Judgment;Abstract — ECLI:EU:C:2023:138
Date: 2023-03-02
Language of the case: Dutch
Court formation: Second Chamber
Subject matter: Right of establishment;Internal market - Principles;Freedom to provide services;Social security for migrant workers;Transport;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-410/21 – 1 
Case C-410/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
5 July 2021 
Referring court:  
Hof van Cassatie (Belgium) 
Date of the decision to refer:  
29 June 2021 
Appellants:  
FU 
DRV Intertrans BV 
Respondent:  
Openbaar Ministerie 
Subject matter of the main proceedings 
The main proceedings concern the appeal in cassation brought by FU and DRV 
Intertrans BV before the referring court against the judgment of 11 February 2021 
of the hof van beroep te Antwerpen (correctionele kamer) (Antwerp Court of 
Appeal (Criminal Chamber)) which found them guilty, inter alia, of fraud and 
imposed a penalty on them.  
Subject matter and legal basis of the request  
In this request for a preliminary ruling under Article 267 TFEU, the referring 
court asks the Court of Justice of the European Union (‘the Court of Justice’), in 
essence, what the legal value is of an A1 document which has been provisionally 
withdrawn by the issuing Member State pending criminal proceedings in the 
Member State of employment and whether the acquisition of a road transport 
licence in a Member State demonstrates that the undertaking concerned has 
established an effective and stable head office in that Member State within the 
NL EN
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-410/21 
 
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meaning of Article 13 of Regulation No 883/2004/EC, on the basis of which the 
applicable social security scheme can be determined.  
Question referred for a preliminary ruling  
1. Must 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 to be interpreted as meaning that: 
– if, following a request by the authorities of the Member State of employment 
for the retroactive withdrawal of the ‘Al’ certificates, the authorities of the 
Member State which issued those A1 certificates confine themselves to 
withdrawing those certificates provisionally, stating that they no longer have 
any binding force, so that the criminal proceedings in the Member State of 
employment can continue, and that a final decision will only be taken by the 
Member State that issued the A1 certificates once the criminal proceedings in 
the Member State of employment have been finally concluded, the presumption 
attached to the Al certificates that the workers concerned are properly affiliated 
to the social security system of that issuing Member State ceases to apply and 
those Al certificates are no longer binding on the authorities of the Member 
State of employment; 
– if the answer to that question is in the negative, the authorities of the Member 
State of employment may, in the light of the case-law of the Court of Justice of 
the European Union, disregard the Al certificates at issue on the grounds of 
fraud? 
2. Must Article 13(1)(b)(i) of Regulation (EC) No 883/2004 of 29 April 2004 
of the European Parliament and of the Council of 29 April 2004 on the 
coordination of social security systems, Articles (3)(1)(a) and 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 Article (4)(1)(a) of Regulation (EC) No 1072/2009 of the European 
Parliament and of the Council of 21 October 2009 on common rules for access to 
the international road haulage market be interpreted as meaning that it necessarily 
follows from the fact that an undertaking which obtains a road transport 
authorisation in a Member State of the European Union pursuant to Regulation 
(EC) No 1071/2009 and Regulation (EC) No 1072/2009 and which therefore must 
have an effective and stable establishment in that Member State, that it has been 
irrefutably demonstrated that its registered office is established in that Member 
State, as referred to in Article 13(1) of the aforementioned Regulation 
No 883/2004/EC, for the purposes of determining the applicable social security 
system and that the authorities of the Member State of employment are bound by 
that determination? 
DRV INTERTRANS 
 
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Provisions of European Union law relied on 
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), Article 13.  
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 (OJ 2009 L 284, p. 1), 
Article 5.  
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 (OJ 2009 L 300, p. 51), Articles 3 and 11.  
Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 
21 October 2009 on common rules for access to the international road haulage 
market (OJ 2009 L 300, p. 72), Article 4.  
Provisions of national law relied on 
Article 66 Strafwetboek (Criminal Code) 
Article 235 Sociaal Strafwetboek (Social Criminal Code) 
Succinct presentation of the facts and procedure in the main proceedings 
1 FU is the manager of DRV Intertrans BV, which has its registered office in 
Belgium and operates in the transport sector. FU’s spouse is the manager of 
Immo-Des BV, which has its registered office in Belgium and owns an industrial 
building (with, inter alia, parking, maintenance and tank facilities). FU officially 
resides at an address in the Grand Duchy of Luxembourg where the head office of 
the transport company Mic Cargo Sarl is also situated. FU and his wife have also 
established the company Md Intercargo sro, which also operates in the transport 
sector, in Slovakia.  
2 Investigations have shown, however, that both the Luxembourg and Slovak 
companies are in fact managed from Belgium and that most of the transport 
activities are carried out in Belgium. According to the Belgian Sociale Inspectie 
(Social Inspectorate; ‘Sociale Inspectie’), the Slovak company was set up as a 
subcontractor of DRV Intertrans BV and the Luxembourg company Mic Cargo 
sarl for the purpose of creating a cheap labour force through the secondment of 
workers. However, according to the Sociale Inspectie, this activity focuses 
exclusively on the Belgian market without any relevant activity in Slovakia, the 
country of formal establishment.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-410/21 
 
