Overview of recent cases before the Court of Justice of the European Union (January − June 2018)
| DOI | 10.1177/1388262718802123 |
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| Subject Matter | Case commentaries |
EJSS
Case commentary
European Journal of Social Security
2018, Vol. 20(3) 272–283
Overview of recent cases
ª The Author(s) 2018
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before the Court of Justice
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DOI: 10.1177/1388262718802123
of the European Union
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(January
June 2018)
Anne Pieter van der Mei
University of Maastricht, The Netherlands
In the reporting period January-June 2018, the Court of Justice delivered various rulings of
particular significance for social security and social benefits. The ruling that stands out is the one
in Altun,1 which concerns the rules on posting as contained in Regulations 1408/712 and 883/20043
and, specifically, the probative value of E-101 and A-1 certificates. In addition, the CJEU has
brought about an important clarification of the application of Regulation 883/2004 to pre-
retirement benefits (Czerwin´ski),4 the application of the single State rule to persons residing in
a third State (Jahin),5 and the export of unemployment benefits (Klein Schiphorst).6 Finally, this
overview includes rulings concerning the social security rights of persons who have worked for an
EU institution (DW),7 social security rights that may be derived from the EU-Switzerland
1. Criminal proceedings against O¨mer Altun and Others, Case C-359/16, ECLIE
¨ U’C’’2018:63.
2. Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed
persons, to self-employed persons and to members of their families moving within the Community, as amended and
updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28: 1), as amended by Regulation (EC)
No 592/2008 of the Parliament and of the Council of 17 June 2008 (OJ 2008 L 177: 1).
3. Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of
social security systems (OJ 2004 L 166, p.1, and corrigendum OJ 2004 L 200: 1), as amended by Regulation (EC) No
988/2009 of the European Parliament and of the Council of 16 September 2009 (OJ 2009 L 284: 43).
4. Stefan Czerwin´ski v Zakład Ubezpieczen´ Społecznych Oddział w Gdan´sku, Case C-517/16, EU: C:2018:350,
para.30.
5. Fr ´ed ´eric Jahin v Ministre de l’ ´
Economie et des Finances, Ministre des Affaires sociales et de la Sant ´
e, Case C-45/17,
EU: C:2018:18, para.22.
6. J. Klein Schiphorst v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen, Case C-551/16, EU:
C:2018:200, paras.35-37.
7. DW v Valsts socia¯la¯s apdroˇsina¯ˇsanas ag`entu¯ra, C-651//16, EU: C:2018:162.
Corresponding author:
Anne Pieter van der Mei, University of Maastricht, Minderbroedersberg 4-6, 6211 LK Maastricht, Netherlands.
E-mail: ap.vandermei@maastrichtuniversity.nl
van der Mei
273
agreement on free movement of persons (Crespo Rey)8 and the application of Directive 79/7 on
equal treatment for men and women in social security matters9 to the pension rights of persons who
have undergone sex reassignment surgery (MB).10
Posting and the Probative Value of E 101- and A1 -certificates: Altun
Altun concerns the rules determining the applicable legislation for posted workers. Articles 14(1),
sub a of Regulation 1408/71 and Article 12(1) of Regulation 883/2004 stipulate that such workers
are not – as ‘ordinary’ workers are - subject to the legislation of the Member State where they
perform economic activities but rather to the legislation of the Member State from which they are
posted. This deviation from the lex loci laboris rule lasts for a maximum period of 12 months
(Regulation 1408/71) or 24 months (Regulation 883/2004). This conflict rule for posted workers
can only be applied when (i) a direct link exists between the posted worker and the undertaking that
posts him or her and (ii) the undertaking concerned normally pursues activities in the territory of
the State in which they are established.11
To ensure the practical application of the conflict rule for posted workers, the competent insti-
tution of the Member State in which the undertaking is based (the posting Member State) must issue
an E 101 certificate (Regulation 1408/71) or an A 1 certificate (Regulation 883/2004), which states
that the worker remains subject to the legislation of the competent State. The principle of sincere
cooperation (Article 4(3) TEU) imposes obligations on both the posting Member State and the
Member State to which the worker is posted (the host Member State). The competent institution
of the posting State must assess all relevant facts and ensure that the information contained in an
E 101 certificate is accurate.12 The institution in the host Member State must accept the certificate
