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Principality of Liechtenstein Fiirstlicher

Oberster Gerichtshof

SV. 2024. 36 - Document number 27

ORDER

The Princely Supreme Court (Furstlicher Oberster

Gerichtshof}, as appellate court, through its First Senate,

composed of the President, University Professor (retired)

Dr Hubertus Schumacher, and Supreme Court Judges, Dr

Wolfram Purtscheller, Dr Marie-Theres Frick, Dr Valentina

Hirsiger and lie. iur. Stefan Ziind, as additional members of

the Senate, in addition, in the presence of court clerk Astrid

Wanger, in the social security proceedings between the

appellant Sabine Mohr-Egger, LL.M., lawyer, XXX, and

the respondents Liechtensteinische Alters- und

Hinterlassenenversicherung (Liechtenstein Old-Age and

Survivors' Insurance), 2. Liechtensteinische

Invalidenversicherung (Liechtenstein Invalidity

Insurance) and 3. Liechtensteinische

Familienausgleichskasse (Liechtenstein Family

Allowances Office), all at Gerberweg 2, FL-9490 Vaduz,

all represented by MLaw Julia Walser and others, also of

the same address, concerning the levying of contributions,

in the appeal on a point of law by Sabine Mohr-Egger,

SV.2024.36

LL.M., against the judgment of the Princely Court of

Appeal {Furstliches Obergericht) of 10 July 2025,

SV. 2024. 36, document number 19, by which the appellant's

appeal against the decision of the respondents of 21

October 2024, A. 2023/039, was dismissed, in closed

session, has ordered:

I. The following questions are referred to the EFTA

Court for an advisory opinion:

First question:

Must Article 14(5b) of Regulation (EC) No 987/2009 as

amended by Regulation (EU) No 465/2012, according

to which marginal activities shall be disregarded for the

purposes of determining the applicable legislation

under Article 13 of Regulation (EC) No 883/2004 (the

basic Regulation), be interpreted as meaning that

already the fact that the income from a political activity

pursued in the State of residence, which according to

national legislation corresponds to that of a civil

servant and thus an employed person, amounts to less

than 0. 5% of the income that the corresponding insured

person receives from an activity as a self-employed

person in another Member State suffices in this

connection to speak of a marginal activity or must

further criteria be taken into consideration, for

example, the duration of the activity as an employed

person, on the one hand, and the self-employed activity,

on the other, the importance of the activity as an

employed person, pursued wholly independently of the

activity as a self-employed person, for the political

SV.2024.36

community of the State of residence as well as the place

of performance of the activity as an employed person,

the actual pursuit thereof or the manner of performance

prescribed as a result of the appointment to a political

function or are further additional criteria to be taken

into consideration, and if so, which?

Second question:

In the event that it is not sufficiently clarified through

the answer to the first question whether the relevant

activity as an employed person must be qualified as

marginal, the question is asked whether, having regard

to recitals 1, 5, 10, 12, 15 and 17 in conjunction with

Article 13(4) and (5) of Regulation (EC) No 883/2004,

Article 34(l)(b) and (2)(b) of the Act of 14 December

1952 on Old-Age and Survivors Insurance (AHVG)

must be interpreted as meaning that the insured person

who receives an old-age pension in the Member State of

residence as a result of her activity as a self-employed

person previously pursued in that State must be subject

nonetheless to compulsory social insurance in the

Member State in which the activity as a self-employed

person is still pursued.

II. The appeal proceedings before the Princely Supreme

Court in case SV. 2024. 36 (OGH. 2025. 84) are stayed

pending receipt of the advisory opinion and following

receipt of such will be resumed of the Court's own

motion.

SV.2024.36

Grounds

1. Facts and procedure to date

1. 1 The appellant is an Austrian national. She

had been registered with the Vorarlberg Bar Association as

a lawyer in Austria since 2002. In 2003 she was admitted

in Liechtenstein as an established lawyer. She was entered

in the register of Liechtenstein lawyers in 2012. She earned

income as a self-employed lawyer in Liechtenstein and

Austria, with the major part of her earnings generated in

Liechtenstein. The appellant renounced the pursuit of the

profession as a lawyer in Austria with effect from 30

November 2021. Thereafter, the appellant has (had)

earnings in Austria as a member of the town council and

now as an office-holding councillor for the town of

Hohenems. Since 1 March 2022 she has been in receipt of

an old-age pension in Austria. In Liechtenstein she

continues to pursue an activity as a self-employed lawyer.

1. 2. On 22 February 2023, the respondents

registered the appellant as a person pursuing a self-

employed activity with effect from 1 December 2021. On

the same day provisional decisions for December 2021,

January to December 2022 and January to December 2023

were issued by which the appellant was required to pay old-

age and survivors' insurance (AHV), invalidity insurance

(IV) and family allowances office (FAK) contributions as a

self-employed person for the respective years as well as

SV.2024.36

administrative costs amounting to CHF XXX and two

amounts ofCHF XXX.

