On 21 December 2020, a request for a preliminary ruling was filed by the Italian INAIL (National Institute for Insurance against Accidents at Work) and INPS (National Social Security Institute) against the Irish airline company Ryanair, responsible for not taking out insurance with the aforementioned institutes for its employees assigned to Orio al Serio Airport in Bergamo, Italy.
The regulatory context
Article 14(2)(a) of Regulation EEC 1408/71 stipulates the application of social security systems to employed and self-employed workers and members of their families moving within the Community. This regulation was then abolished from 1 May 2010 and replaced by EC Regulation 883/2004, then by 988/2009 and finally by EU Regulation 465/2012.
Cases of subjection to a given legislation
According to EEC Regulation 1408/071, employees are subject to the legislation of a single Member State: a person who is employed in a Member State is subject to the legislation of that given Member State even if the company or employer is based elsewhere.
However, if employees are employed in two or more Member States, the legislation to be taken into account is the one of the State where the company is based.
Another exception is where there are branches of the same company: in that case, the relevant legislation will be the one of the State in which the branch is located.
Following an inspection, the INPS found that 219 Ryanair employees assigned to Bergamo airport were not covered by any insurance during the period from June 2006 to February 2010; Similarly, INAIL considered that the same employees should have been insured with the institution during the period from 25 January 2008 to 25 January 2013.
On its side, Ryanair presented E101 certificates issued by the Irish competent authority, but 321 of these were counted – against 219 employees – and all of them were neither classified nor numbered, giving rise to the idea that there was duplication, and that the documentation did not cover all the employees involved.
Since the period under analysis covers several years during which the regulations were repealed and/or amended, both Regulation 1408/071 and Regulation 883/2004 must be used to determine the applicable legislation, therefore:
‘the legislation applicable to the flight crew of an airline company, established in a Member State, who are not covered by E101 certificates and who work for a period of 45 minutes per day in a crew room available to that airline company in the territory of another Member State in which that flight crew resides, and who, for the remaining working time, are on board the aircraft of that company, is the legislation of the latter Member State’
Since the Orio al Serio crew-room, where employees stay for 45 minutes, can be considered as a Ryanair branch in Italy, Italian legislation applies for the payment of employees’ contributions since, when there is a branch of a company, the legislation of the Member State where that branch is located is applicable.
It follows that the decision of the EU Court of Justice obliges Ryanair to pay INPS and INAIL contributions to the 219 employees at Orio al Serio.