European Court of Justice - Fight against fraudulently obtained A1 (E 101) certificate

On 2 April 2020, the European Court of Justice ruled in the joined cases Vueling Airlines (C-370/17 and C-37/18) that the courts and tribunals of the host Member State may not disregard an E 101 certificate (the predecessor of the current A1 certificate) when establishing that the certificate has been fraudulently obtained.

A posted worker can continue to be subject to the social security system of the sending Member State under certain conditions and need not be affiliated to the social security system of the host Member State. The authorities of the sending State can confirm this affiliation in an official document, i.e. the E 101 certificate, which has in the meantime been replaced by the A1 certificate.

In the past, the European Court of Justice has always ruled that an E 101 certificate is binding on the institutions of the host Member State (i.e. the competent institutions of the social security system as well as the judicial authorities) as long as this certificate has not been withdrawn or declared invalid.

This binding force has been restricted for the first time in the Altun case (see previous newsflash ). According to the Court, if the authorities of the host Member State, on the basis of information pointing to fraud, have entered into dialogue with the authorities of the sending State through a request for review and the authorities of the sending State fail to process this request adequately within a reasonable time, the court or tribunal of the host Member State establishing fraud can disregard the E 101 certificate.

In the joined cases Vueling, the scope of the Altun doctrine was under debate. Can the court or tribunal of the host Member State immediately disregard the certificate in case of fraud (i.e. broad scope of Altun) or should it first verify whether the procedure for contestation has been initiated (i.e. restricted scope of Altun)?

Contrary to the opinion of Advocate General Saugmandsgaard, the European Court of Justice ruled that the courts or tribunals of the host Member State can only act against fraudulently obtained E 101 certificates when:

• the appropriate procedure was initiated beforehand and promptly, and the evidence pointing to fraud has been submitted in this context in order to ensure the dialogue between the competent institutions;
• the competent institution has failed to process the request or has failed to adopt a decision within a reasonable time.

In other words, the Court confirms the restricted scope of the Altun judgment.

Action point

A Belgian court or tribunal cannot simply disregard an A1 certificate and unilaterally subject the posted workers to the Belgian social security system. Fraudulently obtained A1 certificates can only be disregarded under the conditions stated by the Altun judgment (see previous newsflash ).