1. 3. By the contested decision of 21 October

2024, A. 2023/039, the respondents dismissed the

appellant's appeal against these three provisional

decisions. In summary it was reasoned that the situation to

be assessed in determining a possible obligation on the

appellant to pay contributions had changed from 1

December 2021, as with effect from 30 November 2021 the

appellant had renounced the pursuit of the profession of a

lawyer in Austria. Originally, on the basis of the

transitional provision in Article 87(8) of Regulation (EC)

No 883/2004, the appellant was under an obligation to pay

contributions in Austria, although she had always earned

the major part of her income in Liechtenstein. The appellant

could have retained this contribution obligation at the latest

until 31 May 2022 or until the situation changed. An

exception agreement as provided for in Article 16(1) of

Regulation (EC) No 883/2004 had not been entered into.

Hence, from 1 December 2021, as a result of the changed

circumstances, the appellant was, in any event, under an

obligation to pay contributions in Liechtenstein in

accordance with Articles 11 and 13 of Regulation (EC) No

883/2004.

1. 4. By judgment of 10 July 2025 (ON 19), now

under challenge, the Princely Court of Appeal dismissed the

appellant's appeal against that decision. Its reasoning was

based primarily on Article 13(3) and (4) of Regulation (EC)

No 883/2004 and Article 14 of Regulation (EC) No

987/2009. According to the Princely Court of Appeal, it

SV.2024.36

follows from these provisions in connection with the

appellant's (uncontested) statement, according to which her

income as a town councillor amounts to less than 0. 5% of

her income from her self-employed activity, that the

activity as an employed person must be characterised in

comparison as marginal and hence as not relevant here.

1. 5. By her appeal on a point of law lodged in

due time, the appellant challenges this judgment (document

number 19) on grounds of an incorrect assessment of the

law and deficiencies in the appeal proceedings. In

conclusion, it is requested that the Supreme Court "amends

the decision of the respondents of 21 October 2024,

insurance number 89580, statement number 10. 010.096,

appeal number A. 2023/039, such as to allow the appellant's

appeal so that Liechtenstein social security legislation is

not applied to the appellant and no AHV-IV-FAK

contributions are required of her and that the provisional

decisions of the respondent for the years 2021, 2022 and

2023, all of 22 February 2023, statement number

10. 010. 096, insured person number 89580, are set aside

without being replaced". In the alternative, a request is

made that the judgment be set aside. The appellant proposes

that this case be referred to the EFTA Court for an advisory

opinion.

1. 6. The respondents lodged within the deadline

a reply to the appeal on a point of law in which they request

the Supreme Court to dismiss the appeal.

2. General considerations

Regulation (EC) No 883/2004 of the European

Parliament and of the Council of 29 April 2004 on the

SV.2024. 36

coordination of social security systems is an integral part

of the EEA Agreement (Publication of 26 July 2012 of

Decision of the EEA Joint Committee No 76/2011, State

Law Gazette 2012 No 202) and is directly applicable in

Liechtenstein. As higher-ranking and more recent law, it

takes precedence over national provisions (Constitutional

Court, 27 June 2022, case StGH 2021/088, paragraph 2. 2 of

the reasoning, published as GE 2022, 227, confirming the

ruling of the Princely Supreme Court of 10 September 2021,

case 01 CG. 2020. 275, paragraph 8. 2 of the reasoning,

published as GE 2021, 161).

The Princely Supreme Court considers it necessary

for the following reasons to refer this case to the EFTA

Court for an advisory opinion on the interpretation of the

following provisions in accordance with Article 34 of the

Agreement Between the EFTA States on the Establishment

of a Surveillance Authority and a Court of Justice.

3. Legal framework

3. 1. EEA law

Recitals 1, 5, 10, 12, 15 and 17 of Regulation (EC)

No 883/2004 of the European Parliament and of the Council

of 29 April 2004 on the coordination of social security

systems (basic Regulation) are worded as follows:

(1) The rules for coordination of national social security

systems fall within the framework of free movement of

persons and should contribute towards improving their

standard of living and conditions of employment.

SV.2024.36

(5) It is necessary, within the framework of such

coordination, to guarantee within the Community equality

of treatment under the different national legislation for the

persons concerned.

(10) However, the principle of treating certain facts or

events occurring in the territory of another Member State

as if they had taken place in the territory of the Member

State whose legislation is applicable should not interfere

with the principle of aggregating periods of insurance,

employment, self-employment or residence completed under

the legislation of another Member State with those

completed under the legislation of the competent Member

State. Periods completed under the legislation of another

Member State should therefore be taken into account solely

by applying the principle of aggregation of periods.

(12) In the light of proportionality, care should be taken to

ensure that the principle of assimilation of facts or events

does not lead to objectively unjustified results or to the

overlapping of benefits of the same kind for the same

period.

(15) It is necessary to subject persons moving within the

Community to the social security scheme of only one single

Member State in order to avoid overlapping of the

applicable provisions of national legislation and the

complications which could result therefrom.

SV.2024.36

(17) With a view to guaranteeing the equality of treatment

of all persons occupied in 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

his/her activity as an employed or self-employed person.

Article 1 of the basic Regulation, headed "Definitions", is

worded.

