Format Urządzenia i Montaże Przemysłowe sp. z o.o. v Zakład Ubezpieczeń Społecznych.
Date: 2012-10-04
29. In that regard, it should be noted that the provisions of Title II of Regulation No 1408/71, which includes Article 14(2), constitute, according to settled case-law, a complete and uniform system of conflict rules the aim of which is to ensure that workers moving within the European Union are subject to the social security scheme of only one Member State, in order to prevent the national legislation of more than one Member State from being applicable and to avoid the attendant complications of such a situation (see, to that effect, in particular, Case 276/81 Kuijpers  [1982] ECR 3027, paragraph 10; Case C-202/97 FTS  [2000] ECR I-883, paragraph 20 and the case-law cited; as well as Case C-404/98 Plum  [2000] ECR I-9379, paragraph 18).
30. In order to achieve that aim, Article 13(2)(a) of Regulation No 1408/71 lays down the principle that an employed person is to be subject, with regard to social security matters, to the legislation of the Member State in which he works (see Case 101/83 Brusse  [1984] ECR 2223, paragraph 15).
31. Nevertheless, that principle is stated to be ‘subject to the provisions of Articles 14 to 17’ of Regulation No 1408/71. However, in certain specific situations the unrestricted application of the rule set out in Article 13(2)(a) of that regulation might in fact create, instead of prevent, administrative complications for workers as well as for employers and social security authorities, which would place obstacles in the way of the freedom of movement of the persons covered by that regulation (see, to that effect, Brusse , paragraph 16). Special rules governing such situations are set out, in particular, in Article 14 of Regulation No 1408/71.
32. It is apparent from the file that the referring court starts from the premiss that Article 14(1)(a) of Regulation No 1408/71 relating to the temporary posting of workers does not apply to Mr Kita’s situation, on the ground that Format, the company which employs him, does not usually carry out significant activities in Poland, the Member State in which it is established, as required by a correct application of that provision (see, to that effect, Case 35/70 Manpower  [1970] ECR 1251, paragraph 16, FTS , paragraphs 23 and 45; and Plum , paragraph 22). That premiss has not been disputed before the Court of Justice.
33. Moreover, as the referring court points out, in essence, and as follows from Article 14(2)(a) of Regulation No 1408/71, a person who normally is employed more or less simultaneously or concurrently on the territory of more than one Member State may fall within the concept of ‘a person normally employed in the territory of two or more Member States’ within the meaning of Article 14(2) (see, by analogy, Case C-425/93 Calle Grenzshop Andresen [1995] ECR I-269, paragraph 15).
41. In those circumstances, in order to provide a useful answer to the referring court, it is necessary to take account of the existence, in the case in the main proceedings, of a divergence between, on one hand, the employment contracts at issue in those proceedings and the places of employment which they stipulate — on the basis of which Format requested an E 101 certificate to be issued — and, on the other, the way in which the obligations were performed in practice under those contracts.
42. In that regard, it should be noted that the issuing institution of an E 101 certificate is required to carry out a proper assessment of the facts relevant for the application of the rules relating to the determination of the legislation applicable in the matter of social security and, consequently, to ensure the correctness of the information contained in that certificate (see, to that effect, FTS , paragraph 51, and Case C-178/97 Banks and Others [2000] ECR I-2005, paragraph 38).
44. With that in mind, it is necessary to have regard, in particular, to the nature of the work as defined in the contractual documents, in order to determine whether the foreseeable activities amount to employed activities covering, on more than a merely once-off basis, the territory of several Member States, provided, however, that the terms of those documents are consistent with the foreseeable activities concerned at the time of the request for the E 101 certificate, or, as the case may be, with the actual work performed before or after such a request.
45. When assessing the facts with a view to determining the social security legislation applicable for the purposes of issuing an E 101 certificate, the institution concerned may where appropriate take account not only of the wording of contractual documents, but also of factors such as the way in which employment contracts between the employer and the worker concerned had previously been implemented in practice, the circumstances surrounding the conclusion of those contracts and, more generally, the characteristics and conditions of the work performed by the company concerned, in so far as those factors may throw light on the actual nature of the work in question.
46. If it is apparent from relevant factors other than contractual documents that an employed person’s situation in fact differs from that described in such documents, the obligation mentioned in paragraph 42 of the present judgment to apply Regulation No 1408/71 correctly means that it is incumbent on the institution concerned, whatever the wording of those contractual documents, to base its findings on the employed person’s actual situation and, where appropriate, to refuse to issue the E 101 certificate.
47. Moreover, it is apparent from the case-law that it is incumbent on the institution which has already issued an E 101 certificate to reconsider the grounds for its issue and, if necessary, withdraw the certificate if the competent institution of a Member State in which the employed person carries out work expresses doubts as to the correctness of the facts on which the certificate is based and/or as to compliance with the requirements of Title II of Regulation No 1408/71 (see, by analogy, in the context of Article 14(1) of Regulation No 1408/71, FTS , paragraph 56, and Banks and Others , paragraph 43).