# C_2023155EN.01001301.xml

| 2.5.2023 | EN | Official Journal of the European Union | C 155/13 |
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2.5.2023

EN

Official Journal of the European Union

C 155/13

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Judgment of the Court (Second Chamber) of 2 March 2023 (request for a preliminary ruling from the Hof van Cassatie — Belgium) — Criminal proceedings against FU, DRV Intertrans BV (C-410/21), and Verbraeken J. en Zonen BV, PN (C-661/21)

(Joined Cases C-410/21 and C-661/21, (1) DRV Intertrans and Others)

(References for a preliminary ruling - Migrant workers - Social security - Legislation applicable - Regulation (EC) No 987/2009 - Article 5 - A1 certificate - Provisional withdrawal - Binding effect - Certificate fraudulently obtained or relied on - Regulation (EC) No 883/2004 - Article 13(1)(b)(i) - Persons normally pursuing an activity as an employed person in two or more Member States - Applicability of the legislation of the Member State in which the registered office is situated - Concept of ‘registered office’ - Undertaking which has obtained a Community licence for transport under Regulation (EC) No 1071/2009 and Regulation (EC) No 1072/2009 - Effect - Licence fraudulently obtained or relied on)

(2023/C 155/15)

Language of the case: Dutch

Referring court

Hof van Cassatie

Parties in the main criminal proceedings

FU, DRV Intertrans BV (C-410/21), and Verbraeken J. en Zonen BV, PN (C-661/21)

Operative part of the judgment

| 1. | Article 5 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012,
  must be interpreted as meaning that an A1 certificate issued by the competent institution of a Member State is binding upon the institutions and courts of the Member State in which the work is carried out, including where, following a request for reconsideration and withdrawal sent by the competent institution of that latter Member State to the issuing institution, that institution has declared that it has provisionally suspended the binding effects of that certificate until such time as it decides definitively on that request. However, in such circumstances, a court of the Member State in which the work is carried out, seised in the context of criminal proceedings brought against persons suspected of having fraudulently obtained or used the same A1 certificate, may find that there has been fraud and consequently disregard that certificate, for the purposes of those criminal proceedings, provided that, first, a reasonable period has elapsed without the issuing institution having reconsidered the grounds for issuing that certificate and having adopted a decision on the specific evidence submitted by the competent institution in the host Member State, which gave rise to the view that that certificate had been obtained or invoked fraudulently, as the case may be, by cancelling or withdrawing the certificate in question and, second, that the guarantees inherent in the right to a fair trial which must be afforded to those persons have been respected. |
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1.

Article 5 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012,

must be interpreted as meaning that an A1 certificate issued by the competent institution of a Member State is binding upon the institutions and courts of the Member State in which the work is carried out, including where, following a request for reconsideration and withdrawal sent by the competent institution of that latter Member State to the issuing institution, that institution has declared that it has provisionally suspended the binding effects of that certificate until such time as it decides definitively on that request. However, in such circumstances, a court of the Member State in which the work is carried out, seised in the context of criminal proceedings brought against persons suspected of having fraudulently obtained or used the same A1 certificate, may find that there has been fraud and consequently disregard that certificate, for the purposes of those criminal proceedings, provided that, first, a reasonable period has elapsed without the issuing institution having reconsidered the grounds for issuing that certificate and having adopted a decision on the specific evidence submitted by the competent institution in the host Member State, which gave rise to the view that that certificate had been obtained or invoked fraudulently, as the case may be, by cancelling or withdrawing the certificate in question and, second, that the guarantees inherent in the right to a fair trial which must be afforded to those persons have been respected.

| 2. | Article 13(1)(b)(i) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation No 465/2012, read in the light of Article 3(1)(a) and Article 11(1) of Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC, and of Article 4(1)(a) of Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules for access to the international road haulage market,
  must be interpreted as meaning that the fact that a company holds a Community licence for road transport issued by the competent authorities of a Member State does not constitute irrefutable proof that that company’s registered office is in that Member State for the purpose of determining, in accordance with Article 13(1)(b)(i) of Regulation No 883/2004, as amended by Regulation No 465/2012, which national legislation on social security is applicable. |
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2.

Article 13(1)(b)(i) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation No 465/2012, read in the light of Article 3(1)(a) and Article 11(1) of Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC, and of Article 4(1)(a) of Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules for access to the international road haulage market,

must be interpreted as meaning that the fact that a company holds a Community licence for road transport issued by the competent authorities of a Member State does not constitute irrefutable proof that that company’s registered office is in that Member State for the purpose of determining, in accordance with Article 13(1)(b)(i) of Regulation No 883/2004, as amended by Regulation No 465/2012, which national legislation on social security is applicable.

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(1)  OJ C 391, 27.9.2021.

OJ C 84, 21.2.2022.

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