Portable Documents A1-How long is a “reasonable time”?

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Two references for a preliminary ruling have been made by the tribunal de grande instance de Bobigny (France), and by the French Cour de Cassation, both concerning claims for loss sustained by CRPN (the retirement fund for civil aviation flying personnel),and respectively by Mr. Jean‑Luc Poignant (formerly employed by Vueling),as a result of employment of flying personnel by Vueling Airlines in France, without having affiliated them to the French social security.

Employees were declared under the posting scheme, and E101 certificates were issued by the competent authority in Spain.

The E101 certificates were disregarded by the Court of Appeal (Paris), because allegedly it should have been issued for multi-state activity, and consequently, the employees should have been subjected to the French social security system.

Vueling was convicted for concealed employment, and the Cour de Cassation dismissed its appeal.

The binding effect of the E101 certificates issued by the competent authority of Spain, was brought (again) into question, in the context of claims for loss.

The ECJ was called upon to clarify whether:

1 E101 certificates fraudulently obtained or relied on, can be disregarded by a national court (?)

Considering the ruling in Altun and Others (C‑359/16, 6 February 2018, EU:C:2018:63), and the Opinion of AG SAUGMANDSGAARD ØE in the case at issue (C‑370/17 and C‑37/18, 11 July 2019, ECLI:EU:C:2019:592), the question is practically whether such certificates can be disregarded, regardless the dialogue between the competent institutions (provided for by the social security coordination regulations).

The ECJ reiterates its ruling in Altun and Others, emphasising the importance of the dialogue between the competent institutions:

  • the dialogue procedure must be initiated
  • the competent institution of the issuing MS must be provided with evidence that E101 certificates were fraudulently obtained or relied on
  • the competent institution of the issuing MS must be given a reasonable time to a) review b) make a decision to cancel or withdraw those certificates (where appropriate)

As regards the concept of “reasonable time”, apparently, “more than two years” (as the case at issue), cannot be regarded as a reasonable time, and that considering inter alia a) the importance for the parties concerned b) the nature of the issues to be examined.

2 The principle of res judicata can be disapplied by a national administrative court, when is established that the criminal court decision is in breach of EU law (?)

The ECJ underlines first that as a matter of principle, EU law does not require a national court to disapply the principle of the authority of res judicata, “even if to do so would make it possible to remedy a domestic situation which is incompatible with EU law”. However, the procedural autonomy given to Member States, must result in rules which are compatible with the principles of equivalence and effectiveness.

Assessing the case at issue and recalling settled case-law (judgment of 3 September 2009, Fallimento Olimpiclub, C‑2/08, EU:C:2009:506),the ECJ observes that in the case at issue, not disapplying the principle of the authority of res judicata, would be contrary to the principle of effectiveness. 

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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