Judgment;Summary — ECLI:EU:C:2020:379
Date: 2020-05-14
Language of the case: French
Court formation: Fifth Chamber
Subject matter: Social security for migrant workers
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-17/19 — 1 
Case C-17/19 
Request for a preliminary ruling 
Date lodged: 
10 January 2019 
Referring court: 
Cour de cassation (France) (Court of Cassation, France)  
Date of the decision to refer: 
8 January 2019 
Appellants in the appeal in cassation, defendants in the criminal proceedings: 
Bouygues travaux publics 
Elco construct Bucarest 
Welbond armatures 
Ministère public  
  
… 
LA COUR DE CASSATION, CHAMBRE CRIMINELLE (COURT OF 
CASSATION (CRIMINAL DIVISION), FRANCE)…: 
Ruling on the appeals in cassation brought by: 
- La société Bouygues travaux publics. 
- La société Elco construct Bucarest. 
- La société Welbond armatures. 
against the judgment of the cour d’appel de CAEN, chambre correctionnelle, (the 
Court of Appeal (Criminal Division), CAEN, France) of 20 March 2017, which 
fined Bouygues and Welbond EUR 20 950 and EUR 15 000 respectively for use 
of the services of concealed workers and the unlawful hiring of labour and fined 
Elco EUR 60 000 for concealed employment, [...]; [Or. 2]  
[…] 
EN 
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Description of the subject-matter of the proceedings 
1 The company Bouygues travaux publics, having been awarded contracts for the 
construction of a next-generation nuclear reactor (European Pressurised Reactor 
(EPR)) in Flamanville, set up a joint venture company for the performance of the 
contracts, along with two other undertakings, and that joint venture company sub-
contracted the work to an economic interest group comprising, inter alia, the 
company Welbond Armatures (Welbond). That economic interest group used 
other sub-contractors, including the company Elco Construct, Bucharest (Elco) 
[…] 
2 Following a complaint about the living conditions of foreign workers, strike action 
by temporary Polish employees concerning the absence or inadequacy of social 
security cover for accidents, the discovery that there had been more than one 
hundred unreported workplace accidents, and an investigation by the Nuclear 
Safety Authority, and then by the police, Bouygues, Welbond and Elco were 
prosecuted for offences committed between June 2008 and October 2012, in 
particular, as regards Bouygues and Welbond, for use of the services of concealed 
workers and the unlawful hiring of labour and, as regards Elco, for concealed 
employment. [Or. 3]  
3 Elco argued that it had provided the host State with E 101 certificates (now A1 
certificates) certifying the applicable social security scheme legislation for the 
workers that it had posted to France and that there was therefore a presumption of 
validity for such postings.  
4 In finding Elco guilty of the offence of concealed employment for having failed to 
make employee declarations prior to the hiring of staff and for having failed to 
make declarations concerning salaries and social security contributions to the 
social security contributions collection authorities, the cour d’appel (Court of 
Appeal) found first, that the vast majority of employees had been hired by the 
company for the sole purpose of being sent to France to work on the EPR site, a 
few days before they left, the majority of them never having worked for or only 
recently having worked for Elco. Secondly, the Court found that Elco’s operations 
in its country of origin had become ancillary to its operations in France, especially 
on the EPR site, the turnover in France going from 67% in 2009 to 70% in 2010 
and to 60% in 2011, whilst that in Romania was 17% in 2009 and 2% in 2011. 
Finally, the Court found that the administrative management of those so-called 
posted employees was not provided by the Romanian company, some postings 
having lasted for more than twenty-four months, The cour d’appel (Court of 
Appeal) inferred therefrom that Elco had a regular, stable and continuous 
operation in France for which it had specifically recruited a separate workforce, 
which prevented it from relying on the legislation applicable to posted workers.  
