Posted workers: a court can rule out social security certificate in fraud cases
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    Posted workers: a court can rule out social security certificate in fraud cases

    © Belga
    This case sets a precedent for Belgium, and indeed other EU countries, in fraud cases involving posted workers.
    © Belga

    The European Court of Justice (ECJ) held on Tuesday that, in the case in point, a Belgian court could refuse to rely upon the social security certificate of posted workers coming from Bulgaria. Relevant circumstances for this rule to apply would be where elements, in the given case, enable the court to believe that there has been a particular fraud.

    The case of a Belgian construction company, on which penalties were imposed by the Antwerp Court of Appeal, was referred to the ECJ. The company had subcontracted the operation of its building sites to Bulgarian companies. These companies had sent workers to Belgium, on the basis of their being covered by fraudulent social security certificates. An investigation conducted by the Belgian courts enabled the revelation that the Bulgarian companies were not carrying out any significant business activity in Bulgaria. Moreover, the official Bulgarian body responsible for issuing the social security certificates had not provided a satisfactory response to Belgian suspicions.

    The Court of Cassation therefore asked the ECJ to determine whether it was consequently possible to dismiss such a certificate, when the facts before them enabled a record of the certificate in question either being obtained or cited fraudulently. The ECJ held in its judgement on Tuesday that, within the European Union, there is a legal principle known as loyal cooperation. In essence this also implies the principle of mutual trust. Thus, in a given case, the issuing authorities commit to carry out a correct assessment of the relevant facts, and to guarantee the accuracy of the particulars featuring in the certificate. In exchange, the relevant authority of destination respects the presumption of regularity, which flows from it.

    As the ECJ observed, the Bulgarian authorities failed to respond adequately to the Belgian suspicions, which enables the Belgian judge to dismiss the fraudulent certificates in this case. The ECJ concluded, “It is also within the judge’s remit to determine whether the individuals suspected of resorting to the use of posted workers, on the pretext of fraudulently obtained certificates, are likely to be held liable on the basis of applicable national law.”

    Lars Andersen
    The Brussels Times