Fitzwilliam Executive Search Ltd v Bestuur van het Landelijk instituut sociale verzekeringen.
Date: 2000-02-10
20 It must be remembered first of all that the provisions of Title II of Regulation No 1408/71, of which Article 14 forms part, constitute, according to the settled case-law of the Court, a complete and uniform system of conflict rules the aim of which is to ensure that workers moving within the Community shall be subject to the social security scheme of only one Member State, in order to prevent the system of legislation of more than one Member State from being applicable and to avoid the complications which may result from that situation (see Case C-2/89 Kits van Heijningen [1990] ECR I-1755, paragraph 12; Case C-425/93 Calle Grenzshop Andresen [1995] ECR I-269, paragraph 9; Case C-131/95 Huijbrechts [1997] ECR I-1409, paragraph 17, and Case C-275/96 Kuusijärvi [1998] ECR I-3419, paragraph 28).
21 It is clear from the judgment in Case 19/67 van der Vecht [1967] ECR 345 and the judgment in Case 35/70 Manpower [1970] ECR 1251, which concerned Article 13(a) of Regulation No 3, both in its original version and in the version in Regulation No 24/64, which preceded Article 14(1)(a) of Regulation No 1408/71, that the exception derogating from the rule that a worker is to be subject to the legislation of the Member State in whose territory he is employed (hereinafter the State of employment rule), now laid down by Article 13(2)(a) of Regulation No 1408/71, can apply to undertakings providing temporary personnel only if, inter alia, the following two conditions are met.
22 The first condition, as FTS in particular submits in its written observations, concerns the existence and nature of a necessary link between the undertaking providing temporary personnel and the posted worker, in so far as the posted worker must normally be attached to the undertaking which posted him to another Member State.
23 The second condition concerns the relationship between the undertaking providing temporary personnel and the Member State in which it is established. In this regard, the Court has held, in paragraph 16 of its judgment in Manpower, cited above, that the exception allowing derogation to be made from the State of employment rule in the case of workers sent on a temporary posting is applicable only to workers employed by undertakings normally carrying on their business in the territory of the State in which they are established.
Undertaking to which he is normally attached
24 As far as this notion is concerned, suffice it to say, as is clear from all the observations submitted, that what is required under Decision No 128 is the maintenance of a direct link between the undertaking established in a Member State and the workers which it has posted to another Member State during the period of posting of those workers. In order to establish the existence of such a direct link, it is necessary to deduce from all the circumstances of the worker's employment that he is under the authority of that undertaking (see, in this regard, the judgments in van der Vecht, at p. 354 and Manpower, at paragraphs 18 and 19).
26 Apart from FTS, which expresses doubts in this regard, all the other participants in the proceedings before the Court submit that, both under Regulation No 1408/71 and under Regulation No 3, it is necessary for the undertaking concerned to have ties with the Member State in which it is established. To justify the need for such links, most of them rely on the judgment in Manpower, cited above. In paragraph 16 of that judgment, the Court held that undertakings to which workers are attached must normally pursue their activity in the territory of the State in which they are established.
28 The purpose of Article 14(1)(a) of Regulation No 1408/71 is, in particular, to promote 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. It is aimed at overcoming obstacles likely to impede freedom of movement of workers and also at encouraging economic interpenetration whilst avoiding administrative complications, in particular for workers and undertakings (Manpower, cited above, paragraph 10).
29 As the Court held in paragraph 11 of its judgment in Manpower, in order to prevent an undertaking established in a Member State from being obliged to register its workers, normally 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 - which would complicate exercise of freedom to provide services - Article 14(1)(a) of Regulation No 1408/71 allows the undertaking to keep its workers registered under the social security system of the first Member State if the undertaking observes the conditions governing that freedom to provide services.
30 It follows that Article 14(1)(a) of Regulation No 1408/71 remains an exception to the State of employment rule (see Manpower, paragraph 10) and that, consequently, an undertaking which provides temporary personnel and wishes to offer cross-border services may benefit from the advantage afforded by that provision only if it normally carries on its activities in the Member State in which it is established.
31 Consequently, it must be held that the condition laid down in paragraph 16 of the judgment in Manpower, admittedly in relation to the system under Regulation No 3, continues to apply under Regulation No 1408/71.
32 That conclusion is borne out by point 1(b) of Decision No 128, even though such a decision, whilst capable of providing guidance to social security institutions responsible for applying Community law in this sphere, cannot require those institutions to follow certain methods or to adopt certain interpretations when they come to apply the rules of Community law (see Case 98/80 Romano [1981] ECR 1241, paragraph 20, and Case C-102/91 Knoch [1992] ECR I-4341, paragraph 52). Moreover, all the participants in the proceedings before the Court accept that the wording of this point merely carries over the condition laid down in the judgment in Manpower.
33 It follows from all the foregoing considerations that Article 14(1)(a) of Regulation No 1408/71 is to be interpreted as meaning that, in order to benefit from the advantage afforded by that provision, an undertaking engaged in providing temporary personnel which, from one Member State, makes workers available on a temporary basis to undertakings based in another Member State must normally carry on its activities in the first State.
The second part of the first question
45 Consequently, the answer to be given to the second part of the first question must be that an undertaking engaged in providing temporary personnel normally carries on its activities in the Member State in which it is established if it habitually carries on significant activities in that State.
The second question
48 It is not disputed that the Court has not yet ruled on the character and legal nature of an E 101 certificate. However, it is clear from its judgment in Case 93/82 Knoeller [1982] ECR 951, paragraph 9, that a certificate such as that in question in the main proceedings - like the substantive rules in Article 14(1)(a) of Regulation No 1408/71 - is aimed at facilitating freedom of movement for workers and freedom to provide services.
49 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 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, in comprising this declaration, necessarily implies that the other Member State's social security system cannot apply.
50 However, the authenticity of an E 101 certificate is limited to the competent institution's declaration as to the legislation applicable; it cannot affect the Member States' freedom to organise their own social protection schemes or the way in which they regulate the conditions for affiliation to the various social security schemes, which, as the French Government submits, are matters which remain exclusively within the competence of the Member State concerned.
51 The principle of sincere cooperation, laid down in Article 5 of the EC Treaty (now Article 10 EC), requires the competent 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.
52 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 5 of the Treaty that these 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.
53 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 providing temporary personnel is established, such a certificate is binding on the competent institution of the Member State to which those workers are posted.
54 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 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.
55 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 institution cannot therefore subject the workers in question to its own social security system.
56 However, 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 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.
57 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.
58 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 170 of the EC Treaty (now 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.