Obligation to keep A1 form in the vehicle
Are drivers obliged to keep A1 forms in the cabin of their vehicles while carrying out international transport operations? This question has been asked repetitively, especially by transport operators who send their drivers to France and Austria, but checks are also carried out in Germany and Italy. Possession of A1 form is required by national controlling authorities in those countries, despite the fact that such an obligation does not follow directly from the EU legislation. I have contacted the European Commission services in order to clarify this issue.
What is an A1 form?
Portable Document (PD) A1 is issued when a worker or a self-employed person is sent to another EEA (European Economic Area) country and it certifies which social security legislation applies to its holder. Under the EU rules on coordination of social security systems a person is only subject to the social security legislation of one country at any time.
Rules concerning the PD A1 are laid down by Regulations No 883/2004 and 987/2009 on the coordination of the social security systems. Regulation No 987/2009 lays down an obligation for the employer / the self-employed person concerned to notify the competent Member State of an activity that is pursued in another Member State (Article 15.1). In case an activity is normally pursued in two or more Member States (like in the case of road transport), the person (driver) concerned is required to inform the relevant institution in the Member State of its residence (Article 16.1). In both cases, a PD A1 is subsequently issued by the competent Member State. Its purpose is to evidence that its holder is affiliated to the social security scheme of that State and has no obligations to pay social security contributions in another Member State.
Is it obligatory for drivers to keep A1 forms in the cabin?
The obligation to keep an A1 form in the cabin of the vehicle, while providing international transport operations, does not follow directly from EU law. It is not part of the list of obligatory documents to be kept in the vehicle in case of posting as laid down by the Enforcement Directive 2014/67/EU (art. 9.1.b) nor by the lex specialis Directive 2020/1057 (art. 1.11.b). What is more the Regulation on coordination of social security contributions No 987/2009 only requires the employer/ self-employed person to inform the competent institution for the purpose to obtain an A1 form.
Despite this fact, there are concrete examples of countries such as France sanctioning the lack of A1 form during road control. According to article L. 114-15-1 of the French social security code presentation of this document during roadside check is required. A failure to present A1 form during the time of control by the driver, road transport operator, its representative and/or counterparty in the meaning of article L. 8222-1 and L.8222-2 of the labour code, is sanctioned in 2022 at the level of 3428,00 Euro.
Is this obligation in line with EU law? I have contacted the European Commission in order to finally clarify this matter. In the reply from the European Commission’s Directorate General for Employment, Social Affairs and Inclusion we read that “ the European Commission takes the view that EU law does not deprive Member States of the right to check that persons performing activities in their territories are actually and validly affiliated to a social security scheme in another Member State, as evidenced by a PD A1. When a posted driver, for instance, is not able to present a PD A1, it is very difficult in practice for the receiving Member State to check the reality of that affiliation. Therefore, it is the European Commission’s position that the receiving Member State may request the presentation of a PD A1 and, as a matter of principle, may impose an administrative fine in case of non-compliance. However, the possibility to impose a fine is subject to certain conditions. Notably, Member States must act in a proportionate manner in this respect. This implies, for instance, that a person cannot be fined if s/he can provide elements of proof that a request for a PD A1 has actually been submitted before the inspection in the Member State where the activity is pursued, even if such a document has not been issued yet.”
The Regulation on social security coordination also specifies, that the notification for the purpose to require an A1 form shall be done “whenever possible in advance”. This leaves some room for interpretation in situations where a driver has been sent abroad “last minute” in order e.g. to replace another worker and may act in favour of the transport operator and driver during the control.
- There is no general obligation for Members States to require possession of A1 form during roadside checks that would follow directly from EU legislation. However, according to the European Commission, Member State may request the presentation of a PD A1 and may impose an administrative fine in case of non-compliance. It is therefore important for transport operators to carefully check national rules applicable in EU Member States in order to comply with them.
- In practice issuing A1 forms takes time, from 1 to 2 months and in some countries even longer. Therefore, in cases where PD A1 cannot be presented during roadside check, it should be enough to demonstrate any proof, that a request for an A1 form has actually been submitted before the inspection in the Member State where the activity is pursued.
- It is also important to underline, that A1 from has only a declaratory effect. According to the Commission’s reply” “failure to present it cannot legally imply that the State where the activity is pursued and the inspection is carried out becomes the competent Member State pursuant to Title II of Regulation (EC) No 883/20044.” In practice it means that, lack of PD A1 does not generate a change of competent Member State and obligation to pay social security contributions in the receiving country.
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