"For the purposes of this Regulation:

(a) '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;

(b) 'activity as a self-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;

(d) 'civil servant' means a person considered to be such or

treated as such by the Member State to which the

administration employing him/her is subject;

(e) 'special scheme for civil servants ' means any social

security scheme which is different from the general social

security scheme applicable to employed persons in the

Afember State concerned and to which all, or certain

categories of, civil servants are directly subject;

10 SV.2024.36

(1) 'legislation' means, in respect of each Member State,

laws, regulations and other statutory provisions and all

other implementing measures relating to the social security

branches covered by Article 3(1);

Article 11 of the basic Regulation ("General rules") is

worded:

"1, Persons to whom this Regulation applies shall be

subject to the legislation of a single Member State only.

Such legislation shall be determined in accordance with

this Title.

3. Subject to Articles 12 [to] 16:

(a) a person pursuing an activity as an employed or self-

employed person in a Member State shall be subject to the

legislation of that Member State;

(b) a civil servant shall be subject to the legislation of the

Member State to which the administration employing

him/her is subject;

(e) any other person to whom subparagraphs (a) to (d) do

not apply shall be subject to the legislation of the Member

State of residence, without prejudice to other provisions of

this Regulation guaranteeing him/her benefits under the

legislation of one or more other Member States.

Article 13 of the basic Regulation ("Pursuit of activities in

two or more Member States") is worded:

11 SV.2024. 36

7 A person who normally pursues an activity as an

employed person in t-wo or more Member States shall be

subject:

(a) to the legislation of the Member State of residence if

he/she pursues a substantial part of his/her activity in that

Member State, or

(b) if he/she does not pursue a substantial part of his/her

activity in the Member State of residence:

(i) to the legislation of the Member State in which the

registered office or place of business of the undertaking or

employer is situated if he/she is employed by one

undertaking or employer; or

(ii) to the legislation of the Member State in which the

registered office or place of business of the undertakings

or employers is situated if he/she is employed by two or

more undertakings or employers which have their

registered office or place of business in only one Member

State; or

(iii) to the legislation of the Member State in which the

registered office or place of business of the undertaking or

employer is situated other than the Member State of

residence if he/she is employed by two or more

undertakings or employers, which have their registered

office or place of business in two Member States, one of

which is the Member State of residence; or

(iv) to the legislation of the Member State of residence if

he/she is employed by two or more undertakings or

employers, at least two of which have their registered office

12 SV.2024. 36

or place of business in different Member States other than

the Member State of residence.

2. A person who normally pursues an activity as a self-

employed person in two or more Member States shall be

subject to:

(a) the legislation of the Member State of residence if

he/she pursues a substantial part of his/her activity in that

Member State;

[or]

(b) the legislation of the Member State in which the centre

of interest of his/her activities is situated, if he/she does

not reside in one of the Member States in which he/she

pursues a substantial part of his/her activity.

3. A person who normally pursues an activity as an

employed person and an activity as a self-employed person

in different Member States shall be subject to the

legislation of the Member State in which he/she pursues an

activity as an employed person or, if he/she pursues such

an activity in two or more Member States, to the legislation

determined in accordance with paragraph 1.

4. A person who is employed as a civil servant by one

Member State and -who pursues an activity as an employed

person and/or as a self-employed person in one or more

other Member States shall be subject to the legislation of

the Member State to which the administration employing

him/her is subject.

5. Persons referred to in paragraphs 1 to 4 shall be treated,

for the purposes of the legislation determined in

accordance with these provisions, as though they were

13 SV.2024. 36

pursuing all their activities as employed or self-employed

persons and were receiving all their income in the Member

State concerned.

Article 87(8) of the basic Regulation ("Transitional

provisions") is worded:

8. If, as a result of this Regulation, a person is subject to

the legislation of a Member State other than that

determined in accordance with Title II of Regulation (EEC)

No 1408/71, that legislation shall continue to apply while

the relevant situation remains unchanged and in any case

for no longer than 10 years from the date of application of

this Regulation unless the person concerned requests that

he/she be subject to the legislation applicable under this

Regulation.

Article 14 of Regulation (EC) No 987/2009 of the European

Parliament and of the Council of 16 September 2009 laying

down the procedure for implementing Regulation (EC) No

883/2004 on the coordination of social security systems as

amended by Regulation (EU) No 465/2012 (hereinafter

also: "implementing Regulation"), headed "Details relating

to Articles 12 and 13 of the basic Regulation", is worded:

5b. Marginal activities shall be disregarded for the

purposes of determining the applicable legislation under

Article 13 of the basic Regulation. Article 16 of the

implementing Regulation shall apply to all cases under this

Article.

