A-Rosa Flussschiff GmbH v Union de recouvrement des cotisations de sécurité sociale et d’allocations familiales d’Alsace (Urssaf), venant aux droits de l’Urssaf du Bas-Rhin and Sozialversicherungsanstalt des Kantons Graubünden.
Date: 2017-04-27
35


As a preliminary point, it should be borne in mind that, in accordance with the Court’s settled case-law, in a reference for a preliminary ruling under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to find and assess the facts in the case in the main proceedings. In that context, the Court is only empowered to rule on the interpretation or validity of EU law in the light of the factual and legal situation as described by the referring court, in order to provide that court with such guidance as will assist it in resolving the dispute before it (judgment of 28 July 2016, Kratzer, C‑423/15, EU:C:2016:604, paragraph 27).
37


It should be borne in mind that the E 101 certificate is, like the substantive rules in Article 14(2)(a) of Regulation No 1408/71, aimed at facilitating freedom of movement for workers and freedom to provide services (see, by analogy, judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 20 and the case-law cited).
38


On 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 covered by only one social security system, the certificate thus necessarily implies that the other Member State’s social security system cannot apply (judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 21 and the case-law cited).
39


In that regard, it should be noted that the principle of cooperation in good faith, 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 correct (judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 22 and the case-law cited).
40


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(2)(a) of Regulation No 1408/71 and Article 12a(1a) 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, judgment of 30 March 2000, Banks and Others, C‑178/97, EU:C:2000:169, paragraph 39 and the case-law cited).
41


Consequently, in so far as an E 101 certificate establishes a presumption that the worker concerned is properly affiliated to 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 30 March 2000, Banks and Others, C‑178/97, EU:C:2000:169, paragraph 40 and the case-law cited).
42


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 undermine 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 its own social security system was applicable to those workers (judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 25 and the case-law cited).
43


Consequently, 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 30 March 2000, Banks and Others, C‑178/97, EU:C:2000:169, paragraph 42 and the case-law cited).
44


However, it is incumbent on the competent institution of the Member State which issued the E 101 certificate to reconsider whether it was properly issued 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 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(2)(a) of Regulation No 1408/71 (see, by analogy, judgment of 30 March 2000, Banks and Others, C‑178/97, EU:C:2000:169, paragraph 43 and the case-law cited).
45


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(2)(a) of Regulation No 1408/71, it is open to them to refer the matter to the Administrative Commission (see, by analogy, judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 28 and the case-law cited).
46


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 in which the employee concerned actually works 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 259 TFEU in order to enable the Court to examine in those proceedings the question of the legislation applicable to such an employee and, consequently, whether the information contained in the E 101 certificate is correct (judgment of 10 February 2000, FTS, C‑202/97, EU:C:2000:75, paragraph 58).
47


If it were accepted that a competent national institution could, by bringing proceedings before a court of the host Member State of the worker concerned to which that institution belongs, have an E 101 certificate declared invalid, there would be a risk that the system based on cooperation in good faith between the competent institutions of the Member States would be undermined (judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 30).
48


It is clear from the foregoing that, 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 to which the employee goes in order to work and, therefore, binds the institutions of that Member State (see, to that effect, judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 31).
49


It follows that a court of the host Member State is not entitled to scrutinise the validity of an E 101 certificate in the light of the background against which it was issued (see, to that effect, judgment of 26 January 2006, Herbosch Kiere, C‑2/05, EU:C:2006:69, paragraph 32).
50


Moreover, the Court has previously held that, since the E 101 certificate is binding on the competent institution of the host Member State, there can be no justification for the person who has recourse to a worker’s services not to act in reliance on that certificate. If he has doubts as to the validity of the certificate, that person must, however, inform the institution in question (judgment of 9 September 2015, X and van Dijk, C‑72/14 and C‑197/14, EU:C:2015:564, paragraph 42 and the case-law cited).
51


Therefore, an E 101 certificate issued by the competent institution of a Member State in accordance with Article 12a(1a) of Regulation No 574/72 when, according to the institutions and courts of the Member State in which the work is carried out, the workers concerned do not fall within the scope of Article 14(2)(a) of Regulation No 1408/71, is equally binding on those institutions and courts and on the person who has recourse to those workers’ services.
52


The foregoing conclusion is in no way altered by the fact that the workers concerned clearly do not fall within the scope of Article 14 of that regulation.
53


Indeed, given that the Court has determined, through its case-law, 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, the institutions of those States applying Regulations Nos 1408/71 and 574/72, including the Swiss Confederation pursuant to the EC-Switzerland Agreement, must follow that procedure, 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.
59


Moreover, 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 reproducing the procedure called in question by the French Government and by the URSSAF as a means of resolving disputes concerning both the accuracy of documents drawn up by the competent institution of a Member State and determining the legislation applicable to the worker concerned.