On March 2nd the ECJ ruled on two fraudulent posting of workers’ cases, both referred by the Belgian Court of Cassation.
In DRV Intertrans BV (C-410/21), by its first question, the Belgian Court of Cassation aimed to clarify the value of provisional retroactive withdrawal of A1 certificates.
Further an application made by the Belgian competent institution, the Slovak competent institution decided to provisionally withdraw A1 certificates fraudulently obtained.
The final decision (i.e., on the withdrawal), was pending the outcome of the judicial procedure initiated in Belgium, and the assessment and interpretation of such outcome by the Slovak competent institution.
Allegedly, the A1 certificates were provisionally withdrawn in view of facilitating the judicial proceedings (no longer have binding force), however, the employees concerned remained subject to the social security system in Slovakia.
The Slovak competent institution 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 (instead of merely withdrawing the certificates).
The first question referred by the Belgian Court of Cassation is whether 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.
The ECJ observes that the Slovak issuing institution intended, ultimately, to suspend the legal effects of those certificates for a specified period.
To support its reasoning, the ECJ uphold settled case-law on:
- the binding value of A1 certificates- may be withdrawn or declared invalid exclusively by the Member State in which they were issued, (the ECJ underlines that the decision of the issuing institution provisionally to suspend an A1 certificate does not entail the loss of its binding effects- decision that is not equivalent to a declaration of invalidity, the latter being also in the nature of a definitive act equivalent to a cancellation)
- the mandatory procedure of dialogue and reconciliation between institutions that must be followed when a request for the withdrawal of an A1 certificate is made by the institution of another Member State
- the principles of the application of the legislation of a single Member State, of sincere cooperation and of legal certainty
and concludes that an A1 certificate provisionally withdrawn by a decision of the issuing institution, does not cease to have binding effects during that period of provisional suspension.
Moreover, provisional withdrawal of an A1 certificate constitutes a failure to correctly apply the detailed rules of the dialogue and reconciliation procedure, and consequently grounds to enforce the ECJ ruling in Altun and Others (C‑359/16): the court or tribunal of the host Member State seised of an action in the context of legal proceedings brought against an employer for acts that may indicate that A1 certificates were fraudulently obtained or used may give a definitive ruling on the existence of such a fraud and disregard those certificates.
Provisional withdrawal is not equivalent to a decision adopted within a reasonable time, on the evidence submitted to the competent institution that issued the A1 certificate by the competent institution of the host Member State, cancelling or withdrawing the certificate, as appropriate.
The ECJ recalls that the persons who are alleged, in judicial proceedings, to have used posted workers ostensibly covered by fraudulently obtained certificates, must be given the opportunity to rebut the evidence on which those proceedings are based.
The second question referred to the ECJ in DRV Intertrans BV (C-410/21), and the first question in Verbraeken J. en Zonen BV(C-661/21), is whether a Community licence for road transport issued by the competent authorities of a Member State, constitutes irrefutable evidence of that company’s registered office in that Member State for the purpose of determining the applicable social security legislation, in accordance with Article 13(1)(b)(i) Regulation 883/2004.
The case is about factual employment by a Belgian company, of drivers have concluded employment contracts with a Lithuanian letter box company, the latter in possession of a Community transport authorisation as required under Regulations 1071/2009 and 1072/2009. The drivers were covered (for a certain period) by A1 Certificates issued by the competent authority of Lithuania.
In accordance with Article 4(1) Regulation 1072/2009, the issue of a Community licence for road transport to an undertaking is subject, inter alia, to the requirement of having an effective and stable establishment, within the meaning of Article 3(1)(a) Regulation 1071/2009, in the Member State which issued the licence.
The ECJ observes that the criteria for determining the place of establishment of a transport undertaking for the purposes of obtaining a Community licence for road transport (within the meaning of Article 3(1)(a) Regulation 1071/2009, as laid down by Article 5 of that regulation), are different from those used to determine the place of establishment of that undertaking for the purposes of Article 13(1)(b)(i) Regulation 883/2004 (criteria laid down by Article 14(5a) Regulation 987/2009).
It follows that the existence of a Community licence for road transport may be a criterion to be taken into consideration when determining an undertaking’ registered office or place of business in the meaning of Article 13(1)(b)(i) Regulation 883/2004, but cannot automatically constitute proof of this, nor, a fortiori, irrefutable proof, nor can it be binding upon the authorities of the Member State in which the work is carried out.
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