When posted to a different member state to replace a worker posted by a different employer, that posted worker is covered by the social security system of his or her place of work, the Court of Justice of the EU ruled in a judgment returned on Thursday 6 September (case C-527/16).
The Austrian company Alpenrind operates an abattoir in Salzburg, where 250 workers posted by the Hungarian company Martimpex worked between 2012 and 2014. These workers replaced workers previously posted by a different Hungarian company, Martin-Meat. The Hungarian Social Security institution issued them with A1 certificates (formerly E 101) attesting that the Hungarian Social Security system applied.
The decision of the Austrian social security institution establishing that the workers posted by Martimpex were subject to compulsory insurance in Austria was challenged before the courts, and the Austrian Administrative Court asked the Court of Justice of the EU to clarify the application of the regulation (883/2004) on the coordination of the social security systems.
The Court holds that with no exceptions, a worker is covered by the social security regime of the country in which he or she works, so as to ensure equality of treatment. If a worker posted by an employer replaces a different worker posted by different employer, this does not constitute any of the exemptions that would allow that posted worker to be covered by the social security regime of the member state in which his or her employer normally carries out their activities, in this case the Hungarian regime.
The fact that the employers of the posted workers have their headquarters in the same member state or that they may have personal or organisational links is irrelevant, the European Court ruled.
However, other than in the event of fraud or abuse (case C-359/16, see EUROPE 11955), the A1 certificate issued by the Hungarian institution is binding upon the social security institutions and the Austrian courts unless this certificate has been withdrawn or declared invalid by Hungary, the Court states.
This applies where the case has been referred by the competent authorities of both member states in question to the Administrative Commission for the Coordination of the Social Security Systems, which concludes that the certificate was issued incorrectly and should be withdrawn. Furthermore, the Court considers that the A1 certificate may apply with retroactive effect, even if the certificate was issued after the competent institution of the country in which the work is carried out has already decided that the posted worker should be covered by the national regime. (Original version in French by Mathieu Bion)