14 SV.2024.36

3. 2. 1. National law (Liechtenstein)

Article 34 of the Act of 14 December 1952 on Old-

Age and Survivors' Insurance (Old-Age and Survivors'

Insurance Act) (Gesetz vom 14. Dezember 1952 uber die

Alters- und Hinterlassenenversicherung (AHVG)), headed

"7. Compulsorily insured persons", is worded:

1) Insured in accordance with this Act are:

b) the natural persons who pursue an economic activity in

Liechtenstein;

2) Not insured are.

b) persons affiliated to a foreign public old-age and

survivors' insurance if inclusion in the insurance would

entail an unreasonable dual burden for them. Upon a

reasoned request, these shall be exempted from the

compulsory insurance by the fund,

Article 55 of the Old-Age and Survivors' Insurance Act is

worded.

Persons who have completed the 65th year of life shall be

entitled to an old-age pension; this shall be without

prejudice to taking a pension early in accordance with

Article 73. The entitlement shall arise on the first day of

15 SV.2024.36

the month which follows the completion of the 65th year of

life It shall expire on death.

Article 73 of the Old-Age and Survivors' Insurance Act

(headed "I. Taking the old-age pension early") is worded:

1) Persons who fulfil the minimum period of contribution

for the entitlement to an old-age pension may take the

pension early from the 60th year of life ...

3. 2. 2. National law (Austria)

Section 1 of the Public Servants' Sickness and

Accident Insurance Act (Beamten-Kranken- und

Unfallversicherungsgesetzes (B-KUVG)), headed "Scope of

the insurance" and "Compulsory insurance the sickness and

accident insurance", is worded:

(1) Unless an exemption exists under section 2 or 3, insured

in the sickness and accident insurance are:

10.

b) The mayors and other members of municipal councils as

well as local leaders (local representatives) provided that

they are not members of the municipal council as well as

district leaders and district councillors;

12. Persons -who on the basis of one of the functions listed

in points 8 to 11 receive a (survivors') pension, an ongoing

allowance or an extraordinary pension on the basis of

16 SV.2024. 36

Ldnder law as long as they are resident within national

territory;

4 Explanations

The provisions of Title II of Regulation (EC) No

883/2004, of which Articles 11 to 16 form part, constitute

a complete and uniform system of conflict rules. Those

provisions are intended not only to prevent the

simultaneous application of a number of national

legislative systems and the complications which might

ensue, but also to ensure that persons covered by that

regulation are not left without social security cover because

there is no legislation which is applicable to them. Thus,

where a person falls within the scope ratione personae of

Regulation No 883/2004, as defined in Article 2 thereof,

the rule in Article 11(1) of the regulation that the

legislation of a single Member State is to apply is in

principle applicable and the national legislation applicable

is determined in accordance with the provisions of Title II

of the regulation. Those provisions are solely intended to

determine the national legislation applicable to persons

falling within the scope of that regulation. As such, they

are not intended to lay down the conditions creating the

right or the obligation to become affiliated to a social

security scheme or to a particular branch of such a scheme.

It is for the legislature of each Member State to lay down

those conditions. However, when the Member States lay

down the conditions creating the right or the obligation to

become affiliated to a social security scheme, they are

under an obligation to comply with the provisions of the

17 SV.2024.36

EU law in force. In particular, the conflict rules laid down

by Regulation No 883/2004 are mandatory for the Member

States and the latter do not have the option to determine to

what extent their own legislation or that of another Member

State is applicable (ECJ, C-451/17 'Walltopia' AD,

paragraphs 41, 42, 47 and 48 with further references).

Accordingly, it also cannot be accepted that insured

persons falling within the scope of those rules can

counteract their effects by being able to elect to withdraw

from their application (ECJ, C-89/16 Szoja, paragraph 42).

It follows from the requirements of the uniform

application of Union law and the principle of equal

treatment that the terms of a provision of Union law (or

EEA law) which does not contain any express reference to

the law of the Member States for the purpose of determining

its meaning and scope must be given an autonomous and

uniform interpretation throughout the European Union

(EEA), which interpretation must take into account not only

the wording of the provision but also its context and the

objective pursued by the legislation in question (compare

ECJ, C-610/18 AFMB Ltd and Others, paragraph 50 with

further references).

The appellant is correct to observe that in Case

C-3 3/22, Osterreichische Datenschutzbehorde, paragraph

59, the ECJ held that, under the second paragraph of

Article 288 TFEU, a regulation (to be applied in that case)

is binding in its entirety (emphasis added by the Senate)

and directly applicable in all Member States. However,

according to certain writers in the legal literature (see

below) and other ECJ rulings (compare C-418/18 P

18 SV.2024.36

Puppinck and Others v Commission, paragraphs 75 and 76

with further references), this principle cannot be applied

without restriction to the recitals of regulations. Instead,

accordingly, the ECJ regularly relies on recitals for the

purposes of teleological interpretation. They provide

valuable insights into the objectives and purpose of the

legal act, the intention of the Union legislature and the

scheme of the regulation. Consequently, recitals are used

by the ECJ as a guideline in the teleological interpretation

of regulations. They often clarify individual provisions of

a regulation and disclose the purpose. However, no

consideration may be given to recitals if they are not

covered by the provisions of the regulation. Finally, it is

not permissible to interpret the content of the provisions of

a regulation contrary to their utter literal sense as a

correction, relying on divergent statements in the recitals.

