European Commission v Kingdom of Belgium.
Date: 2018-07-11
25


It is true that the Court has consistently held that it is for the Commission to prove the existence of the alleged infringement. Indeed, the Commission has to provide the Court with all the information necessary for it to determine whether the infringement is made out, and the Commission may not rely on any presumption for that purpose (judgment of 4 September 2014, Commission v France, C‑237/12, EU:C:2014:2152, paragraph 32).
26


However, the question whether the Commission has demonstrated the existence of the alleged infringement is to be considered in relation to the substance of the action, not its admissibility (judgment of 4 June 2015, Commission v Poland, C‑678/13, not published, EU:C:2015:358, paragraph 18 and the case-law cited).
32


It must be recalled that in accordance with Article 120(c) of the Rules of Procedure of the Court and the settled case-law relating to that provision, an application initiating proceedings must state clearly and precisely the subject matter of the proceedings and set out a summary of the pleas in law relied on, so as to enable the defendant to prepare a defence and the Court to rule on the application. It follows that the essential points of law and of fact on which such an action is based must be indicated coherently and intelligibly in the application itself and that the forms of order must be set out unambiguously so that the Court does not rule ultra petita or indeed fail to rule on one of the heads of claim (see, to that effect, judgment of 2 June 2016, Commission v Netherlands, C‑233/14, EU:C:2016:396, paragraphs 32 and 34 and the case-law cited).
33


The Court has also held that, where an action is brought under Article 258 TFEU, the application must set out the complaints coherently and precisely, so that the Member State and the Court can know exactly the scope of the alleged infringement of EU law, a condition that must be satisfied if the Member State is to be able to present an effective defence and the Court to determine whether there has been a breach of obligations, as alleged (judgment of 2 June 2016, Commission v Netherlands, C‑233/14, EU:C:2016:396, paragraph 33 and the case-law cited).
34


In particular, the Commission’s action must contain a coherent and detailed statement of the reasons which have led it to conclude that the Member State in question has failed to fulfil one of its obligations under the Treaties (judgment of 2 June 2016, Commission v Netherlands, C‑233/14, EU:C:2016:396, paragraph 35 and the case-law cited).
49


In addition, the Commission claims that the Court has confirmed, in its judgment of 26 January 2006, Herbosch Kiere (C‑2/05, EU:C:2006:69, paragraphs 24 and 25), that in so far as an A1 certificate establishes a presumption that posted workers are properly affiliated to the social security scheme of the Member State in which the undertaking that posted those workers is established, that certificate is binding on the competent institution of the Member State to which those workers are posted and necessarily implies that the social security scheme of the latter Member State cannot apply.
74


With regard to the general principle fraus omnia corrumpit, the Commission asserts that the Court has expressly held, in its judgment of 10 February 2000, FTS (C‑202/97, EU:C:2000:75, paragraph 53), that Member States do not have the power unilaterally to decide that a document issued by the Member State from which the posted worker came is vitiated by fraud.
79


With regard to the complaints alleging breach of Articles 11 and 12 and Article 76(6) of Regulation No 883/2004 and Article 5 of Regulation No 987/2009, the Court notes, as a preliminary point, that the provisions of Regulation No 883/2004 which determine the applicable legislation are intended to ensure, in particular, that the persons concerned are subject to the social security scheme of only one Member State in order to prevent more than one system of national legislation from applying and to avoid the complications which may result from that situation. That principle is expressed, inter alia, in Article 11(1) of Regulation No 883/2004 (see, by analogy, judgments of 12 June 2012, Hudzinski and Wawrzyniak, C‑611/10 and C‑612/10, EU:C:2012:339, paragraph 41, and of 12 February 2015, Bouman, C‑114/13, EU:C:2015:81, paragraph 33).
85


In that case-law, the Court held that the competent institution of the Member State in which the employer normally carries out its activity declares in the A1 certificate that its own social security scheme will remain applicable to the posted workers for the duration of their posting. Thus, by virtue of the principle that workers are to be covered by only one social security system, the A1 certificate necessarily implies that the social security scheme of the Member State to which the worker is posted cannot apply (see, to that effect, judgments of 10 February 2000, FTS, C‑202/97, EU:C:2000:75, paragraph 49, and of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 21).
86


