The Court of Justice of the European Union Reconfirms the Possibility to Disregard A1 Forms for Posted Workers

The COVID-19 pandemic is receiving the full attention of all government authorities worldwide, and companies and employees have been forced to change existing work patterns or work locations (e.g., by introducing extensive measures of smart or remote working), which is also impacting the social security compliance.

As is widely known, certificates of social security coverage (like A1 forms in Europe) have acquired more importance recently, especially in Europe. This is due to the increased (short term) mobility, on the one hand, and the wish of many countries to monitor the immigration, employment and social security compliance for workers temporarily employed in an EU country, on the other.

In principle, a worker is subject to the social security legislation of the country of employment, unless he/she has a valid A1 certificate indicating the applicable legislation: for example, in case of a business traveller, a temporary “posting” or work activities in two or more countries at the same time. The recent enforcement measures for posted workers, as well as the new forms of EU-wide immigration permits, progressively show the need for workers to hold a valid A1 form.

In that context, the Court of Justice of the European Union (hereafter “CJEU” or “the Court”) has pronounced its judgment in the joined cases C‑370/17 and C‑37/18, better known as the Vueling-cases, and taken the opportunity to further elaborate on the binding nature of the certificate of coverage and on the conditions that need to be fulfilled before an A1 form can be disregarded by the host country.

 

Background

According to consolidated case-law of the CJEU, a certificate of social security coverage should be considered binding, as long as the certificate has not been withdrawn or declared invalid by the authorities of the issuing Member State (see e.g. case C‑620/15).

However, as a response to the above-mentioned need for countries to monitor compliance for workers in short-term mobility and to fight “social dumping,” the Court ruled in 2018 that national courts of the host country have the ability to disregard an A1 certificate, in the event it was issued fraudulently and the home country is not willing to withdraw it (see case C-359/16 commented in one of our previous blog posts here).

 

The Vueling-judgement

With the judgment of 2 April 2020, the CJEU has fine-tuned its position, clarifying that the existence of evidence of fraud cannot be sufficient for the courts of the host country to put aside an A1 certificate.

Based on the principles of sincere cooperation and mutual trust between EU Member States, the competent authority of the host country must first promptly engage in a dialogue and collaborate closely with the issuing authority in the home country, allowing the latter to review the facts and make a decision to withdraw or cancel the certificate within a reasonable timeframe.

In other words, the Court has underlined that the specific reconciliation procedure between the competent authorities of home and host country, laid down in the EU social security regulations, must always be followed. Only if that has happened, can a court of the host country draw any conclusion on a final finding of fraud, and eventually disregard an A1 form.

Whereas in previous occasions the CJEU had always followed the opinion of the Advocate-General, it now takes a clear distance from his advice to allow for a more liberal approach, by invoking the principle of legal certainty and re-confirming the value of the A1 form.

 

How Fragomen Can Help

The present Court decision shows once more the importance of obtaining A1 forms for workers who travel for business or work to another European country in accordance with the rules of the EU social security regulations.

Where A1 forms are not requested accordingly, they can be disregarded under certain conditions by the courts of the host country. Importantly, the risk of retroactive applicability of host country social security, along with significant penalties, is realistic.

Considering the growing short-term mobility, A1 forms are increasingly important documents to help monitor compliance from an immigration and posted workers perspective. In the fight against social dumping, it can be expected that host country authorities will always more closely examine the validity of A1 certificates.

For additional information and to discuss the concerns of Posted Workers and the social security impact of COVID-19 on your company, as well as to plan strategically for remobilisation and an efficient deployment of your mobile workforce following the pandemic’s emergency period, please do not hesitate to reach out to us or to your usual Fragomen immigration professional.