Information;Order — ECLI:EU:C:2023:952
Date: 2023-11-23
Language of the case: French
Court formation: Seventh Chamber
Subject matter: Social security for migrant workers;Transport;Free movement of workers
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-628/22 – 1 
Case C-628/22 
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: 
3 October 2022 
Referring court: 
Cour d’appel de Liège (Belgium) 
Date of the decision to refer: 
9 June 2022 
Appellants: 
DU 
EX 
FY 
Other interested party: 
Ministère public 
  
I Subject matter and facts of the dispute 
1 The liberalisation of international road haulage has given rise to various forms of 
social dumping. The negative effects of these practices, in political, economic, 
social and human terms, have been studied extensively and justify the importance 
which is attached to combating abuses of social security and social security fraud. 
2 International road haulage is governed, in particular, by Regulation No 1071/2009 
establishing common rules concerning the conditions to be complied with to 
pursue the occupation of road transport operator, 1 under which the pursuit of the 
occupation of road transport operator is subject to the requirement of having an 
 
1 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). 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-628/22 
 
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effective and stable establishment in a Member State, and by Regulation 
No 1072/2009 on common rules for access to the international road haulage 
market, 2 which provides that every Member State is to issue to hauliers 
established in their territory the Community licence which they must have in order 
to carry out international haulage in the European Economic Area and 
Switzerland. 
3 The concept of Member State of establishment also plays an important role in 
Regulation No 883/2004 on the coordination of social security systems (‘the basic 
regulation’), 3 which enshrines the principle that individuals must be affiliated to 
only one social security scheme and determines which Member State’s legislation 
is applicable. As regards, more specifically, individuals who normally pursue an 
activity, such as international road haulage, as an employed person in two or more 
Member States, the basic regulation provides that employees who do not pursue a 
substantial part of their activity in their Member State of residence are subject to 
the legislation of the Member State in which the registered office or place of 
business of the undertaking or employer is situated. 
4 In addition to the authorisation to pursue the occupation of road transport 
operator, referred to in Regulation No 1071/2009, and the Community licence, 
referred to in Regulation No 1072/2009, the employer’s Member State of 
establishment may therefore also find it necessary to provide individuals who are 
subject to its legislation, in accordance with the basic regulation, with a document 
attesting to their affiliation to its social security scheme. This standard form 
document was previously called the ‘E 101 form’ and is now known as the 
‘portable document A1’ (‘A1 certificate’).  
5 DU, EX and FY are shareholders and/or directors of three Belgian-law companies 
engaged in national and international road haulage (CAP EXPRESS S.A., 
IMMO.-V SPRL and TRUCK PARK SPRL, ‘the Belgian companies’). 
6 Those companies came to the attention of the Belgian judicial authorities as a 
result of various roadside checks carried out in Belgium in the course of 2013 and 
involving lorries driven by Romanian or Slovak nationals the trailers of which 
were registered in Belgium in the name of one of the Belgian companies and the 
tractor units of which were registered in Slovakia in the name of one of various 
Slovak-law companies, namely RAILROADTRANS s.r.o., the equity of which 
DU purchased in 2009, ONEWAYTRANS s.r.o., which FY established in 2010, 
and TRANSVERS s.r.o., which DU established in 2012 (‘the Slovak companies’). 
 
2 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 (recast) (OJ 2009 
L 300, p. 72). 
3 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). 
MINISTÈRE PUBLIC AND OTHERS 
 
