Keywords
Summary

Keywords

1. Social security for migrant workers - Work for the purposes of Article 14a(1)(a) of Regulation No 1408/71 - Meaning

(Council Regulation No 1408/71, Art. 14a(1)(a))

2. Social security for migrant workers - Legislation applicable - Self-employed worker going to work in another Member State - E 101 certificate issued by the competent institution of the Member State of origin - Probative value in relation to the competent institution of the other Member State - Limits - Retroactive effect of the certificate - Admissibility

(Council Regulation No 1408/71, Art. 14a(1)(a); Council Regulation No 574/72, Art. 11a)

Summary

1. The term work in Article 14a(1)(a) of Regulation No 1408/71, amended and updated by Regulation No 2001/83, and subsequently by Regulation No 3811/86, which provides that a person normally self-employed in the territory of a Member State and who performs work in the territory of another Member State shall continue to be subject to the legislation of the first Member State, provided the anticipated duration of the work does not exceed 12 months, covers any performance of work, whether in an employed or self-employed capacity.

That interpretation arises, first, from the wording of the provision in question, the word work ordinarily having a general meaning designating without distinction performance of work in either an employed or a self-employed capacity. It is, moreover, confirmed by the circumstances in which the provision was adopted, the Council having preferred the term work to that of provision of services which had been proposed by the Commission so as to restrict its application exclusively to cases where work is performed in a self-employed capacity in the territory of another Member State.

( see paras 16, 21, 23, 28, operative part 1 )

2. So long as it has not been withdrawn or declared invalid, an E 101 certificate, issued in accordance with Article 11a of Regulation No 574/72, stating that the self-employed person concerned remains subject to the legislation of his Member State of origin throughout a given period in which he carries out a work assignment in the territory of another Member State, is binding both on the competent institution of the Member State to which a self-employed person goes in order to carry out a work assignment and the person who calls upon the services of that worker.

However, it is incumbent on the competent institution of the Member State which issued that 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 self-employed person carries out a work assignment 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 14a(1)(a) of Regulation No 1408/71.

There is nothing to prevent the E 101 certificate from producing retroactive effects, according to the circumstances.

( see paras 43, 48, 53-54, 57, operative part 2-3 )