The principle of sincere cooperation laid down in Article 4(3) TEU and the objectives pursued by Article 12(1) of Regulation No 883/2004 and Article 5(1) of Regulation No 987/2009 would be thwarted if the Member State to which workers are posted could adopt legislation that allowed its own institutions to consider unilaterally that they are not bound by the particulars contained in the certificate and to make those workers subject to its own social security scheme (see, to that effect, judgments of 10 February 2000, FTS, C‑202/97, EU:C:2000:75, paragraph 52; of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 23; and of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 38).
87


Consequently, inasmuch as an A1 certificate establishes a presumption that posted workers are properly affiliated to the social security scheme of the Member State in which the undertaking which posted those workers is established, such a certificate is binding, as a rule, on the competent institution of the Member State to which those workers are posted (see, to that effect, judgments of 10 February 2000, FTS, C‑202/97, EU:C:2000:75, paragraph 53; of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 24; and of 27 April 2017, A‑Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 41).
88


The opposite result would undermine the principle that employees are to be covered by only one social security system, would make it difficult to know which scheme is applicable and would consequently impair legal certainty. In cases in which it was difficult to determine the scheme applicable, each of the competent institutions of the two Member States concerned would be inclined to take the view, to the detriment of the employees concerned, that their own social security scheme is applicable to them (judgments of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 25, and of 27 April 2017, A–Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 42).
89


However, the principle of sincere cooperation laid down in Article 4(3) TEU requires the competent institution of the Member State which issued the A1 certificate to carry out a proper assessment of the facts relevant for the application of the rules relating to the determination of the applicable legislation on social security matters and, consequently, to guarantee the accuracy of the particulars contained in that certificate (judgments of 27 April 2017, A–Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 39, and of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 37).
90


In addition, it is incumbent on that institution to reconsider the grounds for issuing the certificate and, if appropriate, to withdraw the A1 certificate if the competent institution of the Member State in which the workers are posted expresses doubts as to the accuracy of the facts on which the document is based and, consequently, of the particulars contained therein, in particular because the latter do not meet the requirements of Article 12(1) of Regulation No 883/2004 (see, to that effect, judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 43 and the case-law cited).
91


Should the institutions concerned not reach an agreement, in particular, on how the particular facts of a specific case are to be assessed, it is open to them to refer the matter to the Administrative Commission (see, to that effect, judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 44 and the case-law cited).
92


If the Administrative Commission does not succeed in reconciling the points of view of the competent institutions on the question of the legislation applicable in the case at issue, it is at the least open to the Member State in which the workers concerned are posted, without prejudice to any legal remedies existing in the Member State to which the issuing institution belongs, to bring infringement proceedings under Article 259 TFEU in order to enable the Court to examine in those proceedings the question of which legislation applies to those workers and, consequently, whether the particulars contained in the A1 certificate are accurate (see, to that effect, judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 45).
93


Thus, even in the case of a manifest error of assessment of the conditions governing the application of Regulation No 883/2004, and even if it were established that the conditions under which the workers concerned carry out their activities clearly do not fall within the material scope of the provision on the basis of which the A1 certificate was issued, the procedure to be followed in order to resolve any dispute between the institutions of the Member States concerned as regards the validity or the accuracy of an A1 certificate must be complied with (judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 46 and the case-law cited).
94


If it were accepted that the Member State in which a worker is posted could adopt legislation that allowed its own institutions to have an A1 certificate declared invalid unilaterally by bringing proceedings before a court of that Member State, there would be a risk that the system based on the duty of sincere cooperation between the competent institutions of the Member States would be undermined. Therefore, as long as it has not been withdrawn or declared invalid, an A1 certificate is to be accepted, as a rule, in the internal legal order of the Member State to which the workers concerned are posted and, therefore, it is binding on its institutions (see, to that effect, judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraphs 30 and 31).
95


