The European Court of Justice has ruled on case C‑421/23 concerning the interpretation of Article 76(6) of Regulation (EC) No 883/2004.
THE CASE
In 2021, tribunal de première instance de Namur found a Portuguese entrepreneur guilty of social security fraud and using forged A1 Certificates. The entrepreneur had posted a total of 650 workers to Belgium over a five years period for construction work.
Although the documents were declared to have been issued on the basis of Regulation 883/2004, the judge found that they had not been issued by the competent Portuguese social security institution.
In addition, with the confirmation of the rejection of the A1 Certificates requests by the Portuguese social security authority, the company was considered to have been established for the sole purpose of supplying labour to the Belgian construction sector, as it did not carry out any substantial activity in Portugal.
REFERRAL TO THE CJEU
Following a claim by the Portuguese entrepreneur about the obligation to engage in preliminary dialogue and conciliation between the social security institutions involved on the actual fraudulent nature of the documentation, the Cour d’appel de Liège referred a number of questions to the CJEU:
- Applicability of Regulation 883/2004 when the A1 Certificates have been found to be false by both the host country authority and the issuing Country, even though the due social security contributions have been paid to the issuing Country;
- Dialogue and conciliation procedure as a mandatory requirement if the applicability of the previous point is confirmed;
- If the answer to the above questions is positive, the possibility for the authorities of the host Member State to declare that the certificates were produced as a result of fraudulent behaviour on the basis of the principle of prohibition of fraud and abuse of rights.
THE CJEU’S RESPONSE
The CJEU ruled as follows:
- Regulation 883/2004 also applies when an employer in one Member State posts workers to another Member State with documents in the form of Model A1 Certificates which are found to be forged by the competent authority in criminal proceedings;
- The dialogue and conciliation procedure, as provided for in Article 76(6) of Regulation No 883/2004, as amended by Regulation No 465/2012, is a preliminary step to enable the court of the sending Member State to ascertain the nature of the documentation.
With regard to the third question, however, no answer was given as it was deemed inadmissible due to its theoretical nature.
