Brussels, 09/02/2004 (Agence Europe) - Following a recent judgement delivered by the Dutch Supreme Court case concerning a worker posted by his employer in the Netherlands to an undertaking in Germany in April 1995. The competent institution in the Netherlands issued an E 101 form for the worker who had been living and working exclusively in Germany between May 1995 and April 1996 but who lost all rights to Dutch social security. The Commission feels that the Supreme Court's reasoning is inconsistent with the EU's principles and rules on freedom of movement for workers (EEC No. 1408/71 and Article 39 EC ). It has therefore sent a letter of formal notice to the Netherlands authorities, asking them to submit their comments within two months.
The Commission is of the opinion that the decision is not consistent with freedom of movement for workers contained in Regulation (EEC) No 1408/71. Antonia Mochan spokesperson for Commissioner Anna Diamantopoulou explained that this regulation exonerates a person working temporarily in another Member State from having to change social security scheme for a short period, during which he remains linked to his employer. According to the Commission the value given by the Supreme Court to the declaration on posted workers does not comply with Community law, according to which a certificate of posting remains valid and binding until it is withdrawn. Finally, the Supreme Court's judgement is likely to lead to a deviation from the principle of a single applicable legislation, as set out in Article 13 of Regulation (EEC) No 1408/71, since posted workers might well be excluded from national social insurance but continue to be subject to employee insurance.