On 6 February 2018, the CJEU pronounced a judgment, related to a Belgian case, on the right for a receiving country to re-classify an A1 form for foreign posted workers, if social fraud is suspected. This means, in this particular case, that a Belgian court may refuse to apply the social security certificate of posted workers from Bulgaria if there is evidence to suggest that the information in the A1 form is incorrect, and that the authorities of the sending states do not provide adequate information.
A Belgian construction company was sentenced by the Antwerp Court of Appeal for subcontracting work to Bulgarian companies whose workers, sent to Belgium as posted workers, were covered by fraudulent social security certificates. An investigation conducted by the Belgian courts revealed that the Bulgarian companies did not carry out any significant activity in Bulgaria, and the Bulgarian official authorities responsible for issuing social security certificates had not provided a satisfactory answer to Belgian concerns.
The Belgian Court asked the CJEU if it was possible, therefore, to dismiss such a certificate when the facts submitted to their assessment enabled them to find that the certificate was fraudulently issued.
The CJEU recalled in its ruling that there is a principle of loyal cooperation in the European Union, which also implies mutual trust: the issuing authorities undertake to make a correct assessment of the relevant facts and to guarantee the accuracy of the entries in the certificate, and in exchange, the destination authority respects the presumption of regularity that arises therefrom.
However, according to the Court, the Bulgarian authorities failed to respond in an adequate manner to the Belgian doubts, which allows the Belgian court to dismiss the fraudulent certificates. "It also has to determine whether persons suspected of having used posted workers under the guise of fraudulently obtained certificates are to be held liable on the basis of the applicable national law," the Court concluded.
Harald Wiedenhofer, EFFAT Secretary General said: ‘Invalid posting is not a good option for workers. That’s why we welcome this ruling as an important result. Evading the conditions laid down in EU legislation in respect of the posting of workers must be made impossible. Combating fraud and abuse is a priority also in light of mutual trust and loyal cooperation among EU member states’
Details of the case:
Judgment of the Court (Grand Chamber) of 6 February 2018
Criminal proceedings against Ömer Altun and Others
Request for a preliminary ruling from the Hof van Cassatie
Reference for a preliminary ruling — Migrant workers — Social security — Applicable legislation — Regulation (EEC) No 1408/71 — Article 14(1)(a) — Posted workers — Regulation (EEC) No 574/72 — Article 11(1)(a) — E 101 certificate — Probative value — Certificate fraudulently obtained or relied on Case C-359/16
Link to the judgement (in different languages)