Loyens & Loeff

Important decision of the ECJ concerning seconded employees: ability to revoke the E101/ A1 certificate issued by another member state

On the 6th of February 2018 the European Court of Justice (ECJ) delivered an important judgement concerning the social security-certificate E101/A1. Certificates issued by another Member State can be disregarded if they were fraudulently obtained and the competent authority doesn’t review or withdraw the certificate in the light of these (new) circumstances. This judgement will most definitely have an impact on the legal certainty of these certificates.

It was the Belgian Supreme court who demanded a preliminary ruling upon the E 101-certificates as issued under article 11.1 Regulation no 574/72 in a criminal case between the Belgian Social Security and a Bulgarian construction company-network. More precisely if it would be possible for courts from another Member State than the sending Member State to annul or disregard the certificate if afterwards it has been ascertained that the certificate was obtained fraudulently or based on false assumptions or facts.

A Belgian judicial investigation conducted in Bulgaria established that those Bulgarian undertakings carried out no significant activity in Bulgaria, although an E101/A1 –certificate was issued in Bulgaria. In order to revoke this certificate the Belgian authorities contacted the competent Bulgarian institution. This institution stated that the conditions of posting were, at the time those certificates were issued, met for administrative purposes by the various Bulgarian undertakings in question. The new facts weren’t taken into account and the certificate wasn’t revoked.

The ECJ stated that in these specific circumstances:

  1. Certificates were clearly obtained fraudulently by means of a representation of facts which did not reflect the reality of the situation, with the intention of evading the conditions laid down in EU legislation in respect of the posting of workers. The national court has to investigate the existence of such fraud on the basis of that evidence and with due regard to the safeguards inherent in the right to a fair trial which must be granted to those persons:
  2. The competent Bulgarian institution, when called upon to review and withdraw the certificates at issue in the main proceedings, in the light of the results of the investigation of the Belgian Inspection, failed to take those results into consideration for the purpose of reviewing the grounds for the issue of those certificates;

The national court of the Member State, to which the workers are posted, may disregard the E 101/A1 certificates and must determine in a fair trial whether the persons suspected of having used posted workers ostensibly covered by certificates obtained fraudulently, may be held liable under the applicable national law.
Even though this decision of the ECJ is only applicable when fraud (objectively and subjectively) is proved, the risk remains in the interpretation of the national courts of the existence of fraud.