3 
7 The Belgian social security inspectorate, called upon to help with the 
investigation, gathered various pieces of information and made known their 
suspicions as to the fictitious nature of the Slovak companies, whose transport 
operations appeared in fact to be organised from Belgium by the Belgian 
companies, as part of a dishonest scheme designed to circumvent the payment to 
the Office national de la sécurité sociale (the Belgian social security office, ‘the 
ONSS’) of the social security contributions due for those employees. 
8 Those suspicions were heightened on 3 December 2014 when a Romanian driver 
brought a complaint before the social security inspectorate, stating that he was 
officially employed by the Slovak-law company RAILROADTRANS, but was in 
reality working for the Belgian companies of DU, EX and FY. 
9 Further to that information, a criminal investigation was commenced on 
20 January 2015, which resulted in searches being carried out at the various 
registered offices of the Belgian companies and at the homes of DU, EX and FY. 
During the search carried out at the registered office shared by TRUCK PARK 
and IMMO.-V, seventeen drivers and two mechanics of Romanian nationality 
were found to be living in their lorries or in containers that had been fitted out. 
Numerous documents relating to the Slovak companies were also found. 
International letters rogatory were executed at the registered offices of the Slovak 
companies, whereupon it was discovered that the offices were empty and that no 
transport activity was being carried on. 
10 At the request of the Belgian public prosecution service, the federal social security 
authority wrote to Sociálna poisťovňa (Social Insurance Agency, Slovakia) on 
12 May 2016, requesting the withdrawal of the A1 certificates that had been 
issued to the drivers employed by the Slovak companies and the termination of 
their affiliation to the Slovak social security scheme. 
11 On 15 May 2017, the Slovak Social Insurance Agency provisionally withdrew the 
A1 certificates, for such time as the drivers were covered by the Belgian social 
security system. 
12 On 7 December 2018, the ONSS informed the Slovak Social Insurance Agency 
that all of the employees concerned had been effectively affiliated to the Belgian 
social security scheme. 
13 On 6 March 2019, the Slovak Social Insurance Agency replied that, despite the 
affiliation of those employees to the Belgian social security scheme, it would not 
definitively withdraw the A1 certificates until the judicial proceedings were 
concluded and then only if the investigators’ findings were confirmed by the court 
hearing the case. 
14 Once the Belgian authorities had closed their investigation, DU, EX, and FY were 
committed for trial by the Tribunal correctionnel de Liège (Criminal Court, Liège, 
Belgium) on various charges concerning non-compliance with Belgian social 
security legislation. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-628/22 
 
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15 By judgment of 14 September 2020, the Criminal Court took note of the 
admission of the defendants DU, EX and FY to the following facts: 
– the drivers took possession of their tractor units in Belgium after 
having passed a Belgian driving test, took their rest in Belgium and 
only returned to their home country every few weeks; 
– orders and invoices were processed in Belgium, transport operations 
were supervised from Belgium, the lorries were maintained and 
serviced in Belgium and refuelled mainly in Belgium; 
– almost all loading took place in Belgium and deliveries were made, for 
the most part, in countries neighbouring Belgium; 
– with the exception of the odd delivery in Slovakia, the only trips to 
Slovakia were for the roadworthiness testing of the tractor units 
registered in Slovakia; 
– first DU, then FY, had had recourse to a Slovak company which had 
offered to provide them with rental premises, a number of lorry 
parking spaces, company formations, the services of a Slovak 
individual having the necessary professional skills to obtain a transport 
licence, book-keeping services and the correct payment of various 
taxes and the salaries and the social security contributions and dues of 
the drivers, which were lower than they would have been in Belgium; 
– the offices of the Slovak companies were empty and no transport 
activity was being carried on; 
– the only employee in Slovakia, a Belgian national, was essentially 
engaged in conveying transport orders to the drivers from Slovakia, 
while all decisions regarding the organisation of transport were taken 
in Belgium. 
16 The Criminal Court also found that most of the drivers encountered in the course 
of the searches at the registered offices of the Belgian companies had never been 
to Zvolen, in Slovakia, where their employment contracts were supposed to have 
been signed, and had in fact concluded those contracts in Belgium, which, 
according to the court, demonstrated the intention of the defendants DU, EX and 
FY to circumvent the Belgian social security system. 
17 The Criminal Court deduced from all that that the Slovak companies, although 
certainly established in Slovakia legally, had never carried on any transport 
activities there, their sole purpose being to reduce the transport costs of the 
Belgian companies, in particular, by enabling them to pay lower social security 
contributions by employing Slovak, then Romanian drivers who in reality worked 
in Belgium for the Belgian companies. Those workers should have been affiliated 
to the Belgian social security system, in accordance with the basic regulation, and 
MINISTÈRE PUBLIC AND OTHERS 
 
