In the case of proven fraud, the court of member state is allowed to withdraw EI01 certificates or annul them. These certificates attest to posted workers belonging to a social security system on their respective territory or country of origin. The courts can decide on this action if the issuing authority fails to proceed within a reasonable deadline towards a re-examination of the said certificates on the basis of evidence submitted to it which proves that fraud has been committed.
By way of the decision made on Tuesday 6 February in Case C-359/16, the European judges have followed, point by point, the conclusions delivered by the Advocate General in November 2017 (see EUROPE 11901).
They were responding to a preliminary question from the Belgian Court of Cassation, which had been requested to reach a decision in a case involving a Belgian construction company that was penalised by the Belgian authorities for Social Security fraud. On its building sites in Belgium, the company systematically used posted workers sent for periods exceeding three months by Bulgarian subcontractors who exercised practically no activity in their country.
The workers were provided with E101 certificates by their competent Bulgarian institutions that attest to their belonging to the social security system of their country. This set up enabled the company to not declare the workers in question in Belgium or pay their social security contributions and created a situation that provided it with a certain advantage compared to its competitors.
In these conditions, the Belgian Court of Cassation made a request to the European judges in the form of referral about the possibility of a court in a member state disregarding or withdrawing an E101 certificate when the evidence submitted to it helps to assert that it had been obtained fraudulently (in this case, by false declarations).
The Court responded by pointing out that in its caselaw there are two underpinning principles regarding the provision of the E101 certificate: fair competition applying, so the authorities that award the certificate provide a correct appraisal of facts regarding those for whom the certificate is requested and accurately guarantee the different mentions contained within it; the principle of mutual trust, which creates the presumption of legality for the authorities of the host country.
As a result of these two principles: as long as the certificate has not been withdrawn or declared invalid, the authority of the host country can take into account the fact that the posted worker holding the certificate is supposed to be properly registered by the social security system of the member state where the company responsible for the employment is established (in this case, the subcontractor in Bulgaria); on the other hand, the body that awarded the certificate must reconsider the appropriate basis of awarding the certificate and, if necessary, withdraw the certificate when the competent institution in the host country informs it of evidence that casts doubt on the accuracy of the facts which form the basis of awarding the certificate.
Moreover, in this case, it has been demonstrated to a Belgian court (the Court of Appeal in Antwerp), that the certificates were obtained fraudulently through bogus statements.
Although the competent Belgian institution has approached its Bulgarian counterpart with a request to re-examine the withdrawal of the certificate in question on the basis of evidence obtained during the legal investigation, the Bulgarian institution has not taken these elements into consideration and has failed to respond.
In these conditions, the Court concludes that the Belgian court can disregard the incriminated certificates because to maintain their binding character would lead to tolerating or indeed accepting fraud. That court must also 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. (Original version in French by Francesco Gariazzo)