5 The judges also noted that the absence of declarations prior to the hiring was not 
contested and added that Elco’s primary objective was the pursuit of profit by 
exploiting labour costs in Europe, such social security fraud affecting, on the one 
BOUYGUES TRAVAUX PUBLICS AND OTHERS 
 
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hand, the employees concerned and, on the other hand, the French companies 
which had been subject to unfair competition.  
6 In finding Bouygues travaux public and Welbond guilty on counts of the use of 
concealed workers, made available by Atlanto, and the unlawful hiring of labour, 
the cour d’appel (Court of Appeal) noted that a company with its headquarters in 
Ireland had, through its Cypriot subsidiary Atlanto and an office of that subsidiary 
in Poland, which had no operations in any of those three countries, recruited 
Polish workers, requiring them to sign a contract drafted in Greek, with a view to 
making them available to French companies, using as intermediaries two 
employees of that Cypriot subsidiary, who were based in Dublin and working in 
France, that subsidiary not being listed in the Company Register. The cour d’appel 
(Court of Appeal) stated that Bouygues and Welbond had asked Atlanto for the 
papers and documents relating to the temporary workers on the site, in particular, 
for the E 101 or A1 certificates, but had not obtained complete information and 
[continued to employ] those Polish workers for whom certificates had not been 
forwarded.  
7 […] 
8 Having lodged an appeal with the Cour de Cassation (Court of Cassation), 
Bouygues, Welbond and Elco contend that the cour d’appel (Court of Appeal) 
misconstrued the effects of the E 101 certificates, now A 1 certificates.  
Applicable legislation 
9 According to Article L. 8221-1 of the Code du travail (Labour Code), the 
following are prohibited:  
(1) Total or partial concealed work, defined and performed in accordance with the 
conditions laid down by Articles L. 8221-3 and L, 8221-5; 
[…] 
10 Breach of that prohibition is punishable by up to three years’ imprisonment and a 
fine of EUR 45 000 (Article L. 8224-1 of the Labour Code). 
11 Under Article L.8221-3 of the Labour Code, concealed work is deemed to be 
concealing the carrying out for profit of the following operations: a 
manufacturing, processing or repairs activity, the provision of services or the 
performance of commercial acts by any person who intentionally evades his 
obligations:  
[…] [Or. 5] […] (2) by not having made the required declarations to the social 
security authorities or to the tax authorities, in accordance with the legal 
provisions in force. […] 
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12 It is also clear from Article L. 8221-5 of that Code, that concealed work is deemed 
to include the concealment of paid employment by an employer where the latter: 
(1) either intentionally fails to complete the formality provided for in Article 
L.1221-10, relating to the declaration prior to hiring; or 
… (3) fails to submit declarations in respect of wages or wage-based social 
security contributions to the social security contributions collection authorities.  
[…] 
13 The position of employees hired by companies in their Member State of origin 
and posted to the host State is subject to EU legislative provisions. Council 
Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social 
security schemes to employed persons, to self-employed persons and to members 
of their families moving within the Community, in its last consolidated version, 
provides: 
‘Article 13: General Rules 
1. Subject to Articles 14c and 14f, persons to whom this Regulation applies shall 
be subject to the legislation of a single Member State only. 
That legislation shall be determined in accordance with the provisions of this 
Title.  
2. Subject to Articles 14 to 17: ... (a) a person employed in the territory of one 
Member State shall be subject to the legislation of that State even if he resides in 
the territory of another Member State [Or. 6] or if the registered office or place of 
business of the undertaking or individual employing him is situated in the territory 
of another Member State; […] 
Article 14: Special rules applicable to persons, other than mariners, engaged in 
paid employment.  
Article 13(2)(a) shall apply subject to the following exceptions and circumstances: 
(1) (a) A person employed in the territory of a Member State by a[n] undertaking 
to which he is normally attached who is posted by that undertaking to the territory 
of another Member State to perform work there for that undertaking shall continue 
to be subject to the legislation of the first Member State, provided that the 
anticipated duration of that work does not exceed 12 months and that he is not 
sent to replace another person who has completed his term of posting.  