5 
the Belgian companies should have paid social security contributions to the ONSS 
on their account. 
18 The Criminal Court consequently found DU, EX and FY guilty of various charges 
relating to non-compliance with Belgian social security legislation, gave them 
suspended sentences and fines and ordered them to pay jointly and severally to the 
ONSS the provisional, undisputed sum of EUR 4 605 682.10 in respect of the 
social security contributions they had evaded, contribution surcharges and interest. 
19 DU, EX and FY brought an appeal against that judgment before the Cour d’appel 
de Liège (Court of Appeal, Liège, Belgium). As regards the offences relating to 
affiliation to Belgian social security, they rely on the Community transport licence 
issued by Slovakia and on the fact that the A1 certificates issued by Slovakia have 
not been definitively withdrawn in support of their argument that their 
organisation was perfectly legal and that the workers concerned should not be 
affiliated to the ONSS. 
II. European Union law  
Regulation (EC) No 883/2004 of the European Parliament and of the Council 
of 29 April 2004 on the coordination of social security systems 
20 Article 11 (‘General rules’) of the basic regulation, which appears under Title II of 
the regulation (‘Determination of the legislation applicable’), provides, in 
paragraph 1 thereof, as follows:  
‘Persons to whom this regulation applies shall be subject to the legislation of 
a single Member State only. Such legislation shall be determined in 
accordance with this title.’ 
21 In accordance with paragraph 1(b)(i) of Article 13 (‘Pursuit of activities in two or 
more Member States’):  
‘A person who normally pursues an activity as an employed person in two or 
more Member States shall be subject: 
… 
(b) if he/she does not pursue a substantial part of his/her activity in the 
Member State of residence: 
(i) to the legislation of the Member State in which the registered office or 
place of business of the undertaking or employer is situated if he/she is 
employed by one undertaking or employer; …’ 
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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 
22 In accordance with paragraphs 1 and 2 of Article 5 (‘Legal value of documents 
and supporting evidence issued in another Member State’) of Regulation 
No 987/2009 (‘the implementing regulation’), 4 
‘1. Documents issued by the institution of a Member State and showing 
the position of a person for the purposes of the application of the basic 
regulation and of the implementing regulation, 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 to be 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.’ 
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 
23 Paragraph 1(a) of Article 3 (‘Requirements for engagement in the occupation of 
road transport operator’) of Regulation No 1071/2009 provides: 
‘1. Undertakings engaged in the occupation of road transport operator 
shall: 
(a) have an effective and stable establishment in a Member State; 
…’ 
24 In that connection, Article 5 (‘Conditions relating to the requirement of 
establishment’) provides as follows: 
‘In order to satisfy the requirement laid down in Article 3(1)(a), an 
undertaking shall, in the Member State concerned: 
 
4  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). 
MINISTÈRE PUBLIC AND OTHERS 
 
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(a) have an establishment situated in that Member State with premises in 
which it keeps its core business documents, in particular its accounting 
documents, personnel management documents, documents containing data 
relating to driving time and rest and any other document to which the 
competent authority must have access in order to verify compliance with the 
conditions laid down in this regulation. …; 
(b) once an authorisation is granted, have at its disposal one or more vehicles 
which are registered or otherwise put into circulation in conformity with the 
legislation of that Member State …; 
(c) conduct effectively and continuously with the necessary administrative 
equipment its operations concerning the vehicles mentioned in point (b) and 
with the appropriate technical equipment and facilities at an operating centre 
situated in that Member State.’ 
25 In accordance with paragraph 1 of Article 11 (‘Examination and registration of 
applications’), 
‘A transport undertaking which complies with the requirements laid down in 
Article 3 shall, upon application, be authorised to engage in the occupation 
of road transport operator. The competent authority shall ascertain that an 
undertaking which submits an application satisfies the requirements laid 
down in that article.’ 
26 Lastly, in accordance with paragraph 1 of Article 12 (‘Checks’), 
‘Competent authorities shall monitor whether undertakings which they have 
authorised to engage in the occupation of road transport operator continue to 
fulfil the requirements laid down in Article 3.’ 
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 (recast) 
27 Article 3 of Regulation No 1072/2009 (‘General principle’) provides: 
‘International carriage shall be carried out subject to possession of a 
Community licence …’ 
28 In accordance with paragraph 1 of Article 4 (‘Community licence’), 
‘The Community licence shall be issued by a Member State, in accordance 
with this regulation, to any haulier carrying goods by road for hire or reward 
who: 
(a) is established in that Member State in accordance with Community 
legislation and the national legislation of that Member State; and 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-628/22 
 
