In its judgement of 11 July, the CJEU ruled that the Belgian social anti-abuse Act, which provides for the possibility to disregard an A1 form in case of abuse of rights, is incompatible with the EU legislation on the coordination of social security schemes.
Programme Act of 27 December 2012
In the Programma Act of 27 December 2012, a chapter on abuse of rights in case of posting was included, also called “the social anti-abuse Act”. This Act provided for the possibility for Belgian courts and social security authorities to unilaterally disregard an A1 form issued by another Member State for an individual posted to work in Belgium if abuse of rights was determined and to subsequently subject the individual to the Belgian social security scheme.
After a letter of formal notice of incompatibility with the Regulations 883/04 and 987/09 by the Commission, the anti-abuse Act was temporarily suspended. Not satisfied with Belgium’s responses, the Commission brought proceedings before the CJEU.
Proceedings before the CJEU
The Court reiterates its longstanding case law on the validity of A1 forms in which the guiding principle has always been the fact that, in case of posting, an A1 form has a binding effect on the competent authorities and courts of the host Member State, as long as the issuing home Member State has not retracted said A1 form or declared it invalid. The binding effect of an A1 forms finds its basis in the principles of sincere cooperation between Member States and legal certainty.
If doubts arise on the validity of an A1 form, Member States have to follow a specific dialogue and reconciliation procedure.
The Court continues by stating that the above-mentioned principle of sincere cooperation would be thwarted if the Member State to which workers are posted could adopt legislation that allowed its own institutions to unilaterally – without following the reconciliation procedure – disregard an A1 form and to make those workers subject to its own social security scheme. Consequently, the provisions of the Belgian anti-abuse Act are incompatible with the Regulations 883/04 and 987/09.
The Court concedes that – as it has ruled in the Altun case – a national court can disregard the application of an A1 form in case of demonstrated fraud after adversarial legal proceedings, if a specific set of conditions is complied with. The Court however finds that the Belgian legislation at issue does not satisfy these conditions.
Conclusion
As mentioned above, the Belgian social anti-abuse Act in question was suspended after the Commission’s initial notice and its provisions have therefore never been applied by the social inspectorate services. On his website, the current State Secretary for Social Fraud – Philippe De Backer – has already indicated that, as a result of the CJEU’s judgement, he plans to definitively abolish this legislation.
