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Clarification from the European Court of Justice (ECJ) concerning social security certificates (A1/E101)


The ruling of 6 February 2018 states that, in the case of the transnational posting of workers, A1 certificates issued by the sending Member State can be disregarded if fraudulently obtained

The European Court of Justice (ECJ) issued a new ruling concerning transnational posting that further strengthens the fight against illegal behaviour.

The Belgian Court of Cassation put a question to the ECJ concerning the C-359/16 case with regard to the binding power of the A1 certificate (formerly the E101 form issued in accordance with Regulation No 574/72 and applicable before being replaced with the A1 form in accordance with Regulation No 987/2009), specifically requesting if the certificate: "can be declared invalid or disregarded by a court from a Member State other than the issuing one, when the facts submitted for assessment support the conclusion that the certificate was fraudulently obtained or relied on."

The ECJ rules that this is possible based on the principle of sincere cooperation that also implies that of mutual trust. In fact, the Country that issues the certificates must intervene if there is evidence, collected in the course of an inspection, which indicates that those certificates were fraudulently obtained.   The Member State from which the posted workers come from must "review, in the light of the evidence collected, the grounds for the issue of those certificates and, if necessary, withdraw them or declare them invalid". The Court adds that if the sending State fails to carry out a review of those certificates within a reasonable period of time, a national court may, on the basis of that evidence, in the context of judicial proceedings, disregard those certificates if, with due regard to the safeguards inherent in the right to a fair trial, it finds the existence of such fraud.

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