Reference for a preliminary ruling by the Arbeidshof te Brussel of 23 December 2004 in the case of Rijksdienst voor Sociale Zekerheid. v N.V. Herbosch-Kiere

(Case C-2/05)

(2005/C 82/14)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by judgment of 23 December 2004 of the Arbeidshof te Brussel (Brussels Higher Labour Court), which was received at the Court Registry on 5 January 2005, for a preliminary ruling in the case of Rijksdienst voor Sociale Zekerheid. v N.V. Herbosch-Kiere on the following questions:

May a court of the host State examine and/or determine whether a direct relationship exists between the undertaking which has posted a worker and the posted worker himself, in view of the fact that the term ‘undertaking to which he is normally attached’ in Article 14(1)(a) of Regulation (EEC) No 1408/71 (1) requires (pursuant to Decision No 128) that there be a direct relationship throughout the period of posting?

May a court of a Member State other than that which issued the abovementioned certificate (E 101 certificate) disregard and/or annul that certificate if it appears from the factual circumstances presented for its consideration that the direct relationship between the undertaking which posted the worker and the posted worker himself did not exist during the period of posting?

Is the competent institution of the State of origin bound by a decision of a court of the host State which, in circumstances such as those set out above, disregards and/or annuls the abovementioned certificate (E 101 certificate)?

(1)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416).