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(b) is entitled in the Member State of establishment, in accordance with 
Community legislation and the national legislation of that Member State 
concerning admission to the occupation of road haulage operator, to carry 
out the international carriage of goods by road.’ 
29 Paragraph 1 of Article 6 (‘Verification of conditions’) provides as follows: 
‘Whenever an application for a Community licence or an application for 
renewal of a Community licence in accordance with Article 4(2) is lodged, 
the competent authorities of the Member State of establishment shall verify 
whether the haulier satisfies or continues to satisfy the conditions laid down 
in Article 4(1).’ 
30 In accordance with paragraph 1 of Article 13 (‘Sanctioning of infringements by 
the host Member State’), 
‘1. Where the competent authorities of a Member State are aware of a 
serious infringement of this regulation or of Community road transport 
legislation attributable to a non-resident haulier, the Member State within 
the territory of which the infringement is ascertained shall transmit to the 
competent authorities of the haulier’s Member State of establishment, as 
soon as possible and at the latest within 6 weeks of their final decision on 
the matter, the following information: 
(a) a description of the infringement and the date and time when it was 
committed; 
(b) the category, type and seriousness of the infringement; and 
(c) the penalties imposed and the penalties executed. 
The competent authorities of the host Member State may request the 
competent authorities of the Member State of establishment to impose 
administrative penalties in accordance with Article 12.’ 
III Arguments of the defendants 
31 DU, EX and FY acknowledge that Article 13 of the basic regulation is applicable, 
but contest the charges relating to non-compliance with Belgian social security 
legislation and do so on the basis of the Community transport licences and the A1 
certificates. 
32 In so far as the Community transport licences are concerned, they maintain that, 
under Slovak law, the law which applies to a company is that of the place where 
its registered office is located. The Slovak companies were validly constituted 
under Slovak law and the competent Slovak authorities issued them with the 
authorisation to pursue the occupation of road transport operator and, 
MINISTÈRE PUBLIC AND OTHERS 
 
9 
subsequently, the Community licence, after verifying that the conditions laid 
down by Regulations Nos 1071/2009 and 1072/2009 had in fact been complied 
with. 
33 The transport licence necessarily implies that the conditions relating to the 
requirement of establishment were fulfilled in the Member State which issued the 
licence. Other Member States cannot call into question that decision to issue the 
licence, although they may initiate the procedure for reporting infringements 
provided for in Article 13(1) of Regulation No 1072/2009. The defendants 
conclude from that that the Slovak companies are not fictitious companies and do 
indeed have a registered office in Slovakia, for the purposes of the basic 
regulation. 
34 In so far as concerns the A1 certificates, DU, EX and FY argue that they were 
issued by the Slovak authorities in accordance with Slovak social security 
legislation. The Slovak Social Insurance Agency withdrew the certificates of the 
workers concerned only provisionally and stated that it would not definitively 
withdraw the A1 certificates until the judicial proceedings were concluded and 
then only if the investigators’ findings were confirmed by the court hearing the 
case. 
35 In accordance with Article 5 of the implementing regulation, A1 certificates must 
be accepted by the institutions of the other Member States unless they have been 
withdrawn or declared to be invalid by the Member State in which they were 
issued. The defendants conclude that the A1 certificates, which have not been 
withdrawn definitively, are still binding upon the Belgian authorities, and so they 
cannot be convicted of any offence of non-compliance with Belgian social 
security legislation. 
IV Assessment of the Court of Appeal, Liège 
36 The Court of Appeal, Liège, takes note of the defendants’ acknowledgment of the 
applicability of Article 13 of Regulation No 883/2004. It has doubts about the 
probative force of the Community licence and the A1 certificates and wonders 
about the potential effect of the principle of prohibition of fraud and abuse of 
rights. 
The Community transport licence 
37 Pursuant to Article 3(1) of Regulation No 1071/2009, undertakings engaged in the 
occupation of road transport operator are required to have an effective and stable 
establishment in a Member State. 
38 Pursuant to Article 11(1) of Regulation No 1071/2009, a transport undertaking 
which complies with the requirements laid down in Article 3 must, upon 
application, be authorised to engage in the occupation of road transport operator. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-628/22 
 