Accordingly, legislation such as Articles 23 and 24 of the Programme Law, which entitles the competent authorities of the Kingdom of Belgium unilaterally to make a worker subject to Belgian legislation on social security matters, is contrary to the principle laid down in Article 11(1) of Regulation No 883/2004 that workers are to be covered by only one social security scheme and to the principle of legal certainty which requires, inter alia, that rules of law must be clear, precise and predictable as regards their effects, in particular if they may have negative consequences for individuals and undertakings (see, to that effect, inter alia, judgment of 12 December 2013, Test Claimants in the Franked Investment Income Group Litigation, C‑362/12, EU:C:2013:834, paragraph 44 and the case-law cited).
99


It is true that the Court has consistently held that individuals may not rely on EU rules for abusive or fraudulent ends, as the principle of prohibition of fraud and abuse of rights is a general principle of EU law which individuals must comply with. The application of EU legislation cannot be extended to cover transactions carried out for the purpose of fraudulently or wrongfully obtaining advantages provided for by EU law (judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraphs 48 and 49 and the case-law cited).
100


In that context, the Court has held that when, in the dialogue provided for in Article 76(6) of Regulation No 883/2004, the institution of the Member State to which the workers have been posted puts before the institution that issued the A1 certificates concrete evidence that suggests that those certificates were obtained fraudulently, it is the duty of the latter institution, by virtue of the principle of sincere cooperation, to review, in the light of that evidence, the grounds for the issue of those certificates and, where appropriate, to withdraw them (judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 54).
101


If the latter institution fails to carry out such a review within a reasonable period of time, it must be possible for that evidence to be relied on in judicial proceedings, in order to satisfy the court of the Member State to which the workers have been posted that the certificates should be disregarded (judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 55).
102


In such a case, a national court may disregard the A1 certificates concerned and must determine whether the persons suspected of having used posted workers ostensibly covered by certificates obtained fraudulently may be held liable under the applicable national law (judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 60).
103


However, the persons who are alleged, in such proceedings, to have used posted workers ostensibly covered by fraudulently obtained certificates must be given the opportunity to rebut the evidence on which those proceedings are based, with due regard to the safeguards associated with the right to a fair trial, before the national court decides, if appropriate, that the certificates should be disregarded and gives a ruling on the liability of those persons under the applicable national law (judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraph 56).
106


In the second place, it is clear from settled case-law that a Member State may not rely on the fact that other Member States have also failed to perform their obligations in order to justify its own failure to fulfil its obligations under the FEU Treaty. In fact, in the EU legal order established by the Treaty, the implementation of EU law by the Member States cannot be made subject to a condition of reciprocity. Articles 258 and 259 TFEU provide the appropriate remedies in cases where Member States fail to fulfil their obligations under the FEU Treaty (judgment of 19 November 2009, Commission v Finland, C‑118/07, EU:C:2009:715, paragraph 48 and the case-law cited).
107


In the third place, with regard to the argument that the legal framework for the withdrawal of A1 certificates is very basic and incomplete, and that Member States therefore are faced with difficulties when they have to take immediate action to punish fraudulent conduct, the Court finds that, while it is possible that the way in which the cooperation and conciliation procedure operates is not always efficient and satisfactory in practice, Member States should not be able to rely on possible difficulties in obtaining the information required or on possible shortcomings of cooperation between their competent authorities to justify the fact that they have not complied with their obligations under EU law (see, to that effect, judgment of 6 June 2013, Commission v Belgium, C‑383/10, EU:C:2013:364, paragraph 53 and the case-law cited).
110


With regard to the complaint alleging breach of Decision No A1, it is clear from settled case-law that such a decision, although capable of providing assistance to social security institutions responsible for applying EU law in that sphere, cannot require those institutions to follow certain methods or to adopt certain interpretations when they come to apply EU law (judgments of 8 July 1992, Knoch, C‑102/91, EU:C:1992:303, paragraph 52, and of 1 October 1992, Grisvard and Kreitz, C‑201/91, EU:C:1992:368, paragraph 25).