FranklinWillemen/mapa_plus huggingface dataset:
The competent authorities of the Member States shall communicate to each other all information regarding : ( a ) measures taken to implement this Regulation ; ( b ) changes in their legislation which may affect the implementation of this Regulation . 2 .
For the purposes of this Regulation , the authorities and institutions of the Member States shall lend one another their good offices and act as though implementing their own legislation .
Regulation No 987 / 2009 10 Recitals 2 , 6 and 12 of Regulation No 987 / 2009 state : ‘ ( 2 ) Closer and more effective cooperation between social security institutions is a key factor in allowing the persons covered by [ Regulation No 883 / 2004 ] to access their rights as quickly as possible and under optimum conditions . ( 6 ) Strengthening certain procedures should ensure greater legal certainty and transparency for the users of [ Regulation No 883 / 2004 ] .
For example , setting common deadlines for fulfilling certain obligations or completing certain administrative tasks should assist in clarifying and structuring relations between insured persons and institutions . ( 12 ) Many measures and procedures provided for in this Regulation are intended to ensure greater transparency concerning the criteria which the institutions of the Member States must apply under [ Regulation No 883 / 2004 ] .
Such measures and procedures are the result of the case-law of the [ Court ] , the decisions of the Administrative Commission and the experience of more than 30 years of application of the coordination of social security systems in the context of the fundamental freedoms enshrined in the Treaty . ’ 11 Under Title I of Regulation No 987 / 2009 , entitled ‘ General Provisions ’ , Chapter I dealing with definitions provides , in Article 1 ( 2 ) ( c ) thereof , that ‘ “ document ” means a set of data , irrespective of the medium used , structured in such a way that it can be exchanged electronically and which must be communicated in order to enable the operation of [ Regulation No 883 / 2004 ] and [ Regulation No 987 / 2009 ] ’ . 12 Title I , Chapter II , entitled ‘ Provisions concerning cooperation and exchanges of data ’ , provides in Article 5 , entitled ‘ Legal value of documents and supporting evidence issued in another Member State ’ : ‘ 1 .
Documents issued by the institution of a Member State and showing the position of a person for the purposes of the application of [ Regulation No 883 / 2004 ] and of [ Regulation No 987 / 2009 ] , and supporting evidence on the basis of which the documents have been issued , shall be accepted by the institutions of the other Member States for as long as they have not been withdrawn or declared invalid by the Member State in which they were issued . 2 .
Where there is doubt about the validity of a document or the accuracy of the facts on which the particulars contained therein are based , the institution of the Member State that receives the document shall ask the issuing institution for the necessary clarification and , where appropriate , the withdrawal of that document .
The issuing institution shall reconsider the grounds for issuing the document and , if necessary , withdraw it . 3 .
Pursuant to paragraph 2 , where there is doubt about the information provided by the persons concerned , the validity of a document or supporting evidence or the accuracy of the facts on which the particulars contained therein are based , the institution of the place of stay or residence shall , insofar as this is possible , at the request of the competent institution , proceed to the necessary verification of this information or document . 4 .
Where no agreement is reached between the institutions concerned , the matter may be brought before the Administrative Commission by the competent authorities no earlier than one month following the date on which the institution that received the document submitted its request .
The Administrative Commission shall seek to reconcile the points of view within six months of the date on which the matter was brought before it . ’ 13 Under Article 6 of Chapter II , entitled ‘ Provisional application of legislation and provisional granting of benefits ’ : ‘ 1 .
Unless otherwise provided for in [ Regulation No 987 / 2009 ] , where there is a difference of views between the institutions or authorities of two or more Member States concerning the determination of the applicable legislation , the person concerned shall be made provisionally subject to the legislation of one of those Member States , the order of priority being determined as follows : ( a ) the legislation of the Member State where the person actually pursues his employment or self-employment , if the employment or self-employment is pursued in only one Member State ; 3 .