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The competent authority must verify that an undertaking which submits an 
application satisfies the requirements laid down in that article. 
39 Pursuant to Article 4(1)(a) of Regulation No 1072/2009, the Community licence is 
to be issued by a Member State, in accordance with that regulation, to any haulier 
carrying goods by road for hire or reward that is established in that Member State 
in accordance with Community legislation and the national legislation of that 
Member State. 
40 The first question which arises is whether the fact that an undertaking has 
obtained a Community transport licence in a Member State in accordance with 
Regulations Nos 1071/2009 and 1072/2009, and must therefore have an effective 
and stable establishment in that Member State, necessarily means that that licence 
constitutes irrefutable evidence of the establishment of that undertaking’s 
registered office in that Member State, within the meaning of Article 13(1) of the 
basic regulation, for the purposes of determining which social security scheme is 
applicable and whether the authorities of the Member State in which the 
employees work are bound by that identification of the Member State of issue of 
the licence. 
41 That question can only be answered by interpreting Article 13(1)(b)(i) of 
Regulation No 883/2004, Articles 3(1)(a) and 11(1) of Regulation No 1071/2009 
and Article 4(1)(a) of Regulation No 1072/2009. 
42 In order to be able to give a ruling, the Court of Appeal, Liège, considers it 
necessary to refer the first question to the Court of Justice for a preliminary ruling. 
The A1 certificate 
43 On the A1 certificate, the competent institution of the Member State in which the 
undertaking employing the workers concerned is established declares that its own 
social security system will remain applicable to those workers. By virtue of the 
principle that workers must be covered by only one social security system, the 
certificate thus necessarily implies that another Member State’s social security 
system cannot apply (judgment of 27 April 2017, A-Rosa Flussschiff, C-620/15, 
EU:C:2017:309, paragraph 38). 
44 Regulation No 987/2009 affirms the binding nature of the A1 certificate and the 
exclusive competence of the issuing institution to assess the validity of that 
certificate. The A1 certificate establishes a presumption that the workers 
concerned are properly affiliated to the social security system, and that 
presumption is binding on the other Member States, in accordance with the 
principle of mutual trust (judgment of 27 April 2017, A-Rosa Flussschiff, 
C-620/15, EU:C:2017:309, paragraphs 59 and 41). 
45 The principle of mutual trust implies the principle of sincere cooperation, from 
which it follows that any institution of a Member State must carry out a diligent 
MINISTÈRE PUBLIC AND OTHERS 
 
