A1 certificate cannot be temporarily suspended

An A1 certificate remains legally valid, even if it has been provisionally suspended by the issuing institution, until it is officially withdrawn or declared invalid.

The Court of Justice of the European Union point out on the Judgment of the Court of Justice of the European Union (Second Chamber), 2 March 2023 [1], that the temporary suspension of the validity of the A1 certificate, which confirms one’s affiliation to a Member State’s social security system, does not have legal effect. In order to remove A1 from binding force, according to the CJEU, it is necessary to go through the procedure described in the EU regulation. And, as a rule, this can only be done by declaring the certificate invalid or withdrawing it.

Case study

The competent Slovak authority issued A1 certificates, confirming the insurance of several employees of the company in the Slovak social security system. However, following an inspection by the Belgian social inspectorate, it was established that in reality the company was managed from Belgium and provided most of its transport services there. According to the inspection, it was created to employ cheap labour by posting workers.

As a result, a criminal case for social security contribution fraud has been launched in Belgium. In the course of it, the Belgian inspectorate asked the Slovak institution issuing A1 certificates to withdraw them retroactively. However, the issuing institution stipulated that no A1 certificates had been definitively withdrawn. Doubts about such a procedure arose at the cassation stage of the criminal court judgment and with this question was addressed to CJUE.

About the checks in Belgium:

Checks provided by the Belgian Social Insurance Inspectorate revealed that the Slovakia-based company was set up to provide cheap labour by posting workers. Although the Slovakian company held a community road transport license issued by the Slovakian authorities, it did not carry out any significant economic activity in Slovakia. During criminal proceedings brought against it for social security contribution fraud, the Belgian social security inspectorate asked the Slovak issuing institution to retroactively withdraw the A1 certificates in question. The institution responded that it was temporarily suspending the binding effects of these certificates pending final resolution of this request, after criminal proceedings were closed.

In that regard, the Court of Justice of the EU states:

In this context, the Court of Justice of the EU point out that: « It follows from the foregoing that an A1 certificate, despite having been provisionally suspended by a decision of the issuing institution, does not cease to have binding effects during that period of provisional suspension, with the result that it continues to be binding upon the institutions and courts of the Member States.

It is necessary to ascertain, as a first step, whether an A1 certificate, the effects of which were provisionally suspended, has no binding effect on the institutions and courts of the Member States during that period of provisional suspension.

In that regard, in the first place, it is apparent from the wording of Article 5(1) of Regulation No 987/2009 that only the withdrawal and declaration of invalidity of A1 certificates remove the binding effects of those certificates vis-à-vis the institutions and courts of the Member States. »[2]

In the present case, although this dialogue and reconciliation procedure has indeed been initiated, the institution issuing the A1 certificates at issue in the main proceedings nevertheless, by failing to apply correctly the detailed rules for the application of this procedure, decided to defer the reconsideration of the validity of those certificates and the determination of the social security system applicable to the workers concerned until the conclusion of the criminal proceedings pending before the courts of the Member State in which the work is carried out.

In that context, it must be recalled that, as the Court has already pointed out, the procedure of dialogue and reconciliation must be observed by the institutions of the Member States called on to apply Regulations No 883/2004 and No 987/2009 where there are disputes between the institutions of the Member States concerned regarding the validity or accuracy of an A1.

Conclusion:

This judgment reinforces the principle that the decision to withdraw A1 is made only by one institution of the sending country issuing such an A1 certificate.

However, A1 certificate issued by the competent institution of a Member State is binding upon the institutions and courts of the Member State where the work is carried out, including when, following a request for reconsideration and withdrawal sent by the competent institution of the latter Member State to the issuing institution, that institution has declared that it has provisionally suspended the binding effects of that certificate until such time as it decides definitively on that request.

So, even if the competent institution of the Member State where the work is being performed requests a reconsideration and withdrawal of the certificate from the issuing institution, A1 certificate cannot be temporarily suspended, so it remains valid until final resolution of this request.

When an A1 certificate is issued by the competent institution of a Member State, it has a legal binding effect on the institutions and courts of the Member State where the work is being done. This means that the A1 certificate holds authority and must be recognized and respected unless it is declared as invalid or withdrawn.

 

[1] CURIA – Documents (europa.eu)

[2] CURIA – Documents (europa.eu)

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