Rather, the ECJ bases itself primarily on the wording of the

provision and considers the recitals as an additional aid to

interpretation (compare Ulrike Frauenberger-Pfeiler, "Vom

Einfluss des Parteiwillens auf den grenziiberschreitenden

Bezug der Streitsache", ecolex 2024/281; compare

Christoph Kronthaler and Simon Laimer,

"Schwerwiegender Mangel nach dem VGG", ZVR 2024/88,

Zeitschrift fur Verkehrsrecht 2024, 243-246). In other

words, although they have no binding normative substance,

recitals are of particular importance also in the

interpretation of a directive's provisions. Recitals often

clarify individual provisions of a directive or disclose their

purpose. In this respect, recitals must be consulted as a

guideline in the teleological interpretation of directives. If

recitals are not covered by the provisions of the directive,

19 SV.2024.36

no consideration may be given to them. It is unacceptable

to interpret the content of the provisions of a directive

contrary to their utter literal sense as a correction, relying

on divergent statements in the recitals (compare Kronthaler

and Laimer).

Admittedly, the system introduced by Regulation

No 883/2004 (and its predecessor Regulation No 1408/71)

is solely a system for the coordination of the social security

legislation of the Member States and not for the

harmonisation of such legislation; it is, however, inherent

in such a system that differences may remain between the

social security rules of the Member States, not least with

regard to the level of social contributions to be paid in

respect of a given activity (C-610/18, paragraph 68).

For the purposes of achieving the objectives

stated, Article ll(3)(a) of Regulation No 883/2004 lays

down the general rule that a person who pursues an activity

as an employed person in the territory of a Member State is

subject to the legislation of that State. That general rule is

stated in that provision to be "subject to Articles 12 to 16"

of Regulation No 883/2004. In certain specific situations,

the unrestricted application of that principle might in fact

create, rather than prevent, administrative complications

for workers as well as for employers and social security

authorities, which could impede the freedom of movement

of the persons covered by those regulations (C-610/18,

paragraphs 42 and 43).

Article 13(5) of the basic Regulation reOects the

implications of the principle of applying only one system

of law even in the event of connections to several Member

20 SV.2024.36

States. If in this way double insurance is to be avoided, at

the same time, however, it is necessary to prevent this

choice of the regulation from placing employed or self-

employed persons at a disadvantage (H. -D. Steinmeyer in

M. Fuchs and C. Janda (eds. ), Europaisches Sozialrecht,

8th edition, Article 13, point 24, page 242).

Article 14 of Regulation No 987/2009 contains

important clarifications, inter alia, in relation to Article 13

of Regulation No 883/2004 (Pursuit of activities in two or

more Member States). These involve, in actual fact, not

procedural rules, but provisions of a substantive nature

which for schematic reasons would be better included in the

basic Regulation (M. Poltl in B. Spiegel (ed. ),

Zwischenstaatliches Sozialversicherungsrecht, 79th

update, Regulation 987/2009, Article 14, point 1; compare

M. Poltl, 97th update, Regulation 883/2004, Article 13,

point 3).

In this connection, the circumstance, also referred

to already in the previous instances, must be mentioned that

as regards the transition from Regulation No 1408/71 to

Regulation No 883/2004 in existing cases Article 87(8)

thereof provides that the competence applicable under

Regulation No 1408/71 shall continue to apply while the

relevant situation remains unchanged, however, for no

longer than 10 years, that is to say (in Austria) until 30

April 2020 (M. Poltl, Regulation 883/2004, Article 13,

point 3/1, referring to Article 87, point 21 et seq. ); in

Liechtenstein until 31 May 2022

The definitions in the basic Regulation for "civil

servants" in Article l(d) and for "special schemes for civil

21 SV.2024.36

servants" in Article l(e) are relevant only in relation to a

small number of rules in Regulation No 883/2004. Article

ll(3)(b) and Article 13(4) refer to civil servants. Articles

49 and 60 as well as Articles 31, 41 and 57 of Regulation

No 987/2009 to special schemes for civil servants. As

already mentioned, these definitions do not rely on a

concept of European law but on the national classification.

Consequently, all persons treated as a civil servant under

the national classification must also be considered civil

servants. As regards a special scheme for civil servants

what is crucial, first of all, is that it involves a scheme for

civil servants within the meaning of the definition

mentioned and, in addition, that it is separated from the

general scheme for other employed persons. Inasmuch as no

special rules for civil servants are provided for in

Regulation No 883/2004, for these groups of persons, too,

the general rules apply and, in particular, pursuit of an

activity as a civil servant is considered the pursuit of an

activity as an employed person as provided for in point (a)

(e. g. for the application of the rules on family benefits).

In relation to Austria, there are, in accordance with

existing practice, various elements which point to civil

servant status from the perspective of social security law.

First of all, the legal nature of the employer is decisive.

