental shelf of the Netherlands (periods of one month and approximately one week) and of the United Kingdom (a period of slightly more than one week), while (g) the income earned thereby is subject to income tax levied by the Netherlands?

(b)      If so, is Regulation (EEC) No 1408/71 then applicable only on the days when the person concerned works above the continental shelf of a Member State of the European Union, or also during the preceding period in which he worked elsewhere outside the territory of the Union?

(2)      If Regulation (EEC) No 1408/71 applies to a worker as referred to in question 1(a), what legislation or sets of legislation does the Regulation then designate as applicable?’ (Operative part of the order for reference).

IV –  Procedure before the Court

24.      Written observations were submitted by Mr Kik, the Netherlands Government and the Commission. All those parties attended the hearing, held on 3 July 2014, at which they were invited by the Court to focus their submissions on the second question referred by the Hoge Raad.

V –  Submissions

A –    First question

25.      The parties all take the view that Regulation No 1408/71 is applicable to the facts of the case. In particular, the Netherlands Government submits that the regulation in question is applicable in respect of the whole period of time at issue.

B –    Second question

26.      Mr Kik and the Commission argue that, in the circumstances of the case and in accordance with the case-law laid down in Aldewereld, (7) competence lies with the employer’s State of establishment, that is, the Swiss Confederation.

27.      The Netherlands Government submits that, under Articles 13(2)(f) and 14(2)(b)(i) of Regulation No 1408/71, the competent State is the worker’s State of residence.

VI –  Assessment

28.      The Hoge Raad asks the Court whether, in the circumstances of the main proceedings, Regulation No 1408/71 is applicable and, if it is, to which national legislation the conflict rules in that regulation refer, since, in its opinion and in the opinion of the parties, those rules do not specifically provide for a situation like the one at issue.

29.      In order to approach the question correctly, it is necessary to establish exactly what the facts of the case before the Court are.

A –    Mr Kik’s work situation in the period to which the reference for a preliminary ruling refers

30.      Mr Kik is a Netherlands national and is resident in the Netherlands. Until 31 May 2004, he worked for an undertaking established in the Netherlands and was compulsorily insured in that Member State.

31.      From 1 June 2004 he was employed as a mariner by a Swiss undertaking and he worked on a vessel flying the Panamanian flag. There is no record of whether he was insured in Switzerland from that date but it is on record that, with effect from 25 August 2004, he ceased to be compulsorily insured in the Netherlands, since, in accordance with Netherlands law, the obligation to be insured in that country ceases once a person has worked continuously for at least three months outside the Netherlands for an employer who is not resident in the Netherlands. In addition, Mr Kik has paid tax in the Netherlands at all times.

32.      The period at issue runs from 1 June to 24 August 2004. During that period, Mr Kik worked for: (a) three weeks on the continental shelf of the United States; (b) two weeks in international waters; (c) one month and one week on the continental shelf of the Netherlands; and (d) one week on the continental shelf of the United Kingdom.

33.      That being so, of the total period of three months at issue, Mr Kik worked for one month and one week on the Netherlands continental shelf. He worked for one week on the United Kingdom continental shelf, meaning that, of the whole three months of interest for the present purposes, he worked for five weeks in territory completely outside the European Union (international waters and the continental shelf of a third country). In other words, for more than half the period at issue, Mr Kik worked on the continental shelf of a Member State. (8)

B –    First question

34.      The referring court asks, first, whether, in the circumstances of the case, Regulation No 1408/71 is applicable and, if it is, whether it must apply only to the days on which Mr Kik worked on the continental shelf of a Member State or also to the time when he worked outside the territory of the European Union.

35.      To my mind, and on this I agree with all the parties, the applicability of Regulation No 1408/71 is beyond doubt, since Article 2(1) thereof provides that the regulation ‘shall apply to employed … persons … who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States’. In the present case, Mr Kik was subject to the Netherlands general social security scheme until 25 August 2004, and uncertainty has arisen as to whether, from 1 June 2004, he should in fact have been subject to the legislation of another Member State or treated as such, which means that it is necessary to rely on the conflict rules in Article 13 of Regulation No 1408/71 to determine which national legislation is applicable.

