Rijksdienst voor Sociale Zekerheid v Herbosch Kiere NV.
Date: 2006-01-26
19. In that regard, it must be noted that, according to the Court’s settled case‑law, referred to in Decision No 128 of the Administrative Commission, the maintenance during the period of posting of those workers of a direct link between the undertaking established in a Member State and the workers which it has posted to another Member State is one of the requirements for the application of Article 14(1)(a) of Regulation No 1408/71 (see to that effect FTS , paragraph 24). The declaration contained in an E 101 certificate is based upon the existence of such a link.
20. That certificate is – like the substantive rules in Article 14(1)(a) of Regulation No 1408/71 – aimed at facilitating freedom of movement for workers and freedom to provide services (see to that effect FTS , paragraph 48).
21. In an E 101 certificate, the competent institution of the Member State in which an undertaking providing temporary personnel is established declares that its own social security system will remain applicable to the posted workers for the duration of their posting. By virtue of the principle that workers must be covered by only one social security system, the certificate thus necessarily implies that the other Member State’s social security system cannot apply ( FTS , paragraph 51).
22. The principle of cooperation in good faith, laid down in Article 10 EC, requires the issuing institution 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 guarantee the correctness of the information contained in an E 101 certificate ( FTS , paragraph 51).
23. As regards the competent institutions of the Member State to which workers are posted, it is clear from the obligations to cooperate arising from Article 10 EC that those obligations would not be fulfilled – and the aims of Article 14(1)(a) of Regulation No 1408/71 and Article 11(1)(a) of Regulation No 574/72 would be thwarted – if the institutions of that Member State were to consider that they were not bound by the certificate and also made those workers subject to their own social security system ( FTS , paragraph 52).
24. Consequently, in so far as an E 101 certificate establishes a presumption that posted workers are properly affiliated to the social security system of the Member State in which the undertaking which posted those workers is established, such a certificate is binding on the competent institution of the Member State to which those workers are posted (see to that effect FTS , paragraph 53).
25. The opposite result would undermine the principle that workers are to be covered by only one social security system, would make it difficult to know which system is applicable and would consequently impair legal certainty. In cases in which it was difficult to determine the system applicable, each of the competent institutions of the two Member States concerned would be inclined to take the view, to the detriment of the workers concerned, that their own social security system was applicable to them ( FTS , paragraph 54).
26. Consequently, as long as an E 101 certificate is not withdrawn or declared invalid, the competent institution of a Member State to which workers are posted must take account of the fact that those workers are already subject to the social security legislation of the State in which the undertaking employing them is established and that that institution cannot therefore make the workers in question subject to its own social security system ( FTS , paragraph 55).
27. However, it is incumbent on the competent institution of the Member State which issued that certificate to reconsider the grounds for its issue and, if necessary, withdraw the certificate if the competent institution of the Member State to which the workers are posted expresses doubts as to the correctness of the facts on which the certificate is based and, consequently, of the information contained therein, in particular because the information does not correspond to the requirements of Article 14(1)(a) of Regulation No 1408/71 ( FTS , paragraph 56).
28. Should the institutions concerned not reach agreement on, in particular, the question how the particular facts of a specific case are to be assessed, and consequently on the question whether it is covered by Article 14(1)(a) of Regulation No 1408/71, it is open to them to refer the matter to the Administrative Commission ( FTS , paragraph 57).
29. If the Administrative Commission does not succeed in reconciling the points of view of the competent institutions on the question of the legislation applicable, the Member State to which the workers concerned are posted may, without prejudice to any legal remedies existing in the Member State to which the issuing institution belongs, at least bring infringement proceedings under Article 227 EC in order to enable the Court to examine in those proceedings the question of the legislation applicable to those workers and, consequently, the correctness of the information contained in the E 101 certificate ( FTS , paragraph 58).
30. If it were accepted that a competent national institution could, by bringing proceedings before a court of the posted worker’s host Member State to which that institution belongs, have an E 101 certificate declared invalid, there would be a risk that the system based on the duty of cooperation in good faith between the competent institutions of the Member States would be undermined.
31. As long as it has not been withdrawn or declared invalid, an E 101 certificate takes effect in the internal legal order of the Member State in which the workers concerned are posted and, therefore, binds its institutions.
32. It follows that a court of the host Member State is not entitled to scrutinise the validity of an E 101 certificate as regards the certification of the matters on the basis of which such a certificate was issued, in particular the existence of a direct relationship between the undertaking which posted the worker and the posted worker himself.
33. Having regard to all the foregoing considerations, the reply to the first and second questions must be that, as long as it has not been withdrawn or declared invalid by the authorities of the Member State which issued it, an E 101 certificate issued under Article 11(1)(a) of Regulation No 574/72 binds the competent institution and the courts of the Member State in which the workers are posted. Consequently, a court of the host Member State of such workers is not entitled to scrutinise the validity of an E 101 certificate as regards the certification of the matters on the basis of which such a certificate was issued, in particular the existence of a direct relationship, within the meaning of Article 14(1)(a) of Regulation No 1408/71, read in conjunction with paragraph 1 of Decision No 128, between the undertaking established in a Member State and the workers which it has posted to another Member State, during the period of their posting.
The third question