Where no agreement is reached between the institutions or authorities concerned , the matter may be brought before the Administrative Commission by the competent authorities no earlier than one month after the date on which the difference of views , as referred to in paragraph 1 or 2 arose .
The Administrative Commission shall seek to reconcile the points of view within six months of the date on which the matter was brought before it . 14 Under Title II of Regulation No 987 / 2009 , entitled ‘ Determination of the applicable legislation ’ , Article 15 , headed ‘ Procedures for the application of Article 11 ( 3 ) ( b ) and ( d ) , Article 11 ( 4 ) and Article 12 of [ Regulation No 883 / 2004 ] ( on the provision of information to the institutions concerned ) ’ , provided in paragraph 1 , in the version in force at the beginning of the period concerned : ‘ Unless otherwise provided for by Article 16 of [ Regulation No 987 / 2009 ] , where a person pursues his activity in a Member State other than the Member State competent under Title II of [ Regulation No 883 / 2004 ] , the employer or , in the case of a person who does not pursue an activity as an employed person , the person concerned shall inform the competent institution of the Member State whose legislation is applicable thereof , whenever possible in advance .
That institution shall without delay make information concerning the legislation applicable to the person concerned , pursuant to Article 11 ( 3 ) ( b ) or Article 12 of the [ Regulation No 883 / 2004 ] , available to the person concerned and to the institution designated by the competent authority of the Member State in which the activity is pursued . ’ 15 During the period concerned , the second sentence of Article 15 ( 1 ) of Regulation No 987 / 2009 was amended by Regulation No 465 / 2012 .
That amended version of that provision is worded as follows : That institution shall issue the attestation referred to in Article 19 ( 2 ) of the [ Regulation No 987 / 2009 ] to the person concerned and shall without delay make information concerning the legislation applicable to that person , pursuant to Article 11 ( 3 ) ( b ) or Article 12 of the [ Regulation No 883 / 2004 ] , available to the institution designated by the competent authority of the Member State in which the activity is pursued . ’ 16 Under the same title , Article 19 , entitled ‘ Provision of information to persons concerned and employers ’ , is worded as follows : ‘ 1 .
The competent institution of the Member State whose legislation becomes applicable pursuant to Title II of [ Regulation No 883 / 2004 ] shall inform the person concerned and , where appropriate , his employer ( s ) of the obligations laid down in that legislation .
It shall provide them with the necessary assistance to complete the formalities required by that legislation . 2 .
At the request of the person concerned or of the employer , the competent institution of the Member State whose legislation is applicable pursuant to Title II of [ Regulation No 883 / 2004 ] shall provide an attestation that such legislation is applicable and shall indicate , where appropriate , until what date and under what conditions . ’ 17 Under Article 20 in Title II , headed ‘ Cooperation between institutions ’ : ‘ 1 .
The relevant institutions shall communicate to the competent institution of the Member State whose legislation is applicable to a person pursuant to Title II of [ Regulation No 883 / 2004 ] the necessary information required to establish the date on which that legislation becomes applicable and the contributions which that person and his employer ( s ) are liable to pay under that legislation . 2 .
The competent institution of the Member State whose legislation becomes applicable to a person pursuant to Title II of [ Regulation No 883 / 2004 ] shall make the information indicating the date on which the application of that legislation takes effect available to the institution designated by the competent authority of the Member State to whose legislation that person was last subject . ’ 18 Under Title V , entitled ‘ Miscellaneous transitional and final provisions ’ , Article 89 , entitled ‘ Information ’ , provides in paragraph 3 : ‘ The competent authorities shall ensure that their institutions are aware of and apply all the [ Union ] provisions , legislative or otherwise , including the decisions of the Administrative Commission , in the areas covered by and within the terms of [ Regulation No 883 / 2004 ] and [ Regulation No 987 / 2009 ] . ’
The dispute in the main proceedings and the questions referred for a preliminary ruling 19 Alpenrind is active in the livestock and meat sector .