36.      In my view, the question whether or not the work performed by Mr Kik on the continental shelf adjacent to the Netherlands and the United Kingdom must be considered to have been performed in the territory of the European Union does not raise any difficulty. In accordance with the case-law laid down by the Court in Salemink, (9) where work is carried out on the continental shelf adjacent to a Member State, that continental shelf forms part, functionally, of the sovereign territory of that Member State and, therefore, the application of EU law cannot be avoided. The Court held on that occasion that that was the case in relation to work carried out ‘on the continental shelf, in the context of the prospecting and/or exploitation of [its] natural resources’. (10) In the present case, Mr Kik worked on a pipe-laying vessel which operated above the continental shelf adjacent to the territory of the European Union, in other words, carrying out an activity which, in principle, could not be regarded as ‘prospecting and/or exploitation of the natural resources of the continental shelf’

37.      Admittedly, the continental shelf remains subject to a certain degree to the sovereignty of the adjacent State when submarine cables and pipelines are laid on it, since, in accordance with Article 79(3) of the Convention on the Law of the Sea, ‘[t]he delineation of the course for the laying of such pipelines on the continental shelf is subject to the consent of the coastal State’, while Article 79(4) provides for an exception for ‘the right of the coastal State to establish conditions for cables or pipelines entering its territory’ and ‘its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.’

38.      That faintest trace, so to speak, of sovereign power guaranteed by the Convention on the Law of the Sea might, on first consideration, be sufficient for a finding that, in this case too, the continental shelf is, functionally and to a limited extent, the territory of the European Union. However, in Salemink, it was held that there must be a link between the advantage ‘of the economic rights to prospect and/or exploit natural resources on that part of the continental shelf which is adjacent to [a Member State]’ and the prohibition on ‘avoid[ing] the application of the EU law provisions designed to ensure the freedom of movement of persons working on such installations.’ (11) Accordingly, it is clear that the ‘functional nature’ of the sovereignty of the coastal State over the continental shelf operates only when prospecting and/or exploitation is carried out on the latter for which the presence of workers is required, but not, however, when that shelf is merely an area above which an activity other than prospecting and/or exploitation is carried out, in respect of which the coastal State has only the right of consent and the pursuit of which does not require the presence of workers.

39.      The foregoing is, however, irrelevant for the purposes of the present case since I believe that Regulation No 1408/71 is applicable even if Mr Kik is considered to have worked at all times, during the period at issue, outside the territory of the European Union.

40.      In accordance with settled case-law, that factor is irrelevant if the employment relationship has a sufficiently close connection with the territory of a Member State. (12) The Court has held that, in the case of a worker who works on a vessel, the following amount to such a connection: the place where the worker was taken on, the law applicable to the employment contract, insurance under a social security scheme and the place where the tax on his salary is paid. (13) I believe that, in the case before the Court, there is a sufficiently close connection with the territory of the European Union because Mr Kik pays tax in the Netherlands and, according to the observations of the Netherlands Government, (14) receives his salary in either the Netherlands or Switzerland, from which it may be assumed — since Mr Kik has not adduced evidence enabling another conclusion to be reached — that the law applicable to the employment contract is the law of one of those States.

41.      Accordingly, as a first interim conclusion, I propose that the Court reply to the first question referred by the Hoge Raad to the effect that, in the circumstances of the case, Regulation No 1408/71 is applicable to the whole of the period at issue, namely from 1 June 2004 to 24 August 2004.

C –    Second question

42.      Having clarified that point, it is now necessary to determine, in the light of Regulation No 1408/71, what legislation is applicable to a worker in Mr Kik’s circumstances during the period at issue in the main proceedings.

43.      The difficulty in that question lies in the fact that Regulation No 1408/71 does not appear to include in its conflict rules any rule specifically applicable to a situation such as that in these proceedings. We must therefore establish whether that first impression is correct.

44.      Of the many cases referred to in Title II (‘Determination of the legislation applicable’; Articles 13 to 17a) of Regulation No 1408/71, only those set out in Article 13 (‘General rules’) and Article 14b (‘Special rules [applicable] to mariners’) are of interest. (15) It is my view that, of all those cases, the following do not reflect Mr Kik’s circumstances:

(a)      A person employed in the territory of one Member State (Article 13(2)(a)), a case in which the legislation of that Member State applies but which is not the case of Mr Kik, who, as we have seen, is not employed in the territory of any Member State, or, if for the present purposes the continental shelf adjacent to a Member State is considered to be the territory of the European Union, has not worked in the territory of a single Member State but rather in the territory of two Member States (the Netherlands and the United Kingdom).

(b)      A person who is self-employed in the territory of one Member State (Article 13(2)(b)), to whom the legislation of that State applies; that clearly does not reflect the position of Mr Kik, who is an employee.

