Binding effect of portable documents A1-a last judicial round?

The Opinion delivered by Advocate General SAUGMANDSGAARD ØE on 11 July 2019, in Vueling Airlines SA (joint cases C-370/17 and C-37/18 ECLI:EU: C: 2019:592) merits attention beyond the cases in the main proceedings.

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The Opinion delivered by Advocate General SAUGMANDSGAARD ØE on 11 July 2019, in Vueling Airlines SA (joint cases C-370/17 and C-37/18 ECLI:EU: C: 2019:592) merits attention beyond the cases in the main proceedings.

Underlining the overriding value of the principle of prohibition of fraud expressed by the ECJ’ case law, the AG:

  • Brings an expected view on the reach of the ruling in Altun (C-359/16 ECLI:EU:C: 2018:63)
  • Reiterates his Opinion in Altun, following which, situations of fraud can give rise to social security subjection (payment) in two Member States.
  • Emphasises the relevance of the concept of fraud exclusively in the sense of the EU law.

In regard to the ruling in Altun, the AG suggests that the criteria related to the dialogue between the competent institutions (i.e.” the institution of a Member State to which workers have been posted makes an application to the institution that issued E 101 certificates for the review and withdrawal of those certificates in the light of evidence, collected in the course of a judicial investigation, which supports the conclusion that those certificates were fraudulently obtained or relied on, and the issuing institution fails to take that evidence into consideration for the purpose of reviewing the grounds for the issue of those certificates”) should not be considered a prerequisite to disregard portable documents A1 fraudulently obtained or relied on. The AG takes the view that the ECJ has addressed the dialogue as the case at issue, more ever, as a matter of principle, the judicial proceedings and the dialogue between the competent institutions can go “hand in hand”.

Practically, in Vueling, the AG only reiterates his Opinion delivered in Altun: a court of the host Member State may disapply an E 101 certificate issued by the institution designated by the competent Member State, where that court finds that that certificate was obtained or invoked fraudulently.

It is hard to allege that in Altun the ECJ (Grand Chambre) intended to leave open the door for such an interpretation. On the contrary, the ruling contains a set of cumulative criteria that depart from the widely valid conclusion suggested by AG SAUGMANDSGAARD ØE.

Reading in conjunction the suggested interpretation of the ruling in Altun, with the reference to the concept of fraud (must be addressed exclusively in the sense of the EU law, and not in the sense of national legislations), the Opinion might bring a response to  the significant political pressure exercised (mainly) by France. Such a response should inter alia reduce the judicial pressure exercised by the latter country.  

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, brings an original interpretation of the same ruling. Such a codification should result in a faster disqualification of a portable document A1(previous E101 certificate),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.

In Vueling, the AG follows the French position, however, reiterates that doubts are not sufficient to disregard a E 101 certificate. “The fraud must be established in the context of adversarial proceedings with legal guarantees for the person concerned and in compliance with their fundamental rights” (Press Release No 114/17 of 9 November 2017 on AG’s Opinion in Altun).

By its reference for preliminary ruling in Bouygues travaux publics, Elco construct Bucarest (C-17/19), the French 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 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 under the EU law.

Were the concept of fraud under EU law cannot be invoked by a national court, the same objective can be eventually attained, by enforcing the same concept under national law.

In Vueling, the AG plead for the enforcement of a unique concept of fraud, strictly defined by the EU law.

Lastly, the ECJ is expected to bring clarity in regard to the possible subjection to the social security in two Member States in cases of established fraud.





Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides in-depth advice on rights and obligations triggered by the cross-border element of a given legal situation. Our know-how is built on an extensive experience in EU law and is supported by a network of partners across the EU. Social security coordination : • Autonomous application of the social security coordination regulations and ECJ case-law, to any situation involves a cross-border element EU Company law : • Establishment -permanent activities • Establishment -self-employment activities International Private Law : • Law applicable to the employment relationship Labour and employment law : • Freedom of movement of workers-equal treatment, access to social benefits • Employment contracts and termination of employment • Working conditions • Employee benefits • Transfer of undertakings • Authorisations of work for third-country nationals Special regimes : • Posted workers • Frontier workers • Highly mobile workers • Employment of record • Intra-EU mobility of third-country nationals

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