In TE (C-422/22), the Supreme Court of Poland referred to the ECJ a request for a preliminary ruling seeks to ascertain whether the institution of a Member State which has issued an A1 certificate, and which without a request from the competent institution of another Member State concerned, intends to withdraw, or invalidate that certificate, “is obliged to make arrangements with the competent institution of another Member State in accordance with rules analogous to those set out in Articles 6 and 16 of Regulation (EC) No 987/2009.”
Provided that such arrangements are mandatory:
- are they to be made before the withdrawal or invalidation of the A1 certificate, or
- the withdrawal or invalidation are provisional in nature and will become final only if the otherMember State institution concerned does not raise any objection or present a different view.
In DRV Intertrans BV (C-410/21), the Belgian Court of Cassation aims to clarify the value of the provisional retroactive withdrawal of A1 certificates, in the light of Article 5 Regulation 987/2009, and related ECJ case-law.
Further an application made by the Belgian competent authority, the Slovak competent authority decided to provisionally withdraw A1 certificates fraudulently obtained.
The final decision (i.e., on the withdrawal), is pending the outcome of the judicial procedure initiated in Belgium, and the assessment and interpretation of such outcome by the Slovak competent authority.
The A1 certificates were provisionally withdrawn in view of facilitating the judicial proceedings (“no longer have binding force”), however, the employees concerned remain subject to the social security system in Slovakia.
Practically, the Slovak competent authority intended to create a situation in which the “presumption attached to the A1 certificates that the workers concerned are properly affiliated to the social security system of that issuing Member State ceases to apply, and those A1 certificates are no longer binding on the authorities of the Member State of employment.”
The Belgian Court of Cassation wonders is such a presumption stems from the interpretation must be given to Article 5 Regulation 987/2009, or alternatively, if “the authorities of the Member State of employment may, in the light of the case-law of the Court of Justice of the European Union, disregard the A1 certificates at issue on the grounds of fraud.”
In both cases, the ECJ is called upon to interpret the concept of “provisional withdrawal” of an A1 certificate.
Both cases are concerned with A1 certificates issued in application of Article 13 Regulation 883/2004 (multi state activity).
In the first case, the provisional withdrawal would eventually arise from the obligation to make arrangements with the competent institution of another Member State concerned by the decision to withdraw or invalidate an A1 certificate.
In the second case, the provisional withdrawal arises from the choice made by the institution which has issued an A1 certificate.
In accordance with Article 5 Regulation 987/2009, (only) the Member State in which an A1 certificate was issued, may withdraw, or invalidate such certificate (i.e., administrative decision made by the competent institution, may be appealed pursuant to the law of that Member State).
Regardless of an eventual application made by another Member State concerned, the decision to withdraw or invalidate may arise from findings that declarations made by the applicant for the purposes of issuing an A1 certificate were inconsistent with related facts or, the circumstances based on which an A1 certificate was issued have changed.
Certain arrangements with the competent institution of “another Member State concerned” must be made.
However, even supposing that a “own decision” to withdraw or invalidate an A1 certificate, made by the institution of the Member State in which such certificate was issued, falls under the scope of Articles 6 and 16 Regulation 987/2009 (because it implies a new determination of the applicable legislation), any other form of provisional withdrawal should be precluded.
A provisional withdrawal “in the meaning of” DRV Intertrans BV, would deprive the ECJ ruling in Ömer Altun and Others (C-359/16) of its effectiveness (beyond the poor effectiveness of the ruling per se).