The recent ECJ’s ruling in European Commission v Belgium (C-356/15) should add to the academic debate on the judgment in Altun and Other (C-359/16).
In Altun and Other, the ECJ underlined the principle of prohibition of fraud and abuse of right and ruled that in specific circumstances, a national court may, in the context of proceedings brought against persons suspected of having used posted workers ostensibly covered by Portable Documents A1 fraudulently obtained or relied on, disregard those certificates.
Although the ECJ emphasised that such certificated cannot be annulled by a court of a Member State other than that in which the document was issued, the judgment left open the debate on whether the person concerned can be made subject to the legislation of the host Member State (i.e. double social security subjection).In context, in his Opinion, Advocate General SAUGMANDSGAARD ØE, took the view that the situation of double social security cover, is inherent in a finding of fraud.
In Commission v Belgium, the ECJ recalled that pursuant to the ruling in Altun and Other, a national court may disregard the PDA1 and must determine whether the persons suspected of having used posted workers ostensibly covered by certificates obtained fraudulently, may be held liable under the applicable national law.
Prima facie, such a determination cannot result in double social security subjection, but only in an eventual conviction of the persons suspected of having used posted workers ostensibly covered by certificates obtained fraudulently.
In regard to the failure of the Member State that issued the PDA1 to carry out a review and if relevant withdraw the said certificate, Articles 258 and 259 TFEU provide the appropriate remedies.
In any circumstances, the ECJ rejected the argument invoked by Belgium, justifying a temporary subjection to the legislation of the host Member State, on grounds of Article 6(1)(a) of Regulation No 987/2009.
In the light of the above considerations:
- The issuance of the PDA1 by the posting Member State, rules out the existence of a difference of views between the institutions or authorities of two or more Member States in the sense of Article 6(1)(a) of Regulation 987/2009.
- Where the Member State to which the workers are posted brings concrete evidence that PDA1 were obtained fraudulently, pursuant to Article 76(6) of Regulation 883/2004, by virtue of the principle of sincere cooperation, it is the duty of the Member State that issued the certificates, to review the grounds for the issue of those certificates and, where appropriate, to withdraw it. The dialogue provided for in Article 76(6) of Regulation 883/2004 must comply with Article 5.2 to 5.4 Regulation 987/2009.
- Where the Member State that issued the certificate fails to fulfil its obligations, on the one hand, the host Member State may rely on the appropriate remedies provided for by Article 258 and 259 TFEU and, on the other hand, its national courts may disregard the PDAI fraudulently obtained or relied on, in order to determine whether the persons suspected of having used posted workers, may be held liable under the applicable national law.
Prima facie, double social security subjections, are in any circumstances in breach of the EU law.