Posting fraud – Opinion Advocate General in Altun (C-359/16)

(14-12-2017) National court may disapply A1 certificates when finding fraud.

The Court of Justice of the European Union (CJEU) will soon decide on a key issue in European social security law (see Altun C-359/16).

When there is doubt about the validity of an A1 certificate, the applicable Regulations provide for a dialogue and conciliation procedure between the Member States involved. The question is, can a national court or tribunal itself act when fraud has been established? A controversial issue. After all, the case law on the binding nature of A1 forms and respect for the dialogue and conciliation procedure does not see eye to eye with the case law on fraud and abuse of EU law.

The Advocate General's basic assumption: citizens may not invoke EU law in the event of fraud or abuse. Moreover: the national court or tribunal has the duty to fight fraud by denying them to ressort to this law. According to the Advocate General at the CJEU, the result would otherwise be unacceptable. In addition, socio-economic considerations likewise support the fact that priority should be given to fighting fraud.

But, the national court or tribunal must first properly establish that a case of fraud exists. In the absence of a legal definition of fraud, the Advocate General advises a dual approach:
1. The national court or tribunal must establish an objective criterion: the conditions to obtain the advantage sought have not been met in fact (here: the 'advantageous' exception applicable to certain cases of posting).
2. And there is a subjective criterion: the persons involved intentionally concealed the fact that the conditions to issue the A1 certificate were not met in fact.
Once both criteria have been established in the context of adversarial proceedings, the national court or tribunal may disapply the A1 certificate.

The Advocate General argues that this approach is not necessarily contrary to the principle of legal certainty, the principle of sincere cooperation between the Union and the Member States, or contrary to the Regulations.

The CJEU will deliver a judgment in the coming months. IRIS will follow up on this case.

(by Jeroen Lorré)