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examination of the application of its own social security system. As a result, it is 
incumbent on the competent institution of the Member State which issued the A1 
certificate to reconsider the grounds for its issue and, if appropriate, to withdraw 
the certificate if the competent institution of the Member State in which the 
employee actually works expresses doubts as to the accuracy of the facts on which 
the certificate is based (judgment of 6 February 2018, Altun and Others, 
C-359/16, EU:C:2018:63, paragraphs 42 and 43). 
46 As long as an A1 certificate is not withdrawn or declared invalid, the competent 
institution of the Member State in which an employee actually works must take 
account of the fact that that person is already subject to the social security 
legislation of the Member State in which the undertaking employing him is 
established, and that institution cannot therefore subject the worker in question to 
its own social security system (judgment of 27 April 2017, A-Rosa Flussschiff, 
C-620/15, EU:C:2017:309, paragraph 43). 
47 The Court of Appeal, Liège, notes that the Slovak Social Insurance Agency has 
not declared the A1 certificates invalid and has not withdrawn them definitively. It 
has withdrawn the A1 certificates only provisionally, pending the outcome of the 
judicial proceedings in Belgium. 
48 Without suggesting in any way that there has been a failure of sincere cooperation, 
the Court of Appeal, Liège, takes note of that circumspection and considers that 
the provisional withdrawal of the certificates does not establish with certainty that 
the workers concerned are indeed no longer affiliated to the Slovak social security 
system. 
49 The question which therefore arises is whether the presumption of proper 
affiliation to the social security system of the Member State which issued the A1 
certificates falls away if those certificates are withdrawn not definitively but 
provisionally, with the result that the A1 certificates will no longer be binding on 
the authorities of the Member State in which the employees actually work. 
50 That question can only be answered by interpreting Article 5 of Regulation 
No 987/2009. 
51 In order to be able to give a ruling, the Court of Appeal, Liège, considers it 
necessary to refer the third question to the Court of Justice for a preliminary 
ruling. 
The principle of prohibition of fraud and abuse of rights 
52 The Court of Appeal, Liège, emphasises that considerations relating to the 
probative force of the Community transport licence and the A1 certificate should 
not result in individuals being able to rely on EU law for abusive or fraudulent 
ends. 
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53 The principle of prohibition of fraud and abuse of rights is a general principle of 
EU law which individuals must observe. Consequently, the application of EU law 
cannot be extended to cover transactions that are carried out for the purpose of 
wrongfully or fraudulently obtaining advantages provided for by EU law 
(judgments of 5 July 2007, Kofoed, C-321/05, EU:C:2007:408, paragraph 38, and 
of 22 November 2017, Cussens and Others, C-251/16, EU:C:2017:881, 
paragraph 27). 
54 Having regard to the facts before it, the Court of Appeal, Liège, wishes to 
establish whether, in the event that a Community transport licence granted to an 
undertaking does constitute irrefutable evidence of the establishment of that 
undertaking’s registered office in the issuing Member State, for the purposes of 
Article 13(1) of the basic regulation, the authorities of the Member State in which 
the employees actually work may, in spite of everything, disregard that 
Community transport licence if the facts show that the employer has behaved 
fraudulently or that the licence was obtained fraudulently, even where the 
procedure described in Article 13(1) of Regulation No 1072/2009, in accordance 
with which a Member State within whose territory a serious infringement of that 
regulation has been ascertained may report that infringement to the competent 
authorities of the haulier’s Member State of establishment, has not been followed. 
55 Similarly, in the event that the presumption of proper affiliation to the social 
security system of the Member State which issued the A1 certificates does not fall 
away but continues to bind other Member States if those certificates are 
withdrawn not definitively but provisionally, the Court of Appeal, Liège, wishes 
to establish whether the authorities of the Member State in which the employees 
work may disregard such a certificate where the facts that have been placed before 
them indicate that the certificate was obtained as a result of fraudulent conduct on 
the employer’s part. 
56 In order to be able to give a ruling, the Court of Appeal, Liège, considers it 
necessary to refer the second and fourth questions to the Court of Justice for a 
preliminary ruling. 
V The questions referred for a preliminary ruling 
1. Are 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, 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 to 
be interpreted as meaning that the fact that an undertaking has obtained a 
MINISTÈRE PUBLIC AND OTHERS 
 
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transport licence in a Member State of the European Union in accordance 
with Regulation (EC) No 1071/2009 and Regulation (EC) No 1072/2009 and 
must, therefore, have an effective and stable establishment in that Member 
State, means ipso facto that it has adduced irrefutable evidence that its 
registered office is established in that Member State, within the meaning of 
Article 13(1) of Regulation (EC) No 883/2004, for the purposes of 
determining which social security scheme is applicable and that the 
authorities of the Member State of employment are bound by that place of 
establishment? 
2. If the first question is answered in the affirmative: 
– does the issue of a transport licence preclude the authorities of the 
Member State in which the employees work or are intended to work 
from disregarding the issue of that licence on account of the fraudulent 
conduct of the employer? 
– may a court other than a court of the Member State which issued the 
transport licence disregard that licence even though the procedure 
described in Article 13(1) 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 
(recast)] – in accordance with which a Member State within whose 
territory a serious infringement of that regulation has been ascertained 
may report that infringement to the competent authorities of the 
haulier’s Member State of establishment – has not been followed, 
where the facts that have been placed before it enable it to find that the 
licence was obtained fraudulently? 
3. Is 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, after the authorities of the Member State in which the employees work or 
are intended to work have requested the retroactive withdrawal of the A1 
certificates, the authorities of the Member State which issued those 
certificates confine themselves to withdrawing them provisionally, so that 
the proceedings – in this case, criminal proceedings – may continue in the 
Member State of employment, and the Member State which issued the A1 
certificates will not reach a final decision until those proceedings are 
concluded, then does the presumption, arising from those A1 certificates, 
that the workers concerned are properly affiliated to the social security 
system of that issuing Member State fall away and the A1 certificates 
consequently cease to bind the authorities of the Member State in which the 
employees work or are intended to work? 
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4. In the event that the third question is answered in the negative, may the 
authorities of the Member State in which the employees work or are 
intended to work disregard the A1 certificates in the event that the facts 
placed before them indicate that the certificates were obtained as a result of 
conduct on the employer’s part that is held to be fraudulent?