Thus, all staff engaged by a body governed by public law

(in particular, the Federation, Lander, municipalities but

also statutory bodies for the representation of collective

interests or social security institutions) are considered civil

servants irrespective of whether these are in a public law

or private law employment relationship. Second, it depends

on the nature of the relationship for employment law

22 SV.2024.36

purposes - that is to say, every person who is an

employment relationship governed by public law is

considered a civil servant. Usually, this involves a group of

persons who are likely already included in the first

category. However, it cannot be excluded in the context of

privatisations that although a private law employer exists,

part of the workforce transferred remains in an employment

relationship governed by public law. Third, the

classification may result also from social security law

status. Thus, insurance in a special scheme for civil

servants results always in civil servant status - but it must

be observed in relation to this group also that there are few

cases in which a private law employer has staff who are

protected in special scheme for civil servants. Further, it

must be presumed, moreover, that persons exercising a

political function are considered civil servants.

There can be no doubt that, inter alia, the Public

Servants' Sickness and Accident Insurance Act is

considered a special scheme for civil servants. Austria has

not made use of the possibility of Annex 2 to Regulation

No 987/2009, meaning that, as regards sickness or accident

insurance, protection under a special scheme for civil

servants is, in relation to Austria, subject to coordination

with regard to benefits like every other sickness or accident

insurance scheme (compare, in this connection, B. Spiegel

in B. Spiegel, 109th update, Regulation 883/2004, Article

1, points 17 to 19; compare M. Poltl, Regulation 883/2004,

Article 11, points 16 to 19, and Article 13, points 26 to

26/2).

23 SV.2024.36

As regards the assessment of political functions in

Austria and thus, in this connection, the question whether

civil servants are insured, at any rate, in Austria, it must be

determined whether, under the provisions on the applicable

legislation, persons exercising political functions are

included among persons pursuing an economic activity.

With regard to the compulsory insurance resulting, as such,

under the Public Servants' Sickness and Accident Insurance

Act, these persons must indeed be regarded as persons

treated as civil servants. In accordance with the scheme of

Regulation No 883/2004 (as well as Regulation No

1408/71), these persons, too, must therefore be regarded as

a special variant of employed persons. For that reason, also

the entirety of Title II of Regulation No 8837[2004] is

applicable to them. Consequently, inasmuch as an activity

as a self-employed person or employed person is pursued in

another country, a categorisation must be effected in

accordance with Article 13(1) or (3) of Regulation No

883/2004. If, in accordance with those provisions, the

activity in another country is subject to Austrian

legislation, the same legal position applies as in the case

where this activity is pursued within the national territory.

If the political activity is subject to the foreign legislation,

the question asked is redundant (compare M. Poltl,

Regulation 883/2004, Article 11, points 17/2, 18 and 19).

As a result of Regulation (EU) No 465/2012,

paragraph 5b, cited above, was added to Article 14 of

Regulation No 987/2009. This provision specifies that

throughout the entire scope of Article 13 of Regulation No

883/2004 marginal activities shall be disregarded. As a

result, categorisations not reflecting the true economic

24 SV.2024.36

nature of an activity are precluded and manipulations

prevented. Marginal activities are disregarded, however,

only for the purposes of determining the competence in

accordance with Title II of Regulation No 883/2004.

Subsequently, the Member State determined as competent

in accordance with Title II takes account of the marginal

activity in accordance with its legislation. The second

sentence of Article 5b provides that also in such cases the

procedure under Article 16 of this Regulation applies, for

example, that only the Austrian institution of the place of

residence is entitled to make a provisional determination of

competence. However, since Article 16 determines the

procedure for the application of Article 13 of the basic

Regulation, it follows from that that also the case of a

marginal activity remains a case for Article 13. This is

logical, as the starting point is that a person pursues an

activity in several Member States which results in the

application of Article 13. Only this institution can take the

legal decision in the context of a provisional determination

that one of the activities is marginal. Subsequently, also the

institution determined as competent must take account of

the marginal activity in accordance with its legislation.

In the original version, the exclusion of marginal

activities applied only for paragraph [5(b)j in the version

applicable at the time (continuous pursuit of activities in

two or more Member States with the exception of "marginal

activities"). By way of Regulation No 465/2012, this

criterion was extended to the entire scope of Article 13.

It is intended that an activity be regarded as

"marginal" (insignificant) if it is pursued on a permanent

25 SV.2024. 36

basis but marginal in terms of time and economic return.

As an indicator, it was suggested that activities accounting

for less than 5% of the worker's regular working time

and/or less than 5% of his/her overall remuneration should

be regarded as insignificant. Also the nature of the

activities, such as activities that are of a supporting nature,

that lack independence, that are performed from home or in

service of the main activity, can be an indicator that they

concern marginal activities.

However, a judgment of the ECJ of 13 September

2017 (C-570/15, X) casts doubt on the 5% threshold. In a

case in which of all the hours worked by a worker 6. 5%

were performed in the Member State of residence, mostly

by working from home, this activity was considered

marginal for the purposes of determining the competence;

in this regard, however, the ECJ emphasised that the

employment contract did not provide for the worker to

perform activities in the territory of his Member State of

residence. It is unclear what significance this criterion has

also in other cases (compare, in this regard, M. Poltl in B.

