Case C‑359/16

Criminal proceedings

against

Altun and Others

(Request for a preliminary ruling from the Hof van Cassatie)

(Reference for a preliminary ruling — Migrant workers — Social security — Applicable legislation — Regulation (EEC) No 1408/71 — Article 14(1)(a) — Posted workers — Regulation (EEC) No 574/72 — Article 11(1)(a) — E 101 certificate — Probative value — Certificate fraudulently obtained or relied on)

Summary — Judgment of the Court (Grand Chamber), 6 February 2018

1. Social security—Migrant workers—Applicable legislation—Workers posted to a Member State other than that in which the employer is established—E 101 certificate issued by the competent institution of the Member State of establishment—Probative value for the social security institutions of other Member States—Limits—Obligation to reconsider in the event of doubts expressed by an institution of another Member State—Conciliation procedure before the Administrative Commission for Social Security in the event of disagreement—Infringement proceedings in the event of non-conciliation

   (Art. 4(3) TEU; Art. 259 TFEU; Council Regulations No 1408/71, Arts 14(1)(a), 80 and 84a(3) and No 574/72, Art. 11(1)(a))

2. Social security—Migrant workers—Applicable legislation—Workers posted to a Member State other than that in which the employer is established—E 101 certificate issued by the competent institution of the Member State of establishment—Probative value for the social security institutions of other Member States and for the courts of those Member States—Certificate fraudulently obtained or relied upon—Request from the Member State to which the worker is posted to review and withdraw that certificate in the light of evidence collected in the course of a judicial investigation finding that it was fraudulently obtained—Failure of the issuing institution to take that evidence into consideration for the purpose of reviewing the grounds for the issue of that certificate—Right of the national court to disregard the certificate

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

1.  See the text of the decision.

   (see paras 38-45)

2.  Article 14(1)(a) of Council Regulation (EEC) No 1408/71 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, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 631/2004 of the European Parliament and of the Council of 31 March 2004, and Article 11(1)(a) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down rules for the application of Regulation No 1408/71, as amended and updated by Regulation No 118/97, must be interpreted as meaning that, when an institution of a Member State to which workers have been posted makes an application to the institution that issued E 101 certificates for the review and withdrawal of those certificates in the light of evidence, collected in the course of a judicial investigation, which supports the conclusion that those certificates were fraudulently obtained or relied on, and the issuing institution fails to take that evidence into consideration for the purpose of reviewing the grounds for the issue of those certificates, a national court may, in the context of proceedings brought against persons suspected of having used posted workers ostensibly covered by such certificates, disregard those certificates if, on the basis of that evidence and with due regard to the safeguards inherent in the right to a fair trial which must be granted to those persons, it finds the existence of such fraud.

   The application of EU legislation cannot be extended to cover transactions carried out for the purpose of fraudulently or wrongfully obtaining advantages provided for by EU law (see, to that effect, judgments of 5 July 2007, Kofoed, C‑321/05, EU:C:2007:408, paragraph 38, and of 22 November 2017, Cussens and Others, C‑251/16, EU:C:2017:881, paragraph 27).

   In particular, findings of fraud are to be based on a consistent body of evidence that satisfies both an objective and a subjective factor.

   The objective factor consists in the fact that the conditions for obtaining and relying on an E 101 certificate, laid down in Title II of Regulation No 1408/71 and referred to in paragraph 34 of the present judgment, are not met.

   The subjective factor corresponds to the intention of the parties concerned to evade or circumvent the conditions for the issue of that certificate, with a view to obtaining the advantage attached to it.

   The fraudulent procurement of an E 101 certificate may thus result from a deliberate action, such as the misrepresentation of the real situation of the posted worker or of the undertaking posting that worker, or from a deliberate omission, such as the concealment of relevant information, with the intention of evading the conditions governing the application of Article 14(1)(a) of Regulation No 1408/71.

   (see paras 49-53, 61, operative part)