(c)      A person employed on board a vessel flying the flag of a Member State (Article 13(2)(c)), a situation in which the legislation of that State is applicable but which does not reflect the case at issue either as Mr Kik works on a Panamanian vessel.

(d)      A civil servant or a person treated as such (Article 13(2)(d)).

(e)      A person called up for service in the armed forces, or for civilian service (Article 13(2)(e)).

(f)      A person employed by an undertaking to which he is normally attached, either in the territory of a Member State or on board a vessel flying the flag of a Member State, who is posted on board a vessel flying the flag of another Member State (Article 14b(1)), a case in which the legislation of the first Member State applies. Clearly, this is not the case of Mr Kik either, since there is no record that he is ‘normally attached’ to the Swiss employer; nor has he worked on the territory of the European Union, for the reasons already stated; and nor has he worked on a vessel flying the flag of a Member State.

(g)      A person normally self-employed, either in the territory of a Member State or on board a vessel flying the flag of a Member State (Article 14b(2)), none of which are circumstances arising in the present case.

(h)      A person who performs work in the territorial waters or in a port of a Member State (Article 14b(3)); Mr Kik has not worked in either place.

(i)      A person employed on board a vessel flying the flag of a Member State and remunerated for such employment by an undertaking or a person whose registered office or place of business is in the territory of another Member State (Article 14b(4)). The legislation of the latter Member State applies if the worker is resident in that Member State (this is not the case of Mr Kik, as he does not satisfy the first condition because he works on a Panamanian vessel).

45.      Since it is not possible to rely on the solutions provided for in the above cases, consideration might be given to whether it is appropriate to rely, by analogy, on Article 14 of the regulation. In fact, the Netherlands Government suggests the application by analogy of Article 14(2)(b), which refers to the case of a person normally employed in the territory of two or more Member States and who is not a member of the travelling or flying personnel of an undertaking which operates international transport services.

46.      The use of analogy would, of course, be a legitimate solution if the provisions which are directly applicable to mariners like Mr Kik did not enable determination of the legislation applicable to the case.

47.      However, one of the provisions of the regulation, to which the Netherlands Government has referred, renders unnecessary the effort of seeking a solution based on analogy. That provision is Article 13(2)(f) of Regulation No 1408/71, pursuant to which ‘a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs … shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.’ The application of that provision to the present case was raised at the hearing and, in my view, it reflects exactly the case of Mr Kik.

48.      On the evidence adduced, which no one has disputed, Mr Kik was subject to Netherlands legislation until 31 May 2004. From that date, Netherlands legislation ceased to apply to him in principle, since none of the rules laid down in Regulation No 1408/71, and examined above, lead to the application of Netherlands law. However, those rules do not necessarily establish that the law of another Member State is applicable either, because Mr Kik’s working conditions do not match any of the cases.

49.      Faced with a situation of this kind, that is, where the legislation hitherto applied is not applicable and where no other legislation is applicable — exactly the situation referred to in Article 13(2)(f) — Regulation No 1408/71 relies, in general, on the criterion of the worker’s place of residence in order to determine which legislation applies. In accordance with that criterion, Mr Kik, who is resident in the Netherlands, must be subject to the legislation of that Member State.

50.      Admittedly, the first part of the provision (‘a person to whom the legislation of a Member State ceases to be applicable…’) suggests intuitively that it is unlikely to lead to the application of legislation which has ceased to be applicable. In other words, since the Netherlands legislation ceased to be applicable to Mr Kik’s situation after 31 May 2004, it may be surprising that Regulation No 1408/71 should lead to the application of that same legislation, which ceased to be applicable pursuant to the regulation itself.

51.      However, while the legislation (the Netherlands legislation) which ceased to apply from 31 May 2004 and which, consequently, became applicable again pursuant to Regulation No 1408/71 is one and the same, the legal ground on the basis of which that legislation became inapplicable and then compulsorily applicable is different in each case.