Spiegel, 79th update, Regulation 987/2009, Article 14,

points 40 to 46/1, and M. Poltl in B. Spiegel, 97th update,

Regulation 883/2004, Article 13, point 5/1).

5. Application to the proceedings at hand

In the first place, the appellant is to be agreed with

in her argument that for the assessment of the legal

questions at issue here it is not the provisions of Article

13(1) and (2) of Regulation No 883/2004 that are decisive

and hence it is also not significant whether the relevant

person pursues a substantial part of her activity or

26 SV.2024.36

employed activity in one Member State. Instead, the

provisions of Article 13(3) and (4) are decisive here.

The claims of the appellant (in document number

16) that already on the basis of her activity as a town

councillor she was, as such, required to be compulsorily

insured with the Insurance Fund for Civil Servants and

Officials of the Public Authorities, the Railways and the

Mining Sector (Versicherungsanstalt offentlich

Bediensteter, Eisenbahnen und Bergbau (BVAEB)) (and as

a result she is included in a special scheme for civil

servants) were not contested in detail by the defendants and

therefore must be regarded as given for the purposes of this

decision (Sections 266 and 267 of the Code of Civil

Procedure (Zivilprozessordnung)). As a result of her

activity as a town councillor in the town of Hohenems (and

thus for a body governed by public law) in Austria, the

appellant falls within the scope of the Public Servants'

Sickness and Accident Insurance Act and must therefore be

categorised, in accordance with the principles set out, as an

insured person treated as a civil servant. Thus, inasmuch as

no special rules for civil servants are provided for in

Regulation No 883/2004, also for the appellant the general

rules apply as they do for employed persons.

It is correct that, in accordance with that argument,

for the purposes of Article 13(4) of Regulation No

883/2004, the appellant - in so far as is relevant here - is

subject to the legislation of the Member State to which the

administration employing her is subject, that is to say, to

this extent, Austria.

27 SV.2024.36

However, Article 14 of Regulation No 987/2009,

which, as mentioned, contrary to the appellant's position,

comprises not only implementing provisions but also

provisions of a substantive nature, includes the rule in

paragraph 5b, inserted by Regulation No 465/2012,

according to which, marginal activities shall be disregarded

for the purposes of determining the applicable legislation

under Article 13 of the basic Regulation. This applies -

contrary to the appellant's arguments - throughout the

entire scope of Article 13 of Regulation No 883/2004.

It is uncertain, however, how the term "marginal

activity" must be interpreted and on which criteria it is

based. It is uncontested that the relevant activity is pursued

by the appellant on a permanent basis. According to the

legal literature and the case law of the ECJ, the time spent

on this activity plays a decisive role. The percentages of

5% and 6. 5% mentioned hitherto in this connection are,

however, linked to further conditions, which are not

fulfilled in the present case. Namely, it is not at issue here,

for example, that the "employment contract" of the

appellant does not provide for her to carry out work in the

territory of her Member State of residence (compare ECJ,

C-570/15, paragraph 24). The fact is that, according to the

observations of the appellate court, the economic return

from her activity as town councillor is extremely low.

However, that constitutes only one among many criteria.

Rather, according to the case law cited (C-570/15, in

particular paragraph 21), regard must be had also to the

duration of periods of activity (time worked) and to the

nature of the employment as defined in the contractual

documents (decisive in that case), as well as to the actual

28 SV.2024.36

work performed, where appropriate In this regard, in the

present case, simply on the basis of general experience

(compare Section 269 of the Code of Civil Procedure), it

cannot be said that the activity as a town councillor is only

of a supporting nature, that lacks independence, performed,

for example, from home or in service of the main activity.

The question arises how these criteria are to be weighted in

relation to each other in order to reach a final determination

on whether the activity of the appellant as a town councillor

must be assessed as marginal or not. The appellant s

activity as an office-holding councillor, on which she now

relies, is not decisive in these proceedings, because,

currently, the factual requirements for the period December

2021 up to and including the end of 2023 are relevant,

whereas the appellant, according to her own position in the

case, was only elected to become an office-holding

councillor at the inaugural session of the town council of

Hohenems on 29 March 2025 and in this role is expected to

receive a so-called functional allowance ofEUR 32 355. 82

annually (document number 16).

In sum, this gives rise to the first question to be

addressed to the EFTA Court.

The Princely Court of Appeal is prima facie correct

that, under Regulations No 883/2004 and No 987/2009

decisive here, the uncontested fact that the appellant has

been in receipt of an old-age pension in Austria since 1

March 2022 does not appear to be of relevance. Nor is it

relevant, contrary to the appellant's position, with regard

to the contested period of December 2021 and the years

2022 and 2023, that she has been entitled, according to her

29 SV.2024.36

claims, to a pension from the pension fund of the

Vorarlberg Bar Association since August 2024. However,

according to her own position, also to this extent not

contested in detail, the appellant became entitled to an old-

age pension in Austria at the age of 60, that is to say, from

18 July 2021.

Pursuant to Article 34(2)(b) of the Old-Age and

Survivors' Insurance Act ("I. Compulsorily insured

persons"), persons who are affiliated to a foreign public

old-age and survivors' insurance are not insured if

inclusion in the insurance would entail an unreasonable

dual burden for them. Upon a reasoned request, these shall

be exempted from the compulsory insurance by the fund.

