Before the expected amendment of the social security coordination regulations, the controversial issuance of portable documents A1, merits a survey across ‘EU still 28’.
EU Law and European Court of Justice case law
The ECJ has ruled that when issuing a portable document A1, the competent institution merely states that the worker concerned remains subject to the legislation of the Member State to which that institution belongs, throughout a given period.
Pursuant to Article 15.1 Regulation 987/2009 , interpreted by point 6 of the Commission Decision No 181 of 13 December 2000 and settled ECJ case law , portable documents A1 “should preferably be issued before the beginning of the period concerned; it may, however, be issued during this period or even after it has expired, in which case it may have retroactive effect” (see inter alia Banks and Others C 178/97, Format Urządzenia/Montaże Przemysłowe C 115/11, Alpenrind GmbH and Others C-527/16).
The issuance of a PDA1 at the request of the person concerned or the employer, rules out the existence of a difference of views between the institutions or authorities of two or more Member States in the sense of Article 6(1)(a) of Regulation 987/2009 (see inter alia Commission v Kingdom of Belgium C-356/15).
Where the Member State to which the workers are posted, brings concrete evidence that PDA1 were obtained fraudulently, pursuant to Article 76(6) of Regulation 883/2004, by virtue of the principle of sincere cooperation, it is the duty of the Member State that issued the certificates, to review the grounds for the issue of those certificates and, where appropriate, to withdraw it. The dialogue provided for in Article 76(6) of Regulation 883/2004 must comply with Article 5.2 to 5.4 Regulation 987/2009 (see inter alia Commission v Kingdom of Belgium C-356/15).
Where the Member State that issued the certificate fails to fulfil its obligations, the host Member State may rely on the appropriate remedies provided for by Article 258 and 259 TFEU (see inter alia Commission v Kingdom of Belgium C-356/15).
In Ömer Altun and Others C-359/16, the ECJ has underlined the overriding value of the principle of prohibition of fraud and abuse of right. The ECJ clarified the conditions under which a national court may disregard portable documents A1 fraudulently obtained or relied on : a) evidence collected in the course of a judicial investigation, supports the fact that PDA1 were fraudulently obtained or relied on b) the competent institution in the receiving Member State makes an application for review and withdrawal of the PDA1 issued, to the competent institution that issued such documents c) the latter institution fails to take that evidence into consideration for the purpose of reviewing the grounds for the issue of the PDA1 in question d) proceedings brought against persons suspected of having used posted workers ostensibly covered by such certificates e) the court confirms the existence of a fraud f) right to fair trial granted to the persons suspected.
It must be noted that the request for preliminary ruling submitted by the Belgian Cour de Cassation to the ECJ, brings into question the right to annul or to disregard E 101 certificates (currently, portable documents A1). The ECJ has retained only the right to disregard.
The French position
By its ruling of 6 November 2015, the French Cour de Cassation held that the PDA1 represents the only material evidence of a posting. The Cour de Cassation rules out the fact that the existence of a PDA1, does not represent a constitutive element of a posting. Its (non) existence overrides the constitutive elements of a posting, with simple words, a genuine posting not covered by a PDA1 is deemed to be concealed employment.
The application of Article 16 Regulation 883/2004 in case of certain” retrospective postings”, amplifies the effects of the Cour de Cassation’ ruling.
Obviously, were a PDA1 is issued, a national court may enforce the ruling in Altun and Others.
By its reference for preliminary ruling in Bouygues travaux publics, Elco construct Bucarest C-17/19, the Cour de Cassation seeks to know whether in a situation in which the constitutive conditions of the posting are presumably not met, but however, the ruling in Altun and Others cannot be enforced, a portable document A1 binds the courts of the receiving Member State, not only as regards the social security system, but also as regards labour law.
Assessing the case in the main proceedings, it appears that the determination of presumable unlawful postings is grounded on the complex interoperability between the social security coordination regulations and the Posting of Workers Directive, in particular in situations in which portable documents A1 are issued under Article 13 Regulation 883/2004 (multi-state activity , persons employed by an undertaking located in one Member State). In any circumstances, certain arguments brought by the Court of Appeal in view of finding such postings unlawful, are irrelevant even under Article 12 Regulation 883/2004 (e.g. employees hired in view of being posted).
In any circumstances , the Cour de Cassation essentially ask whether employers can be convicted and fined for failure to send declarations of employment in France, as regards employees for which portable documents A1 have been issued by the competent institution in the sending Member State, where such documents cannot be challenged by a court in the receiving Member State.
Lastly, in its political opinion of 7 March 2019 on the proposal amendment of the social security coordination regulations, the French Senate, pleading for the codification of the ruling in Altun and Others, brings an original interpretation of the same ruling. Such a codification should result in a faster disqualification of a portable document A1, as soon as there are serious doubts as to whether the employed person is genuinely subjected to the social security system in the country of employment. It is hard to identify a codification of the ruling in Altun and Others.