The French Centre of European and International Liaisons for Social Security (CLEISS) makes available on its website, information on the coordination of social security systems, in the light of Regulation 883/2004 and its implementing Regulation 983/2009.

In regard to the exemptions provided for by Article 16 Regulation 883/2004, the following interpretation is addressed:

“The exceptional agreements in Article 16 are used to:

the regularisation of certain situations (delays in the completion of posting procedures)”

In context, the official form “Salaried Worker-Request for application of Article 16 of Regulation 883/2004”, entails a box to be filled in “in the event the request is introduced late”. The reason for the late filling must be addressed and whether “the worker has benefited from social benefits in France”.

Question to debate 

Is such an interpretation compatible with the EU law?

Analysis

On 6 November 2015, the French Cour de Cassation has ruled that the portable document A1 represents the only documentary evidence related to the posting. It can be thus alleged that the situation addressed is the “late application” for the portable document A1.

1 Application for the portable document A1 during of after the period concerned but before the receiving Member State has formally determined the subjection to its legislation.

It must be first observed that Article 16 Regulation 883/2004, provides for exemptions to Articles 11 to 15 the said Regulation. Articles 11 to 15 do not provide for the delay the employer shall inform the competent institution of the Member State whose legislation is applicable. Pursuant to Article 15.1 Regulation 987/2009, such information must be communicated “whenever possible in advance”.

Pursuant to the point 6 of the Commission Decision No 181 of 13 December 2000, the form E 101(currently portable document 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”

It follows from the European Court of Justice’s case law that although the competent authority should be preferably informed before the beginning of the period concerned, it may also be informed during that period or after its expiry (see inter alia Banks and Others C‑178/97, Format Urządzenia/Montaże Przemysłowe C‑115/11, and the recent Opinion delivered by AG Saugmandsgaard Øe in C-527/16).

Lastly, where the application of Article 16 Regulation 883/2004 implies common agreement of two or more MS, the competent authorities of these MS or the bodies designated by these authorities, neither the Commission Decision No 181 of 13 December 2000 and nor the ECJ’s case-law, suggest that the issuance of a portable document A1 during or after the relevant period has expired, is conditioned by such agreement.

Article 15.1 Regulation 987/2009 contains the rule and its exemption.

Having regard to the above considerations, we take the view that Article 16 Regulation 883/2004, cannot be triggered in order to subordinate the exemption provided for by Article 15.1 Regulation 987/2009, to the receiving MS’s consent.

2 Application for the portable document A1 during or after the period concerned and after the receiving Member State has formally determined the subjection to its legislation.

Where pursuant to Article 11.3(a) Regulation 883/2004, the receiving MS has formally determined the subjection to its legislation, an application for the portable document A1 on grounds of Article 12 the said Regulation, can be prima facie subordinated to the application of Article 16.

With simple words, before issuing the portable document A1, the competent authority of the sending MS, must consult the competent authority in France and find out whether the latter is willing not to levy social security contributions presumably due.

The first question is whether Article 4(3) TFEU (the duty of sincere cooperation), determines any obligation to consult the receiving MS before issuing the portable document A1, provided that the latter has formally established the subjection to its legislation.

Another question is whether there is a right to consult under the EU law. In short whether the Commission Decision No 181 of 13 December 2000 and the ECJ’s case-law, do not preclude the receiving MS from imposing such a prior consultation, eventually qualified as common agreement under Article 16 Regulation 883/2004.

The ECJ has ruled that when issuing the portable document A1, the competent institution merely states that the worker concerned remains subject to the legislation of the MS to which that institution belongs, throughout a given period.

In C-527/16, the Advocate General underlines the difference between a portable document A1 issued at the request of the person concerned or the employer, and a decision based on the authority’s initiative, establishing that a person is subject to the social security of a MS. The AG observes that were according to Article 19(2) Regulation No 987/2009, the competent institution of the MS whose legislation is applicable shall provide the portable document A1, at the request of the person concerned or the employer, a decision establishing that a person is subject to the social security of a MS is not issued at the request of the person concerned or the employer, but rather at the initiative of the authorities concerned.

In the same context, the AG considers that an interpretation to the effect that a decision establishing that a person is subject to the social security system of a MS, may be classified as a ‘document’  in the sense of  Article 5(1) Regulation No 987/2009, would be liable to produce inappropriate, or arbitrary results : “such an approach might give rise to a race against the clock between the authorities of the Member States, with each seeking to be first to issue a decision making the persons concerned subject to its own social security system, which might well undermine the legal certainty of the person concerned. In such a situation, the Member States would have a financial interest in being first”.

Such a consideration should apply mutatis mutandis to the extent that the receiving MS imposes a prior consultation if an application for a portable document A1 has been lodged after having determined the subjection to its legislation, or where two MS agree on such a prior consultation.

The concept of “common agreement” in the sense of Article 16 Regulation 883/2004, should operate “in the interest of certain persons or categories of persons” and not to serve MS’s financial interest.

Conclusion

Without prejudice to the overriding value of the principle of prohibition of fraud and abuse of right (in the sense of the ruling in Criminal proceedings against Ömer Altun and Others- C-359/16):

• The determination of the applicable legislation, triggers the right to have issued the documentary evidence, should not be affected by the moment when such evidence is (will be) issued. Circumventing arrangements, depriving a person of the right to obtain at any moment the portable document A1, should be banned.
• Notwithstanding the legislation applicable, failure to comply with the rules imposing an obligation to keep or make available and/or retain certain documents, triggers liability under the Member States’ national legislation transposing the EU law. Such measures “do not exceed the limits of what is appropriate in order to attain the objectives legitimately pursued by the legislation in question” [C-331/88 FEDESA (1990)].

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