A1 certificates and the applicable social security legislation
Can the Belgian National Social Security Office, the National Institute for the Social Security of the Self-employed, the social inspection or a judge disregard an A1 certificate on the applicable social security legislation in case of an abuse of law?
What are A1 certificates again? The A1 form – a certification of the applicable social security legislation – identifies which social security system applies to employees or self-employed workers who are working either temporally in another EU Member State or in more than one EU Member State during the same period. The A1 certificate is issued by the country where the employed or self-employed worker is habitually working, the so-called sending state, or by the home state (in the case of work carried out in multiple Member States).
As a main principle, the content of A1 certificates cannot be disregarded by the host Member State(s).
Nevertheless, in Belgium, the Programme Act of 27 December 2012 provides that a worker who is temporarily or partially working in Belgium and whose A1 certificate identifies the application of the social security legislation of another EU Member State will be subject to the Belgian social security legislation if the Belgian social security legislation applies to the worker when the Belgian National Social Security Office (NSSO), the National Institute for the Social Security of the Self-employed (NISSE), a social inspector or a judge establish an abuse with regards to the provisions for determining the applicable social security legislation as laid down in the Regulation 883/2004 on the coordination of social security systems. As a consequence, a Belgian court, the NSSO, the NISSE or a social inspector could thus set aside an A1 certificate issued by the institutions of another EU Member State.
The question arises whether this is indeed legal or whether this legal provision infringes the EU legislation on the coordination of social security systems.
In a judgment of 6 February 2018 (Altun case), the Court of Justice of the European Union decided in a preliminary ruling, following a question from the Belgian Supreme Court, that the A1 certificate issued by the sending state can be disregarded when the following conditions are cumulatively met:
The competent institution of the Member State to which the workers have been posted has made an application to the institution that has issued the A1 certificate for the review or withdrawal of this certificate in the light of evidence, collected in the course of a judicial investigation, which supports the conclusion that the certificate was fraudulently obtained or relied upon;
The issuing institution failed to take that evidence into consideration for the purpose of reviewing the grounds for the issuance of the certificate;
The right to a fair trial has been safeguarded in the context of judicial proceedings against the person(s) involved.
However, in a recent case of 11 July 2018, initiated by the European Commission against Belgium, the Court of Justice of the European Union decided that the provisions as laid down in the Programme Act of 27 December 2012 are contrary to the EU legislation on the coordination of the social security systems.
The Court of Justice of the European Union clarified in the latter judgment that even when there has been a manifest error of assessment of the conditions governing the application of the applicable legislation, the EU legislation provides a mandatory procedure that must be complied with to resolve any issue with regards to the validity of an A1 form, involving the issuing Member State. The mandatory procedure is defined in Regulation 987/2009 laying down the procedure for implementing Regulation 883/2004 on the coordination of social security systems. It provides in the intervention of the Administrative Commission for the Coordination of Social Security Systems, in order to resolve any dispute between the institutions of the Member States as regards the validity or the accuracy of an A1 certificate. The host Member State to which the worker has been posted can thus not unilaterally declare the A1 certificate invalid without filing an application to the competent institution in order to review and withdraw the issuing of the A1 certificate. Moreover, the person(s) involved must be given the possibility to rebut the allegations with regards to the incorrect A1 certificate(s).
As a consequence, neither the NSSO, the NISSE nor the Belgian social inspection can unilaterally set aside A1 certificates and impose the application of the Belgian social security to (employed or self-employed) workers who are temporarily working in Belgium or who are working in various Member States. Only Belgian courts may disregard the A1 certificate, but only insofar as the conditions set out in the Altun case, as listed above, are cumulatively met.
Note that the EU legislation on the coordination of the social security systems is currently subject to revision. In that context changes that improve cooperation between the competent institutions of the different Member States are currently being discussed. Watch this space!