The Administrative Commission recommendation concerning the issuance of Portable Documents A1 will enter into force on 18 June 2018.
The Administrative Commission determines the structure and the content of the Portable Document A1 concerning the applicable legislation which applies to the holder.
The recommendation (non-binding act), contains guidance in view of ensuring a greater scrutiny on the issuance of Portable Documents A1, with the aim to:
- prevent falsification
- grant easy authentication
- grant collection of sufficient information to ascertain the applicant’s eligibility
- ensure a better exchange of information between the competent institutions
Applicants might be required to respond a set of questions, certain specific to the different relevant articles of the Basic Regulation. The list of questions is standardised but may be adapted considering the specific case. The competent institution may retrieve data from official sources as well.
To read beyond the questions, a reasonable understanding of the legal ground is required (the concept of “posted worker” in the meaning given within the Directive 96/71/EC, the coordination regulations, the decisions of the Administrative Commission on applicable legislation, the practical guidance provided by the European Commission and last but not least, the relevant ECJ case-law).
The application form will contain a disclaimer by which “the applicant declares that he/she has answered all questions correctly to the best of his/her knowledge and that he/she is aware of the possibility of checks with the consequence that the document can be withdrawn retroactively”.
It must be recalled that a disclaimer represents” the repudiation or renunciation of a right or claim vested in a person which he had formerly alleged to be his”(Black's Law Dictionary).
The competent institution may:
- after assessing all the relevant facts, considering inter alia the information provided by the applicant, refuse to issue the PDA1 (alternatively, determine that the legislation applicable is not the one which was requested).
- perform later checks and withdraw the document retroactively.
Where PDA1 were fraudulently obtained or relied on, a national court of the host Member State, may, in particular circumstances, “in the context of proceedings brought against persons suspected of having used posted workers ostensibly covered by such documents”, disregard those documents (see ECJ ruling in Altun u.a., C-359/16).
Filling in an application for the Portable Document A1, must represent a responsible action to achieve a legitimate purpose.