Since 1997 it has operated an abattoir in Salzburg , which it leases . 20 In 2007 , Alpenrind , formerly S GmbH , entered into a contract with Martin-Meat , established in Hungary , under which Martin-Meat undertook to cut and pack 25 sides of beef per week .
The work was performed at the premises of Alpenrind by workers posted to Austria .
On 31 January 2012 , Martin-Meat discontinued its meat-cutting operations and thereafter performed slaughterings for Alpenrind . 21 On 24 January 2012 , Alpenrind concluded a contract with Martimpex , also established in Hungary , under which Martimpex undertook to cut 55 000 tonnes of beef for Alpenrind in the period from 1 February 2012 to 31 January 2014 .
The work was performed at the premises of Alpenrind ( which it had leased , including all factory equipment ) by workers posted to Austria .
Martimpex took charge of the sides of beef which were then cut and packed by its workers . 22 From 1 February 2014 , Alpenrind again concluded an agreement with Martin-Meat for the latter to carry out the meat cutting work at the abovementioned premises . 23 For the more than 250 workers used by Martimpex during the period at issue , the competent Hungarian social security institution issued , sometimes retroactively and sometimes in cases where the Austrian social insurance institution had already determined that the worker concerned was subject to compulsory insurance under Austrian legislation , certificates attesting that the Hungarian social security regime was applicable to those workers , in accordance with Articles 11 to 16 of Regulation No 883 / 2004 and Article 19 of Regulation No 987 / 2009 .
Each of those certificates stated that Alpenrind was the employer at the place where the work was carried out . 24 The Salzburg Regional Health Insurance Fund determined that the abovementioned workers were subject to compulsory insurance in Austria during the period at issue , in accordance with Paragraph 4 ( 1 ) and ( 2 ) of the Allgemeine Soialversicherungsgesetz ( Social Security Code ) and Paragraph 1 ( 1 ) ( a ) of the Arbeitslosenversicherungsgesetz ( Law on Unemployment Insurance ) , based on the work carried out for the joint undertaking of Alpenrind , Martin-Meat and Martimpex . 25 By the contested judgment before the referring court , the Verwaltungsgericht ( Administrative Court , Austria ) annulled the decision of the Salzburg Regional Health Insurance Fund on the ground that the Austrian social security institution was not competent .
The Verwaltungsgericht ( Administrative Court ) based its decision , inter alia , on the fact that the competent Hungarian social security institution issued to each of the persons subject to compulsory insurance in Austria an A1 certificate establishing that that person was , from a specific date , employed in Hungary by Martimpex as a worker subject to compulsory insurance and was probably posted to Austria to work for Alpenrind for the period indicated in each certificate , including the period at issue . 26 In the appeal brought against that judgment before the referring court , the Salzburg Regional Health Insurance Fund and the Minister reject the idea that the A1 certificates have absolute binding effect .
That binding effect is based , in their view , on observance of the principle of sincere cooperation between Member States , enshrined in Article 4 ( 3 ) TEU .
They consider that the Hungarian social security institution has breached that principle . 27 According to the referring court , Hungary observed that only a judicial decision could resolve the stalemate , which also affects Hungary , and that national Hungarian law prevents a withdrawal of the A1 certificates .
The Salzburg Regional Health Insurance Fund takes the view that it does not have standing to bring proceedings in Hungary .
In its view , the only way to bring about a decision in the matter is a ruling that insurance is compulsory in Austria , notwithstanding the A1 certificates issued by the competent Hungarian institution . 28 The referring court observes that the Minister has produced documents establishing that , on 20 and 21 June 2016 , the Administrative Commission concluded that Hungary had wrongly declared itself competent with regard to the workers concerned and , therefore , that the A1 certificates should be withdrawn . 29 The referring court considers that the dispute before it raises certain questions concerning the interpretation of EU law . 30 In particular , that court observes , first , that according to the wording of Article 5 of Regulation No 987 / 2009 , documents showing the position of a person for the purposes of the application of Regulations Nos 883 / 2004 and 987 / 2009 and supporting evidence on the basis of which the documents have been issued are only binding on the social security institutions of the Member States .