and cannot apply its own legislation. Courts in the host Member State are not entitled to review the
validity of the certificates. If the competent institution of the host Member State expresses doubts as
to the accuracy of the facts on which the certificate is based and, consequently, of the information
contained in it, the institution which issued the E 101 certificate must reconsider the grounds for its
issue and, if appropriate, withdraw the certificate. The institutions must enter into a dialogue, even in
the case of a manifest error of assessment of the conditions for applying the posting provision. In the
event that the institutions concerned do not reach an agreement on, in particular, the question how the
particular facts of a specific case are to be assessed, and thus on the question of whether the conflict
rule for posting applies, they may refer the matter to the Administrative Commission or, if need be,
bring an infringement proceeding before the CJEU.13
In Altun, the CJEU to was asked if, and if so, how, the above rules should be applied to E 101- or
A 1-certificates that (may) have been fraudulently obtained. The case concerned Absa, a Belgian
construction company, which was investigated by the Belgian Social Security Inspectorate. That
8. Instituto Nacional de la Seguridad Social (INSS) v Jesu´s Crespo Rey, Case C-2/17, ECLI: EU: C:2018:511,
paras.47-52.
9. Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal
treatment for men and women in matters of social security (OJ 1979 L 6, p. 24).
10. MB v Secretary of State for Work and Pensions, Case C-451/16, ECLI: EU: C:2018:492, para.27.
11. FTS, C 202/97, EU: C:2000:75, ECLI: EU: C:2000:75).
12. A-Rosa Flussschiff, C 620/15, EU: C:2017:309, para.44.
13. Ibid., paras.45-60. See further Article 5 of Regulation 987/2009 and Decision nr.A 1 of the Adminsitrative Commission
(OJ 2009 C 106).
274
European Journal of Social Security 20(3)
investigation found that since 2008 Absa had employed practically no staff and subcontracted the
work at all its sites to Bulgarian undertakings posting workers to Belgium. It also revealed that the
use of such posted workers was not declared to the institution responsible for the collection of
social security contributions in Belgium; those workers all possessed ‘Bulgarian’ E 101 or A 1
certificates. A judicial investigation conducted in Bulgaria through letters rogatory, ordered by a
Belgian investigating magistrate, found that those Bulgarian undertakings carried out no signifi-
cant activity in Bulgaria. On the basis of the results of that investigation, the Belgian Social
Inspectorate requested the competent Bulgarian authority to withdraw the certificates issued to
the posted workers concerned. Having received no satisfactory response, the Belgian authorities
began legal proceedings against, inter alia, Absa. The case was ultimately brought before the
Belgian Court of Cassation, which decided to stay proceedings and to ask the CJEU whether a
national court may disregard an E 101 certificate issued by the institution of another Member State
when the facts support the conclusion that the certificate was fraudulently obtained or relied on.
Having confirmed previous case law on posted workers, the probative value of E 101
certificates and the aforementioned procedural rules for settlement of disputes between social
security institutions,14 the CJEU established that the prohibition of fraud and abuse of rights
constitutes a general principle of EU law.15 Findings of fraud are to be based on a consistent body
of evidence that satisfies both an objective and a subjective factor. The objective factor concerns
the fact that the conditions for obtaining and relying on an E 101 certificate are not met. The
subjective factor corresponds to the intention of the parties concerned to evade or circumvent the
conditions for the issue of that certificate, with a view to obtaining the advantage attached to it. The
fraudulent procurement of an E 101 certificate may thus result from a deliberate action, such as the
misrepresentation of the real situation of the posted worker or of the undertaking posting that
worker, or from a deliberate omission, such as the concealment of relevant information, with the
intention of evading the conditions governing posting. The CJEU observed that when the institu-
tion of the host Member State puts before the institution that issued the E 101 certificate concrete
evidence that suggests that the certificate was obtained fraudulently, the latter must review the
grounds for the issue of the certificates and, where appropriate, must withdraw it. If the latter
institution fails to carry out such a review within a reasonable period of time, it must be possible for
that evidence to be relied on in judicial proceedings,...
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