European companies established outside of France may temporarily post their employees in France. When doing so, they must comply with a number of compulsory conditions and formalities. One of them concerns the so-called A1 form.
Free movement of people means people can travel easily and stay in Europe, however if it is for work purposes, this A1 form is essential.
What is the A1 form?
The A1 form certifies which social security legislation applies to the holder of the form. This document is issued by the country whose legislation the employee is subject to. This document is required in the following cases:
- In case of “posting”: when an employee is sent to work temporarily in another EU country on his behalf for a maximum period of 24 months,
- When someone is normally self-employed in an EU country and goes to pursue a similar activity in another country for a maximum period of 24 months,
- When a worker is normally employed in more than one EU country at the same time or in alternation,
- When someone is self-employed in more than one EU country at the same time or in alternation,
- When a worker pursues both an employed and self-employed activity in different EU countries,
- When a civil servant is pursuing activities in more than one EU country,
- When it is in the worker’s interest to derogate from any of the above rules.
Principal rules concerning the A1 form
When an employee is “posted” abroad by an employer, the A1 form allows attesting that he remains affiliated to the social security system of the State of origin and thus avoid paying social security contributions in more than one country.
The issuance of this A1 form might take time, the French labor administration does accept this principle under the conditions that request has been filed with the home country and that the original A1 form is provided within 2 months.
This form has to be kept at the disposal of the Administration: since April 1st, 2017, a procedure of control of “posted” workers has been established in France, which may lead to an administrative sanction in case of breach (new Article 114-15-1 of the Social Security Code).
Regularly, the Court of Justice of the European Union and the national Courts (so-called “Cour de cassation” in France) recall the binding nature of this A1 form for the institutions of other Member States as long as they are not withdrawn or declared invalid by the Member State in which they were established.
The jurisdictions of the host State cannot control the A1 form
In line with this, the Court of Justice of the European Union still recently reminded that the A1 form cannot be controlled by the jurisdictions of the host State even though they consider that the requirements of the posting are not fulfilled (CJUE, April 27, 2017, case 620/17, or Court of cassation, May 31, 2018, n°15-16832).
In fact, if the jurisdiction of the host State has any doubt on the regularity of a worker’s A1 form, it must first contest its validity alongside the institution which delivered it (Court of cassation, May 31, 2018, n°15-16832 and according to the June 12, 2009 notices establishing a dialogue and conciliation procedure concerning the validity of documents, the determination of the applicable legislation and the provision of benefits under Regulation (EC) No 883/2004 of the European Parliament and of the Council 2010/C 106/01).
But this presumption of regularity often leads to litigation, especially when, on the host State’s territory, the A1 form holder does not execute the activity which is conform to the initial conditions which justified the delivery of the form.
The jurisdictions of the host State might control the A1 form
In order to rectify this type of situation and contrary to its previous case law, the Court of Justice of the European Union admitted for the first time that the jurisdictions of the host State might control the A1 form (CJUE, February 6, 2018, case 359/16).
Within this decision, the Court of Justice of the European Union explains that when the institution of the host State of the posted worker has submitted a request of reconsideration and withdrawal of the documents in the light of information gathered as the result of a judicial inquiry, which revealed that these certificates were fraudulently obtained or invoked, and that the issuing institution has failed to take these elements into account, the national Court may, in the context of a procedure against persons suspected of having used posted workers under such certificates, dismiss them if, on the basis of those elements and in accordance with the guarantees of the right to a fair trial, the Court notes the existence of such fraud.
But the Court of Justice of the European Union also assorted this principle with multiple precautions:
- The institution of the receiving State must refer to the issuing institution of the form on the basis of concrete evidences that they were obtained fraudulently (which implies the characterization of an intentional element),
- These elements can only be invoked in a judicial procedure if the issuing institution refrains from conducting a review within a reasonable timeframe,
- People who are accused of having used posted workers fraudulently must be able to refute the elements on which this procedure is based, while respecting the guarantees related to the right to a fair trial.
In practice, even if this decision is a first in case-law concerning the A1 form, it might be difficult to apply the judicial procedure of the withdrawal of the forms with all these precautions.
Recently, the French Court of cassation referred to the Court of Justice of the European Union a new question for a preliminary ruling in order to know if the above-mentioned decision also applies to a litigation relating to the offence of undeclared work (Court of cassation, January 10, 2018, n°16-16713).
The worker posted to replace another posted worker is covered by the social security scheme from his workplace
The Court of Justice of the European Union recently specified that a posted worker is covered by the social security scheme from his workplace when he replaces another posted worker, even if both workers have not been seconded by the same employer (Case C-527/16, September 6, 2018).
However, the A1 form attesting the worker’s affiliation to the social security with the initial Member State is binding both the social security institutions and national courts of the hosting State, which are therefore not entitled to rule on the form’s validity or withdraw it (except in case of fraud or abuse of rights, CJUE Feb. 6, 2018, case C-359/16).
This solution applies even when the competent authorities of the two Member States have approached the Administrative commission for the coordination of the social security systems and that it concluded that the certificate has been wrongly issued and that it had to be withdrawn.
In addition, the Court notes that an A1 form may be applied retroactively even though, on the date of issuance of the certificate, the competent institution of the Member State in which the activity is carried out, had already decided that the concerned worker should be subject to the compulsory insurance of this Member State.
A1 is one formality among others, secondments in Europe are getting more and more under the scrutiny of policymakers, especially via the Platform that EU countries would like to set up in order to strengthen the monitoring of secondment’s conditions throughout Europe. In the latest French labour law of September 5, 2018, some short term secondments in specific sectors will enjoy less formalities, but sanctions will be heavier on the other side.