The application of this provision results in a case

such as the appellant's in a certain tension with the

provision set out in Article 34(l)(b) of the Old-Age and

Survivors' Insurance Act, according to which, natural

persons such as the appellant who pursue an economic

activity in Liechtenstein are insured in accordance with that

act, which, by definition entails corresponding compulsory

contributions.

In this connection, the appellant relies on recitals

1, 5, 10, 12, 15 and 17 of Regulation No 883/2004. It

follows in particular from recital 15 that it is necessary to

subject persons moving within the Community to the social

security scheme of only one single Member State in order

to avoid overlapping of the applicable provisions of

national legislation and the complications which could

result therefrom. In that regard, according to recital 12,

care should be taken to ensure that the principle of

30 SV.2024.36

assimilation of facts or events does not lead to objectively

unjustified results or to the overlapping of benefits of the

same kind for the same period. Having regard to the ruling

of the ECJ in Case C-33/22, paragraph 59 (Osterreichische

Datenschutzbehorde), according to which a regulation is

binding in its entirety, these principles appear important for

the present case.

In this connection, the notion of the appellant

becomes relevant, that for most of the relevant period she

has already been in receipt of an old-age pension in Austria,

which within the meaning of the principles of the recitals

mentioned could conflict with the fact that the appellant

should nevertheless pay corresponding social insurance

contributions in Liechtenstein. Persons who are in receipt

of an old-age pension in Liechtenstein pursuant to Article

55 of the Old-Age and Survivors' Insurance Act or take

such early pursuant to Article 73 of the Old-Age and

Survivors' Insurance Act are, accordingly, no longer

obliged to pay contributions in this connection. If one takes

account of the fact that, in accordance with the principles

of Regulation No 883/2004, insured persons should be

treated as if all the facts relevant in this connection have

occurred in one Member State, this could be interpreted to

mean that the fact that the appellant is already in receipt of

an old-age pension in Austria exempts her from the

obligation to pay contributions in Liechtenstein. Finally -

as mentioned - it should be avoided that as a result of the

principle of applying only one system of law insured

persons are placed at a disadvantage.

31 SV.2024.36

This results in the second question directed to the

EFTA Court.

6. The pending appeal on a point of law had to be

stayed, applying by analogy Section 190 of the Code of

Civil Procedure. Following receipt of the advisory opinion

from the EFTA Court, proceedings will be continued of the

court's own motion.

7. The costs of the proceedings in the appeal on a

point of law and in the advisory opinion procedure shall be

determined in the final national decision.

Princely Supreme Court,

First Senate

Vaduz, 7 November 2025

The President

University Professor (retired) Dr Hubertus Schumacher

A<; fsi. ^^ V:;

The accuracy of this copy is confirmed by

Astrid Wanger

1, rue du Fort Thüngen, L-1499 Luxembourg. Telephone: +352 42 108-1.

E-mail: [email protected]

Case E-26/25-3

Luxembourg, 6 January 2026

Sent via e-EFTACourt

Dear Sir/Madam,

Please find enclosed, a copy of the application, together with the translation into

English, from the Princely Supreme Court (Fürstlicher Oberster Gerichtshof), dated 7

November 2025, in the case Sabine Mohr-Egger v Liechtensteinische Alters- und

Hinterlassenenversicherung, Liechtensteinische Invalidenversicherung und Liechten-

steinische Familienausgleichskasse (Liechtenstein Old-Age and Survivors’ Insurance,

Liechtenstein Invalidity Insurance and Liechtenstein Family Allowances Office),

requesting the EFTA Court to give an advisory opinion pursuant to Article 34 of the

Agreement between the EFTA States on the Establishment of a Surveillance Authority

and a Court of Justice. The request was lodged on 18 November 2025 and entered in

the register of the EFTA Court (reg. No E-26/25-1) as Case No E-26/25.

In accordance with Article 20 of the Statute and Article 90(1) of the Rules of Procedure

of the EFTA Court, the Governments of the EFTA States, the EFTA Surveillance

Authority, the Union (which includes the Governments of the EU States), the European

Commission and the parties to the dispute are entitled to submit to the Court written

observations on the questions referred for an advisory opinion. Written observations

must be lodged at the Court within two months from the date of this notification, i.e., at

the latest by Friday, 6 March 2026.

Please be informed that the Court has decided that all written observations, lodged in

Advisory Opinion cases registered at the Court, will be published on the Court's website

before the oral hearing takes place.

Should you believe that observations you intend to submit include confidential or

sensitive information, the Court invites you to submit a non-confidential version

alongside your observations. In those cases, only the non-confidential version will be

published. Moreover, should you believe that the written observations are,

exceptionally, only to be published after the judgment of the Court has been delivered,

you are invited to submit a reasoned request setting out the reasons thereto.

On behalf of the Registrar.

Yours faithfully,

Bryndís Pálmarsdóttir

Senior Administrator

Encl.