Therefore , that court has doubts as to whether the binding effect also applies to the national courts . 31 Second , the referring court asks about the possible impact of the conduct of the proceedings before the Administrative Commission on the binding nature of the A1 certificates .
In particular , that court wishes to know whether , after proceedings before the Administrative Commission which failed to reach an agreement or to a decision to withdraw the A1 certificates , those certificates are still binding and whether proceedings to determine whether insurance is compulsory should be instituted . 32 The referring court also observes that , in the present case , some A1 certificates were issued retroactively , and some only after the Austrian institution had already determined that insurance was compulsory .
That court asks whether the issue of such documents also has a binding effect retroactively where compulsory insurance in the host Member State has already been formally established .
According to that court , it is conceivable that the documents issued by the Austrian institutions establishing compulsory insurance are also ‘ documents ’ within the meaning of Article 5 ( 1 ) of Regulation No 987 / 2009 , so that they produce a binding effect under that provision . 33 Third , if , in certain circumstances , A1 certificates have only a limited binding effect , the referring court asks whether the condition , laid down in Article 12 ( 1 ) of Regulation No 883 / 2004 , that the person posted continues to be subject to the legislation of the Member State in which his employer is established , provided that he is not sent to replace another person , must be interpreted as meaning that a worker cannot be replaced immediately by another newly posted worker , regardless of which undertaking or Member State from which the newly posted worker originates .
Although that strict interpretation may help to avoid abuse , it does not necessarily follow from the wording of Article 12 ( 1 ) of Regulation No 883 / 2004 . 34 In those circumstances the Verwaltungsgerichtshof ( Supreme Administrative Court , Austria ) decided to stay proceedings and to refer to the Court the following questions for a preliminary ruling : ‘ ( 1 ) Does Article 5 of Regulation No 987 / 2009 , which establishes the procedure for implementing Article 19 ( 2 ) of [ that regulation ] , also apply in proceedings before a court or tribunal within the meaning of Article 267 TFEU ?
( 2 ) If the first question is answered in the affirmative : ( a ) does the aforementioned binding effect also apply where proceedings had previously taken place before the [ Administrative Commission ] and such proceedings did not result either in agreement or in a withdrawal of the contested documents ?
( b ) does the aforementioned binding effect also apply where an A1 certificate is not issued until after the host Member State has formally determined that insurance is compulsory under its legislation ?
Does the binding effect also apply retroactively in such cases ?
( 3 ) In the event that , under certain conditions , the binding effect of documents within the meaning of Article 19 ( 2 ) of Regulation No 987 / 2009 is limited : Does it contravene the prohibition on replacement set forth in Article 12 ( 1 ) of Regulation No 883 / 2004 if the replacement occurs not in the form of a posting by the same employer but instead by another employer ?