(b) If the duration of the work to be done extends beyond the duration originally 
anticipated, owing to unforeseeable circumstances, and exceeds twelve months, 
the legislation of the first Member State shall continue to apply until the 
completion of such work, provided that the competent authority of the Member 
BOUYGUES TRAVAUX PUBLICS AND OTHERS 
 
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State in whose territory the person concerned is posted or the body designated by 
that authority gives its consent; such consent must be requested before the end of 
the initial 12-month period. Such consent cannot, however, be given for a period 
exceeding 12 months. 
(2) A person normally employed in the territory of two or more Member States 
shall be subject to the legislation determined as follows:  
(a) A person who is a member of the travelling or flying personnel of an 
undertaking which, for hire or reward or on its own account, operates international 
transport services for passengers or goods by rail, road, air or inland waterway and 
has its registered office or place of business in the territory of a Member State 
shall be subject to the legislation of the latter State, with the following restrictions:  
(i) where the said undertaking has a branch or permanent representation in the 
territory of a Member State other than that in which it has its registered office or 
place of business, a person employed by such branch or permanent representation 
shall be subject to the legislation of the Member State in whose territory such 
branch or permanent representation is situated; [Or. 7]  
(ii) where a person is employed principally in the territory of the Member State 
in which he resides, he shall be subject to the legislation of that State, even if the 
undertaking which employs him has no registered office or place of business or 
branch or permanent representation in that territory; 
(b) A person other than that referred to in (a) shall be subject: 
(i)  to the legislation of the Member State in whose territory he resides, if he 
pursues his activity partly in that territory or if he is attached to several 
undertakings or several employers who have their registered offices or places of 
business in the territory of different Member States;  
(ii)  to the legislation of the Member State in whose territory is situated the 
registered office or place of business of the undertaking or individual employing 
him, if he does not reside in the territory of the Member State where he is 
pursuing his activity.’ 
14 Regulation No 1408/71 was repealed and replaced, with effect from 1 May 2010, 
by Regulation No 883/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems, Article 12 of which 
provides:  
‘1. A person who pursues an activity as an employed person in a Member State 
on behalf of an employer which normally carries out its activities there and who is 
posted by that employer to another Member State to perform work on that 
employer’s behalf shall continue to be subject to the legislation of the first 
Member State, provided that the anticipated duration of such work does not 
exceed 24 months and that he/she is not sent to replace another person.  
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2.  A person who normally pursues an activity as a self-employed person in a 
Member State who goes to pursue a similar activity in another Member State shall 
continue to be subject to the legislation of the first Member State, provided that 
the anticipated duration of such activity does not exceed 24 months.’ 
15 Article 13 governs the pursuit of activities in two or more Member States: 
‘1.  A person who normally pursues an activity as an employed person in two or 
more Member States shall be subject to: 
(a)  the legislation of the Member State of residence if he/she pursues a 
substantial part of his activity in that Member State or if he/she is employed by 
various undertakings or various employers whose registered office or place of 
business is in different Member States, or (b) the legislation of the Member State 
in which the registered office or place of business of the undertaking or employer 
employing him/her is situated, if he/she does not pursue a substantial part of 
his/her activities in the Member State of residence.  
2.  A person who normally pursues an activity as a self-employed person in two 
or more Member States shall be subject to:  
(a)  the legislation of the Member State of residence if he/she pursues a 
substantial part of his activity in that Member State, or (b) the legislation of the 
Member State in which the centre of interest of his/her activities is situated, if 
he/she does not reside in one of the Member States in which he/she pursues a 
substantial part of his activity.  
3.  A person who normally pursues an activity as an employed person and an 
activity as a self-employed person in different Member States shall be subject to 
the legislation of the Member State in which he/she pursues an activity as an 
employed person or, if he/she pursues such an activity in two or more Member 
States, to the legislation determined in accordance with paragraph 1.  
