ECJ rules against fraudulent posting of workers
Host countries do not have to unconditionally recognise fraudulently obtained posted-worker certificates.
AD – 02/2018
Following a request for a preliminary ruling from the Belgium Court of Cassation in Case C-359/16 Altun and Others, the European Court of Justice (ECJ) handed down its decision on 6 February 2018. The Court accepted the ruling made by Advocate General Henrik Saugmandsgaard Øe on 9 November 2017 (see DSV article from 9 Nov 2017).
Between 2008 and 2012, the Belgian construction company Absa outsourced all of its work to Bulgarian subcontractors. The subcontractors’ employees, including Mr Altun, all held E 101 (today A1) certificates issued in Bulgaria. The Belgian Social Inspectorate investigated Absa in 2012 and questioned the existence of the Bulgarian subcontractors. It wrote to the Bulgarian social security agency concerning suspected fraud. In the opinion of the Belgian authorities, the reply from the Bulgarian institution was inadequate, and so they brought legal proceedings before the Belgian court in 2013.
In its ruling, the Court referred to its case-law, according to which the principle of sincere cooperation requires the issuing institution (in this case, Bulgaria) to properly assess the facts of the case and to ensure the accuracy of the information contained in the certificate. This principle also implies mutual trust: the certificate creates a presumption of legality which, in principle, binds the competent institution of the host Member State (in this case, Belgium).
Case-law in current case
If the issuing institution does not review the grounds for issuing a certificate within a reasonable period of time, evidence of the existence of fraud must be available as part of judicial proceedings in order to ensure that the court of the host Member State can disregard the certificates.
Persons who are alleged in such a procedure to have deployed posted workers using fraudulently obtained certificates must, as part of the right to a fair trial, be given the opportunity to refute such allegations.
In the present case, the Belgian court can disregard the Bulgarian certificates in question because, firstly, the Belgian institution had asked the Bulgarian institution to review and withdraw the certificates in the light of evidence collected in the course of a judicial review which found that the certificates were fraudulently obtained or claimed and, secondly, the Bulgarian institution failed to take that evidence into consideration.
The Belgian court also has to determine whether the persons suspected of employing posted workers covered by fraudulently obtained certificates may be held liable under the applicable national law.