CJEU again confirms binding nature of A1 forms
07 Mar 2023
In a judgment of 2 March 2023, the Court of Justice of the EU (CJEU) ruled that an A1 form retains its binding nature, even when the Member State that issued the A1 form declares that it provisionally withdraws the form pending the outcome of criminal proceedings regarding fraudulent posting in the host Member State.
Facts in the case at hand
Following a social inspection in a Belgian company active in national and international transport, the Belgian social security authorities found evidence that the Slovak drivers the company used were fraudulently posted from Slovakia to Belgium. As a result, criminal proceedings were brought before the Belgian courts and the Belgian social security authorities requested their Slovak counterparts to retroactively withdraw the A1 forms they issued for those drivers.
The Slovak social security authorities replied that they were unable to successfully audit the Slovak company that posted the drivers to Belgium and asked the Belgian authorities to send over all evidence gathered in the framework of the investigation. However, because they in fact had serious doubts about the validity of the posting, the Slovak authorities decided to – in the meantime – provisionally withdraw the A1 forms in question. They stated that, during this period of provisional withdrawal, those forms would no longer have binding force and the Belgian criminal proceedings would be able to continue. They would make their final decision on whether or not to definitively withdraw the A1 forms once they received all the evidence and after the Belgian criminal proceedings had run their course.
Both in first instance and in appeal, the Belgian company was found guilty of social security fraud. It appeared from these judgments that, given their provisional withdrawal by the Slovak authorities, the courts considered the A1 forms to be non-binding and therefore devoid of any evidential value. The Belgian company brought an appeal against the last judgment before the Court of Cassation, which decided to stay the proceedings to refer the question of the impact of provisionally withdrawing an A1 form to the CJEU for a preliminary ruling.
The CJEU judgment
The Court ruled that an A1 form fully retains its binding nature on the social security authorities and courts of the host Member State, even when the issuing social security authorities – following a request from the host Member State authorities to withdraw the A1 form because of fraud – decided to provisionally withdraw the A1 form, pending the outcome of the criminal proceedings in the host Member State.
However, the Court also stated that – in such circumstances – the principles it laid down in its 2018 Altun-judgment can apply. This means that, even though the A1 forms retain their binding status in case of provisional withdrawal, the courts of the host Member State can still disregard them in case of demonstrated fraud, provided that, first, a reasonable period has elapsed without the issuing institution having reconsidered the ground for issuing the A1 form and, second, that the right to a fair trial is guaranteed.
Intermezzo – Community license for road transport
For the sake of completeness, please note that – in the framework of this case – the CJEU also ruled that the fact that a company holds a Community license for road transport, issued by the authorities of a Member State, doesn’t constitute irrefutable proof that the company’s registered office is located in that Member State for the purpose of determining which social security legislation is applicable based on the conflict rules of Regulation (EC) no. 883/2004.
Conclusion
The CJEU judgment serves as a good reminder of both the near-absolute binding nature of A1 forms as long as they’re not withdrawn by the issuing Member State and the Court’s Altun-doctrine, which allows the courts of a Member State to disregard an A1 form in case of fraud, if a number of conditions are complied with.
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