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3 In the light of the foregoing, FU and DRV Intertrans BV were summoned to 
appear before the correctionele rechtbank West-Vlaanderen, afdeling Brugge 
(West Flanders Criminal Court, Bruges Division) on charges, inter alia, of fraud. 
In order to avoid having to pay social security contributions to the Rijksdienst 
voor Sociale Zekerheid (National Social Security Office), they had falsely claimed 
that the employees in question had been posted to Belgium by a Slovakian 
company, whereas that company does not in fact have its head office in Slovakia 
or at least does not carry out any substantial activity in Slovakia (Article 66 of the 
Criminal Code and Article 235 of the Social Security Code).  
4 While those criminal proceedings were in progress, the Belgian authorities asked 
the Slovak authorities to retroactively withdraw the A1 posting documents that 
they had issued. The Slovak authorities then provisionally withdrew all the 
documents, stating that those documents no longer had any binding force so that 
the Belgian criminal proceedings could continue and that they would only take a 
final decision on the legislation applicable to the workers concerned once those 
proceedings had been concluded.  
5 In a judgment of 11 February 2021, the Antwerp Court of Appeal (Criminal 
Chamber) found FU and DRV Intertrans BV guilty of fraud (inter alia), and 
sentenced them on, inter alia, the following grounds:  
– The A1 secondment documents issued were provisionally withdrawn by the 
Slovak authorities and are not binding. The suspension of those documents 
means that they have no evidential value with regard to the applicable social 
security system.  
– A Community transport licence which has not been withdrawn has no bearing 
on the applicable social security system and does not result in the Court of 
Appeal being obliged to assume that, as far as social security is concerned, Md 
Intercargo sro had an effective and stable establishment in Slovakia.  
6 FU and DRV Intertrans BV have lodged an appeal in cassation before the 
referring court against that judgment.  
Essential arguments of the parties in the main proceedings 
First question 
7 According to FU and DRV Intertrans BV, that judgment infringes Article 5 of 
Regulation No 987/2009 because it has wrongly held that the A1 documents of the 
employees concerned have been suspended and therefore no longer have any 
value. That article does not allow the issuing Member State, in this case Slovakia, 
to withdraw or suspend an A1 document provisionally, pending the outcome of 
legal proceedings in another Member State. Under that provision, an issuing 
country can only maintain, withdraw or declare invalid an A1 document.  
DRV INTERTRANS 
 
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Second question 
8 According to FU and DRV Intertrans BV, the judgment has incorrectly held that 
obtaining an authorisation in a Member State pursuant to the scheme provided for 
in Regulations No 1071/2009 and No 1072/2009 does not constitute proof that the 
undertaking has an effective and stable establishment in that Member State. The 
judgment also fails to recognise the irrefutable nature of that proof, since only the 
issuing Member State has the power to penalise any infringements and to 
withdraw the authorisation. Furthermore, the judgment wrongly fails to recognise 
the link between that proof and the concept of the registered office in Article 13(1) 
of Regulation No 883/2004, in particular when assessing the registered office of 
the employer.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
First question  
9 Article 5 of Regulation No 987/2009 determines the legal value of a document 
and supporting evidence issued in another Member State. Pursuant to that 
provision, such a document is binding on the Member State of employment as 
long as the issuing Member State has not withdrawn it or declared it invalid. 
Where there is doubt about the validity or accuracy of the document, the Member 
State of employment must ask the issuing Member State for the necessary 
clarification and, where appropriate, the withdrawal of the document. Where 
appropriate, the issuing Member State must reconsider the grounds for issuing the 
document and, if necessary, withdraw it.  
10 It is clear, inter alia, from the case-law of the Court of Justice that an A1 
certificate establishes a presumption of proper affiliation to the social security 
scheme of the issuing Member State (judgment of 26 January 2006, Herbosch 
Kiere NV, Case C-2/05, EU:C:2006:69). Such a certificate is in principle binding 
on a court of the Member State of employment, which is not entitled to scrutinise 
its validity. (judgments of 10 February 2000, Fitzwilliam Executive Search Ltd, 
C-202/97, EU:C:2000:75; 27 April 2017, A-Rosa Flussschiff GmbH, C-620/15, 
EU:C:2017:309 and 6 February 2018, Altun, C-359/16, EU:C:2018:63).  
11 The question therefore arises whether this presumption of proper affiliation and 
the binding nature of such a certificate cease to apply if, as in the present case, 
following a request for withdrawal, the issuing Member State provisionally 
withdraws the A1 certificates concerned, stating that they no longer have any 
binding force, so that the criminal proceedings in the Member State of 
employment can continue and that it would only take a definitive position in that 
regard after those criminal proceedings have been finally concluded. If not, the 
question arises whether the Member State of employment may, in the light of the 
case-law of the Court of Justice, disregard the certificates in question on the 
grounds of fraud.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-410/21 
 
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12 The referring court is of the view that an interpretation of the aforementioned 
provision of European Union law is required in order for a ruling to be given. 
Second question 
13 Under Article 13(1)(b)(i) of Regulation No 883/2004, a person who is employed 
by one undertaking or employer, in more than one Member State, and does not 
pursue a substantial part of his/her activity in the Member State of residence, will 
be subject to the legislation of the Member State in which the registered office or 
place of business of the undertaking or employer is situated. Under 
Articles 3(1)(a) and 11(1) of Regulation No 1071/2009, a transport undertaking 
must have an effective and stable establishment in a Member State in order to be 
authorised to engage in the occupation of road transport operator. Under 
Article 4(1)(a) of Regulation 1072/2009, a Member State will issue a Community 
licence to a haulier carrying goods by road for hire or reward and who is 
established in that Member State in accordance with Community legislation and 
the national legislation of that Member State.  
14 The question then also arises whether it follows indisputably from the fact that an 
undertaking obtains an authorisation in a Member State pursuant to Regulation 
No 1071/2009 and Regulation No 1072/2009 and must therefore have an effective 
and stable establishment in that Member State, that the undertaking in question is 
also considered, in respect of social security, to be established in that Member 
State within the meaning of Article 13 of Regulation No 883/2004, which would 
then make it possible to determine the applicable social security system, and 
whether the Member State of employment would be bound by that.  
15 The referring court is of the view that an interpretation of the aforementioned 
provision of European Union law is required in order for a ruling to be given.