4.  A person who is employed as a civil servant by one Member State and who 
pursues an activity as an employed person and/or as a self-employed person in one 
or more other Member States shall be subject to the legislation of the Member 
State to which the administration employing him/her is subject.  
5.  Persons referred to in paragraphs 1 to 4 shall be treated, for the purposes of 
the legislation determined in accordance with these provisions, as though they 
were pursuing all their activities as employed or self-employed persons and were 
receiving all their income in the Member State concerned.’ 
16 Council Regulation No 574/72 of 21 March 1972 laying down the procedure for 
implementing Regulation (EEC) No 1408/71 on the application of social security 
schemes to employed persons, to self-employed persons and to their families 
moving within the Community, in its last consolidated version, provided:  
BOUYGUES TRAVAUX PUBLICS AND OTHERS 
 
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‘Article 11. Formalities in the case of the posting elsewhere of an employed 
person pursuant to Articles 14(1) and 14b(1) of the Regulation and in the case of 
Agreements concluded under Article 17 of the Regulation.  
1. The institutions designated by the competent authority of the Member States 
whose legislation is to remain applicable shall issue a certificate stating that an 
employed person shall remain subject to that legislation up to a specific date…’ 
17 Regulation No 574/72 was repealed and replaced, with effect from 1 May 2010, 
by 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, which provides:  
‘Article 14. Details relating to Articles 12 and 13 of the basic Regulation [...] 
5. For the purposes of the application of Article 13(1) of the basic Regulation a 
person who “normally pursues an activity as an employed person in two or more 
Member States” shall refer, in particular, to a person who:  
(a)  while maintaining an activity in one Member State, simultaneously exercises 
a separate activity in one or more other Member States, irrespective of the 
duration or nature of that separate activity;  
(b)  continuously pursues alternating activities, with the exception of marginal 
activities, in two or more Member States, irrespective of the frequency or 
regularity of the alternation.  
Article 15. Procedures for the application of Article 11(3)(b) and (d), Article 11(4) 
and Article 12 of the basic Regulation (on the provision of information to the 
institutions concerned)  
‘1. Unless otherwise provided for by Article 16 of the implementing Regulation, 
where a person pursues his activity in a Member State other than the Member 
State competent under Title II of the basic Regulation, 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 issue the attestation referred to in Article [Or. 9] 19(2) of the implementing 
Regulation 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 basic Regulation, available to the institution designated by the 
competent authority of the Member State in which the activity is pursued.’ 
Article 19. Provision of information to persons concerned and employers 
‘…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 the basic Regulation shall provide an attestation that such legislation is 
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applicable and shall indicate, where appropriate, until what date and under what 
conditions.’ 
18 The attestation, known as the E 101 certificate or ‘statement of applicable 
legislation’, is a standard form drawn up by the Administrative Commission on 
Social Security for Migrant Workers, established by Title IV of Regulation 
No 1408/71. From 1 May 2010, that certificate became the portable document 
format (pdf) A1 under new Regulations No 883/2004 and No 987/2009. 
Overview and issues arising  
19 It follows from the judgments of the Court of Justice of the European Union of 
27 April 2017, Rosa Flussschiff GmbH, C-620/15 [EU:C:2017:309], and of 
6 February 2018, Altun and Others, C-359/16 [EU:C:2018:63], that a court –– 
when dealing with criminal proceedings in respect of concealed employment for 
failure to make declarations to the social security authorities where the accused 
person produces E 101 certificates, now A1 certificates, for the workers 
concerned, in accordance with Article 14(2)(a) of Regulation 1408/71 –– can, 
having heard the arguments of the parties, disregard those certificates only if, on 
the basis of an assessment of specific evidence, collected in the course of the 
judicial investigation, which supports the conclusion that the certificates were 
fraudulently obtained or relied on and which the issuing institution failed to take 
into account, it identifies fraud, comprised, as regards its objective element, by 
failure to meet the conditions laid down in the aforementioned provision and, as 
regards its subjective element, by the intention of the accused person to evade or 
circumvent the conditions for the issue of that certificate, with a view to obtaining 
the advantages attaching thereto. 