Does it matter whether ( a ) the second employer has its registered office in the same Member State as the first employer , and ( b ) the first and the second posting employers share staffing and / or organisational resources ? ’
In particular , although the principle of legal certainty is mentioned , in recital 6 of Regulation No 987 / 2009 , the principle of the affiliation of employees to a single social security scheme is set out in recital 15 and Article 11 ( 1 ) of Regulation No 883 / 2004 , while the importance of the principle of sincere cooperation derives from Article 76 of Regulation No 883 / 2004 and recital 2 and Article 20 of Regulation No 987 / 2009 . 46 If it were to be accepted that , apart from cases of fraud or abuse of rights , the competent national institution could , by bringing proceedings before a court of the host Member State of the worker concerned to which that institution belongs , have an A1 certificate declared invalid , there would be a risk that the system based on sincere cooperation between the competent institutions of the Member States would be undermined ( see , to that effect , as regards E 101 certificates , judgments of 26 January 2006 , Herbosch Kiere , C ‑ 2 / 05 , EU : C : 2006 : 69 , paragraph 30 ; of 27 April 2017 , A-Rosa Flusschiff , C ‑ 620 / 15 , EU : C : 2017 : 309 , paragraph 47 ; and of 6 February 2018 , Altun and Others , C ‑ 359 / 16 , EU : C : 2018 : 63 , paragraphs 54 , 55 , 60 and 61 ) . 47 Having regard to the foregoing , the answer to the first question is that Article 5 ( 1 ) of Regulation No 987 / 2009 , read together with Article 19 ( 2 ) thereof , must be interpreted as meaning that an A1 certificate , issued by the competent institution of a Member State under Article 12 ( 1 ) of Regulation No 883 / 2004 , binds not only the institutions of the Member State in which the activity is carried out , but also the courts of that Member State .
The second question The first part of the second question 48 By the first part of the second question , the referring court asks essentially whether Article 5 ( 1 ) of Regulation No 987 / 2009 , read together with Article 19 ( 2 ) thereof , must be interpreted as meaning that an A1 certificate , issued by the competent institution of a Member State under Article 12 ( 1 ) of Regulation No 883 / 2004 , binds both the social security institutions of the Member State in which the activity is carried out and the courts of that Member State so long as that certificate has not been withdrawn or declared invalid by the Member State in which it was issued , even if the competent authorities of the latter Member State and the Member State in which the activity is carried out have brought the matter before the Administrative Commission which held that that certificate has been incorrectly issued and must be withdrawn . – Admissibility 49 The Hungarian Government submits , primarily , that the first part of the second question is hypothetical since , in the present case , the Administrative Commission found a solution which was accepted by both the Republic of Austria and Hungary and that the Hungarian authorities indicated that , as a consequence , they were prepared to withdraw the A1 certificates at issue . 50 In that regard it must be recalled , as the Court has consistently held , that it is solely for the national court before which the dispute has been brought , and which must assume responsibility for the subsequent judicial decision , to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it refers to the Court .
Consequently , where the questions submitted concern the interpretation or the validity of a rule of EU law , the Court is in principle bound to give a ruling ( judgment of 7 February 2018 , American Express , C ‑ 304 / 16 , EU : C : 2018 : 66 , paragraph 31 and the case-law cited ) . 51 It follows that questions relating to EU law enjoy a presumption of relevance .
The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose , where the problem is hypothetical , or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ( judgment of 7 February 2018 , American Express , C ‑ 304 / 16 , EU : C : 2018 : 66 , paragraph 32 and the case-law cited ) . 52 In the present case , it is apparent from the file before the Court that the Administrative Commission issued an opinion on 9 May 2016 , according to which Article 12 ( 1 ) of Regulation No 883 / 2004 must be interpreted as meaning that the A1 certificates at issue in the main proceedings should never have been issued and that they should be withdrawn , that opinion being subsequently approved by that commission during its 347th meeting on 20 and 21 June 2016 . 53 However , it is common ground that those certificates have not been withdrawn by the competent institution in Hungary or declared invalid by the Hungarian courts . 54 It is also clear from the file submitted to the Court that the Republic of Austria and Hungary have not reached an agreement concerning the conditions for a possible withdrawal of those certificates or , at least , with regard to some of them .
Furthermore , it appears from the file that the application of that opinion has been suspended in light of the present reference for a preliminary ruling in the context of which the Hungarian Government submits , inter alia , that the competent Hungarian institution rightly issued the A1 certificates at issue in the main proceedings under Article 12 ( 1 ) of Regulation No 883 / 2004 . 55 It follows that the factual circumstances characterising the dispute in the main proceedings , as they appear from the evidence submitted to the Court , correspond to the facts in the first part of the second question referred .