Criminal proceedings against Ömer Altun and Others.
Date: 2018-02-06
29


In that regard, it should be noted that the provisions of Title II of Regulation No 1408/71, which includes Article 14, constitute, according to the Court’s settled case‑law, a complete and uniform system of conflict of laws 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 (judgments of 10 February 2000, FTS, C‑202/97, EU:C:2000:75, paragraph 20 and the case-law cited, and of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 29 and the case‑law cited).
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 (judgment of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 30 and the case-law cited).
31


Nevertheless, that principle is stated to be ‘subject to Articles 14 to 17’ of Regulation No 1408/71. In certain specific situations, the unrestricted application of the general rule set out in Article 13(2)(a) of that regulation might in fact create, rather than prevent, administrative complications for workers as well as for employers and social security authorities, which could impede the freedom of movement of the persons covered by that regulation (judgment of 4 October 2012, Format Urządzenia i Montaże Przemysłowe, C‑115/11, EU:C:2012:606, paragraph 31 and the case-law cited). Special rules governing such situations are set out, in particular, in Article 14 of Regulation No 1408/71.
32


The purpose of Article 14(1)(a) of Regulation No 1408/71 is, in particular, to promote the freedom to provide services for the benefit of undertakings which avail themselves of it by sending workers to Member States other than that in which they are established. The aim of that provision is to overcome obstacles likely to impede freedom of movement of workers and also to encourage economic interpenetration whilst avoiding administrative complications, in particular for workers and undertakings (see, to that effect, judgment of 10 February 2000, FTS, C‑202/97, EU:C:2000:75, paragraph 28 and the case-law cited).
33


In order to prevent an undertaking established in a Member State from being obliged to register its workers, who will usually be subject to the social security legislation of that State, with the social security system of another Member State where they are sent to perform work of short duration, Article 14(1)(a) of Regulation No 1408/71 allows the undertaking to maintain its workers’ registration under the social security system of the first Member State (see, to that effect, judgment of 10 February 2000, FTS, C‑202/97, EU:C:2000:75, paragraph 29 and the case-law cited).
34


The application of that provision is, however, subject to two conditions. The first condition, which concerns the necessary link between the undertaking posting the worker to a Member State other than that in which it is established and the worker so posted, requires the maintenance of a direct link between that undertaking and that worker during the period of the worker’s posting. The second condition, which relates to the relationship between the undertaking and the Member State in which it is established, requires that the latter habitually carries out significant activities in the territory of that Member State (see, to that effect, judgment of 10 February 2000, FTS, C‑202/97, EU:C:2000:75, paragraphs 21 to 24, 30, 33 and 40 to 45).
35


In that context, the purpose of the E 101 certificate is, like the substantive rules laid down in Article 14(1)(a) of Regulation No 1408/71, to facilitate freedom of movement for workers and freedom to provide services (judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 20 and the case-law cited).
36


In that certificate, the competent institution of the Member State in which an 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 registered with only one social security system, the certificate thus necessarily implies that the other Member State’s social security system cannot apply (see, to that effect, judgments of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 21, and of 27 April 2017, A-Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 38).
37


In that regard, the principle of sincere cooperation, laid down in Article 4(3) TEU, 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 to social security and, consequently, to ensure that the information contained in an E 101 certificate is accurate (judgment of 27 April 2017, A-Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 39 and the case‑law cited).
38


It is also clear from the obligations to cooperate arising from Article 4(3) TEU 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 competent institution of the Member State in which the work is carried out were to consider that it was not bound by the E 101 certificate and made such workers subject to its own social security system (see, by analogy, judgments of 30 March 2000, Banks and Others, C‑178/97, EU:C:2000:169, paragraph 39 and the case-law cited, and of 27 April 2017, A-Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 40).
39


Consequently, in so far as an E 101 certificate establishes a presumption that the worker concerned is properly registered with the social security system of the Member State in which the undertaking employing him is established, it is binding on the competent institution of the Member State in which that person actually works (see, to that effect, judgment of 27 April 2017, A-Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 41 and the case-law cited).
41


Therefore, for as long as an E 101 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 and the case-law cited).
42


It should, however, be noted that it follows from the principle of sincere cooperation that any institution of a Member State must carry out a diligent examination of the application of its own social security system. It also follows from that principle that the institutions of the other Member States are entitled to expect the institution of the Member State concerned to fulfil that obligation (see, by analogy, judgment of 3 March 2016, Commission v Malta, C‑12/14, EU:C:2016:135, paragraph 37).
43


As a result, it is incumbent on the competent institution of the Member State which issued the E 101 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 and, consequently, of the information contained therein, in particular because that information does not meet the requirements of Article 14(1)(a) of Regulation No 1408/71 (see, to that effect, judgment of 27 April 2017, A-Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 44 and the case-law cited).
44


Under Article 84a(3) of Regulation No 1408/71, in the event that the institutions concerned do not reach an 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 referred to in Article 80 of that regulation (see, by analogy, judgment of 27 April 2017, A-Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 45 and the case-law cited).
45


If the Administrative Commission does not succeed in reconciling the points of view of the competent institutions on the question of the legislation applicable, it is at the least open to the Member State in which the employee concerned actually works, 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 such an employee and, consequently, whether the information contained in the E 101 certificate is accurate (judgment of 27 April 2017, A-Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraph 46 and the case-law cited).
46


Thus, even in the case of a manifest error of assessment of the conditions governing the application of Regulations No 1408/71 and No 574/72, 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 E 101 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 E 101 certificate must be complied with (see, to that effect, judgment of 27 April 2017, A-Rosa Flussschiff, C‑620/15, EU:C:2017:309, paragraphs 52 and 53).
47


Regulation No 987/2009, currently in force, codified the Court’s case-law, affirming the binding nature of the E 101 certificate and the exclusive competence of the issuing institution to assess the validity of that certificate, and expressly retaining that procedure as a means of resolving disputes concerning both the accuracy of documents drawn up by the competent institution of a Member State and the determination of the legislation applicable to the worker concerned (see, to that effect, judgment of 27 April 2017, A-Rosa Flussschiff, C-620/15, EU:C:2017:309, paragraph 59).
48


According to the Court’s settled case-law, such considerations must not, however, result in individuals being able to rely on EU law for abusive or fraudulent ends (see, to that effect, judgments of 2 May 1996, Paletta, C‑206/94, EU:C:1996:182, paragraph 24; of 21 February 2006, Halifax and Others, C‑255/02, EU:C:2006:121, paragraph 68; of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas, C‑196/04, EU:C:2006:544, paragraph 35; and of 28 July 2016, Kratzer, C‑423/15, EU:C:2016:604, paragraph 37).
49


The principle of prohibition of fraud and abuse of rights, expressed by that case‑law, 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 (see, to that effect 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


In that context, when, in the dialogue provided for in Article 84a(3) of Regulation No 1408/71, the institution of the Member State to which the workers have been posted puts before the institution that issued the E 101 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, as is clear from the case-law referred to in paragraph 43 of the present judgment.
55


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.
56


The persons who are alleged, in such proceedings, to have used posted workers ostensibly covered by fraudulently obtained certificates must, however, 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.
60


In circumstances such as those in the main proceedings, a national court may disregard the E 101 certificates 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.