Undertaking paid employment abroad while on sabbatical

The Netherlands Supreme Court has requested that the European Court of Justice should clarify which national social insurance regime should apply to the scenario of a Dutch-based employee who – without resigning her job – spent the three-month sabbatical she had been granted by her employer in the Netherlands working in Austria as a skiing instructor. This somewhat unusual situation had prompted the question as to whether the employee in question should be treated as someone who was under regular service contract in two different Member States (in which case Netherlands law should prevail) or as someone who had successively performed work in multiple Member States (in which case Netherlands law as the initial governing system should be followed by Austrian law as the successive regime). Previous rulings by the European Court had unfortunately failed to yield an undisputed answer to the basic question as to whether someone on special leave could in fact be said to be undertaking employment: although a temporary interruption of actual duties could be regarded as not detracting from the continuity of the performance of duties in paid employment, it could equally be argued that it should be the performance of de facto duties which should be regarded as pivotal.

The Supreme Court more specifically has asked the EU Court to determine (i) whether an employee on unpaid leave should be regarded as having continued to undertake paid employment as long as his or her service contract is upheld and the period in question in terms of the Netherlands Unemployment Insurance Act is regarded as a period of continued undertaking of paid employment, (ii) which (national) regime should be regarded as the governing system according to Regulation (EEC) No. 1408/71 in the event that the employee while on sabbatical undertakes paid employment in a Member State other than his or her own, and (iii) whether allowances should be made in arriving at the choice of law for the fact that the employee in question in subsequent years had consistently undertaken paid employment in the same foreign Member State (i.e. Austria) for one or two weeks each without her being on unpaid leave from her regular job in the Netherlands.