20 However, in the present case, the employers are being prosecuted for concealed 
employment for failure to submit, not only declarations regarding salaries and 
social security contributions to the social security contributions collection 
authorities, but also for failure to submit employee declarations prior to the hiring 
of staff, on the basis of Articles L.8221-3, L.8221-5 and L.8224-1 of [Or. 10] the 
Labour Code, while the two other companies are being prosecuted under Articles 
L.8221-1 and L.8224-1 of that Code, for using the services of concealed workers 
employed by a company which is accused of failure to fulfil the same obligations.  
21 The question therefore arises as to whether the effects of E 101 certificates, now 
A1 certificates, issued pursuant to paragraph 14(1) and (2)(b) of Regulation 
No 1408/71, and subsequently pursuant to Article 13(1) of Regulation 
No 883/2004, regarding the determination of the law applicable, as regards social 
security schemes and employer declarations to social security authorities, extend 
to the determination of the law applicable as regards labour law and employers’ 
obligations deriving from the application of the labour law of the State where the 
employed persons to whom the certificates relate, carry out their work, with 
particular regard to the declarations which must be made by the employer prior to 
the hiring of those employed persons.  
BOUYGUES TRAVAUX PUBLICS AND OTHERS 
 
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22 The main aim of combatting concealed employment is to protect the rights of the 
workers concerned, particularly where their vulnerability due to the distance from 
their country of origin, or their state of dependency, forces them to accept the 
situation, which is compounded by working conditions which show little respect 
for human dignity.  
For these reasons: 
Refers the following question to the Court of Justice of the European Union: 
Must Article 11 of Council Regulation (EEC) No 574/72 of 21 March 1972 laying 
down the procedure for implementing Council Regulation (EEC) No 1408/71 of 
14 June 1971 on the application of social security schemes to employed persons, 
to self-employed persons and to their families moving within the Community, in 
the version amended and updated by Council Regulation (EC) No 118/97 of 
2 December 1996, as amended by Regulation (EC) No 647/2005 of the European 
Parliament and of the Council of 13 April 2005, and Article 19 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 
of the European Parliament and of the Council of 29 April 2004 on the 
coordination of social security systems, be interpreted as meaning that an E 101 
certificate issued by the institution designated by the competent authority of a 
Member State pursuant to Article 14(1) and (2)(b) of Regulation No 1408/71, in 
the version amended and updated by Regulation No 118/97, as amended by 
Regulation (EC) No 647/2005 of the European Parliament and of the Council of 
13 April 2005, or an A1 certificate issued pursuant to Article 13 [Or. 11] (1) of 
Regulation No 883/2004 of the European Parliament and of the Council of 
29 April 2004 on the coordination of social security systems, binds the courts of 
the Member State in which the work is carried out when it comes to determining 
the legislation applicable, not only as regards the social security system but also as 
regards labour law, where such legislation defines the obligations of employers 
and the rights of employees, so that, having heard the arguments of the parties, 
those courts can disregard the above-mentioned certificates only if, on the basis of 
an assessment of specific evidence, collected in the course of the judicial 
investigation, which supports the conclusion that the certificates were fraudulently 
obtained or relied on and which the issuing institution failed to take into account, 
the said courts identify, within a reasonable timeframe, fraud, comprised, as 
regards its objective element, by the failure to meet the conditions laid down in 
either of the aforementioned provisions of Council Regulation (EEC) No 574/72 
of 21 March 1972 laying down the procedure for implementing Council 
Regulation (EEC) No 1408/71 of 14 June 1971 and 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 and, as regards its 
subjective element, by the intention of the accused person to evade or circumvent 
the conditions for the issue of that certificate, in order to obtain the advantages 
attaching thereto? 
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[…] [signatures]