The CJEU’s case law on the role of posting certificates: A missed opportunity to combat social dumping
| Author | Herwig Verschueren |
| Published date | 01 August 2020 |
| DOI | 10.1177/1023263X20938664 |
| Date | 01 August 2020 |
| Subject Matter | Articles |
Article
The CJEU’s case law on the
role of posting certificates:
A missed opportunity to
combat social dumping
Herwig Verschueren*
Abstract
The posting of workers between Member States of the EU has increased dramatically over the past
decade. It has led to political and legal discussions on the employment and social rights of these
workers during their temporary employment in the host Member State. As far as social security is
concerned, these workers remain subject to the social security system of the sending Member
State, provided that a number of conditions are fulfilled. Still, the application of these conditions
and control of their observance did not turn out to be efficient and was even rendered problematic
by the case law of the CJEU on the meaning of the so-called posting certificates. This article takes a
closer look at the role of these certificates. It the analyses and discusses the case law on this and
formulates some critical comments on it.
Keywords
Posting of workers, social security, posting certificates, fraud, case law of the CJEU
1. Introduction
In the last few years the posting of workers within the European Union has caused a great
deal of legal and political controversy. The key question in this respect is which labour law
and social security law applies to these employees: that of the Member State of origin or that
of the Member State of temporary employment? The answer to this question determines the
* University of Antwerp, Belgium
Corresponding author:
Herwig Verschueren, University of Antwerp, Venusstraat 23, Antwerpen 2000, Belgium.
E-mail: herwig.verschueren@uantwerpen.be
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(4) 484–502
ªThe Author(s) 2020
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DOI: 10.1177/1023263X20938664
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scope of the territorial application of the still nationally defined labour and social security law
of the Member States.
1
One of the points of discussion in this matter is the question of what kind of supervision the
Member States can exercise over the observance of the rules of the European social secur ity
coordination with regard to the posting of workers on their territory. Pursuant to Union law workers
posted within the EU continue to be subject to the social security of the sending Member State.
This means that for the work they temporarily carry out in the host country they are not subject to
the social security system of that Member State, including the payment of contributions. Quite
often this gives the employers concerned a competitive advantage as they can offer their services at
a lower cost price in the host Member State. Sometimes receiving states experience this as unfair
competition or even social dumping.
2
Over the last 25 years this has often led to legal and political
arguments, all the more so because undertakings set up certain constructions, such as letterbox
companies, to make use of this advantage. The European social security coordination does provide
for a number of conditions for the application of the posting rule, but the application and control of
its observance did not always turn out to be efficient and was even rendered problematic by the
case law of the Court of Justice on the meaning of the so-called E101 and A1 certificates.
3
This article will take a closer look at the role of these certificates in monitoring the application of
the European social security coordination. First, we will give a rough outline of the conditions under
which a posted employee or self-employed person can remain subject to the social security legis-
lation of the sending country and the administrative procedures to implement them (section 2).
Subsequently we will analyse the case law of the CJEU on the role and validity of the posting
certificates. We will divide this analysis in two parts. We will start with the case law up to 2018,
in which the CJEU stressed the need for dialogue between the involved Member States and did not
allow any unilateral initiatives by a Member State who disagreed with the issued document (section
3). We will then refer to the growing dissatisfaction with the content and implementation of this case
law (section 4). In response the CJEU has nuanced its case law and the meaning of the certificates as
regards fraud since 2018. Section 5 will discuss this development in more detail since the cases
submitted to the Court offer good examples of the circumvention strategies that are used. In section 6
we will formulate some critical comments on the case law. In section 7 we will briefly discuss the
pending proposals of the European Commission to amend the regulations in order to enhance the
efficiency of the control on their implementation. Section 8 provides a conclusion.
1. There is an abundance of literature on these issues. For a recent account see e.g. the various contributions in: J. Arnholtz
and N. Lillie (eds.), Posted Work in the European Union. The Political Economy of Free Movement (Routledge, 2020)
and the literature referred to there.
2. The European Parliament Resolution of 14 September 2016 on social dumping in the European Union (A8-0255/2016)
uses the following definition: ‘social dumping covers a wide range of intentionally abusive practices and the cir-
cumvention of existing European and national legislation (including laws and universally applicable collective agree-
ments), which enable the development of unfair competition by unlawfully minimizing labour and operation costs and
lead to violations of workers’ rights and exploitation of workers’.
3. Further in this contribution we will also refer to ‘posting certificates’. E101 certificates and A1 certificates are certif-
icates issued by a social security body of a Member State in which this State declares which legislation applies to a
certain person and on which ground. This does not only concern situations of posting but, for instance, also situations in
which activities are carried out in more than one Member State simultaneously. The E101 certificates were issuedon the
basis of old Regulation 1408/71 and the A1 certificates are issued on the basis of current Regulation 883/2004. For an
overview of the number of certificates issued in the recent years: F. De Wispelaere, L. De Smedt and J. Pacolet, Posting
of Workers: Report on the A1 Portable Documents Issued in 2018 (European Commission, 2020).
Verschueren 485
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