The law applicable to aircrew
On 19 May 2022, the Court of Justice delivered a ruling on the social security legislation applicable to aircrew employed by an airline (CJEU, 19 May 2022, Case C-33/21, INAIL and INPS), which also gave it the opportunity, for the first time, to set out the new applicability criterion introduced in 2012 by Regulation 883/2004, namely the “home base” used to determine the social security legislation applicable to aircrew.
The case concerns 219 Ryanair employees based at the Italian airport of Bergamo. The Italian social security authorities took the view that these employees, who were recruited on an Irish contract of employment and were subject to Irish social security legislation, should pay their social security contributions in Italy.
Ryanair “belatedly” submitted E101 certificates to the Italian court to prove that these employees were posted workers and were covered by the Irish social security scheme. When an appeal was lodged, the judges examined these E101 certificates closely: without referring to fraudulent certificates, they note “that they were not numbered or arranged in an intelligible or orderly manner, that there were 321 certificates, thus some were probably duplicates, and that they did not cover all of the 219 Ryanair employees assigned to” Bergamo airport.
The judges decided that all employees who were not covered by a valid E101 certificate were governed by Italian legislation. The Court of Justice upheld this decision: this legislation is applicable to the employees in question, even if they only work for 45 minutes per day in Ryanair premises intended to be used by staff, known as the ‘crew room’, and who, “for the remaining working time are on board that airline’s aircraft”.
Within the meaning of Regulation 1408/71, which is applicable to part of the period concerned, this ‘crew room’ constitutes “a branch or permanent representation” and the crew have a “significant connection” “with the place from which” they “principally discharge their obligations to their employer”. The Court reaches the same finding in respect of periods that come under the new Regulation 883/2004, and also when it applies the home base criterion, introduced in 2012: the activity of aircrew shall be “deemed to be an activity pursued in the Member State where the home base […] is located”, i.e. the location nominated by the operator where the crew normally starts and ends its duty period.
(Article published in IR Notes 187 – 1st June 2022)