52.      Netherlands law was applicable until 31 May 2004 because, until that date, Mr Kik worked for an undertaking with its registered office in the Netherlands, where he also resided, worked and paid tax. In accordance with Netherlands law, that law ceased to be applicable from the moment when Mr Kik had worked continuously for three months outside the Netherlands for an employer resident in Switzerland. In those circumstances, since he satisfied the condition of being a person ‘to whom the legislation of a Member State ceases to be applicable’, in accordance with Article 13(2)(f) of Regulation No 1408/71 (and ‘without the legislation of another Member State becoming applicable to him’), the decisive criterion for identifying the legislation to be applied to Mr Kik is, according to that same provision, the criterion of the worker’s place of residence. It so happens that, in the circumstances of the case, that criterion leads once again to Netherlands law, in other words, to the same law which, because it became inapplicable, made it necessary to find other applicable legislation. Although it is in substance the same law, the fact is that its application is based on a different legal ground in each case: Netherlands law ceased to apply when Mr Kik’s working conditions changed (on 31 May 2004) and it became applicable again when that was required according to the criterion for the identification of the applicable law laid down by Regulation No 1408/71, relating to the situation which Mr Kik was in after 31 May 2004. In one case, Netherlands law was applicable because Mr Kik resided and worked in the Netherlands for an undertaking established in that Member State and in the other case Netherlands law was applicable because, although it ceased to apply when those circumstances changed, it was the law of Mr Kik’s place of residence.

53.      In short, without needing to rely on the application by analogy of provisions of Regulation No 1408/71 which are not aimed at a situation such as that in the present case, I believe that the answer to the question concerning the law applicable to the case is answered directly and primarily by Article 13(2)(f).

54.      Accordingly, as a second interim conclusion, I propose that the Court reply to the second question to the effect that, in accordance with Article 13(2)(f) of Regulation No 1408/71, the legislation applicable to Mr Kik is that of the Netherlands, as it is the territory in which he resides.

VII –  Conclusion

55.      In the light of the foregoing considerations, I propose that the Court should answer the questions referred as follows:

(1)      In the circumstances of the case at issue in the main proceedings, Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, is applicable to the whole of the period at issue.

(2)      In accordance with Article 13(2)(f) of Regulation No 1408/71, the legislation applicable to a worker in the circumstances of the case at issue in the main proceedings is that of the Member State in whose territory that worker is resident.

1 – Original language: Spanish.

2 – Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1), in turn amended by Council Regulation (EC) No 1606/98 of 29 June 1998 (OJ 1998 L 209, p. 1) and by Council Regulation (EC) No 307/1999 of 8 February 1999 (OJ 1999 L 38, p. 1) (‘Regulation No 1408/71’).

3 – OJ 1998 L 179, p. 1.

4 – Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed in Luxembourg on 21 June 1999, approved on behalf of the European Community by Decision 2002/309/EC, Euratom of the Council, and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002 (OJ 2002 L 114, p. 1) (‘EC-Switzerland Agreement’).

5 – Regulation of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

6 – Decision of the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons of 31 March 2012 replacing Annex II to that Agreement on the coordination of social security schemes (OJ 2012 L 103, p. 51).

7 – Judgment of 29 June 1994 (C-60/93, EU:C:1994:271).

8 – From 25 August 2004 to 31 December 2004, Mr Kik did not work in the Netherlands and worked for only 18 days in the territory of a Member State. During that period, he worked (employed by the same Swiss employer) in the following areas: (a) from 25 August to 14 September: three days in international waters and 18 days on the Spanish continental shelf; (b) from 21 October to 17 November: seven days in international waters and 21 days in Australian territorial waters; (c) from 15 to 31 December: 17 days in Australian territorial waters.

9 – (C-347/10, EU:C:2012:17, paragraphs 35 to 37).

10 – Salemink (paragraph 35).

11 – Salemink (paragraph 36).

12 – In that connection, see, for example, judgment in Prodest (237/83, EU:C:1984:277, paragraph 6).

13 – Judgment in Lopes da Veiga (9/88, EU:C:1989:346, paragraph 17).

14 – Paragraph 27 of its written observations.

15–      Given Mr Kik’s circumstances, the following are clearly not applicable: Articles 14 and 14a (‘Special rules applicable to persons, other than mariners …’), Article 14c (‘Special rules applicable to persons who are simultaneously employed … and self-employed …’), Article 14d (‘Miscellaneous provisions’, relating to cases provided for in Articles 14, 14a, 14c and the case of pensioners), Articles 14e and 14f (‘Special rules applicable to civil servants …’), Article 15 (‘Rules concerning voluntary insurance or optional continued insurance’), Article 16 (‘Special rules regarding persons employed by diplomatic missions …’), Article 17 (‘Exceptions …’ provided for by common agreement between Member States) and Article 17a (‘Special rules concerning recipients of pensions …’).