Global Law Experts Logo

Find a Global Law Expert

Specialism
Country
Practice Area
awardsr

Awards

Since 2010, the Global Law Experts annual awards have been celebrating excellence, innovation and performance across the legal communities from around the world.

Posting of workers-a more restrictive “non-replacement condition”

posted 6 years ago

In Alperind
GmbH and Others (C-527/16) the European Court of Justice confirms (once again)
the binding and retroactive effect of the Portable Document A1, adds to the
debate in regard to the interpretation of the ruling in Altun
and Others(C-359/16),
and rules for a restrictive interpretation of the
“non-replacement condition”.

The case in the main
proceedings

The dispute
in the main proceedings concerns the determination of the social security
legislation applicable to workers successively posted by two Hungarian
undertakings to an undertaking established in Austria.

Question referred for
a preliminary ruling

The Supreme
Administrative Court of Austria referred to the ECJ as regards to the following
issues at hand:

·        
The
binding effect of a Portable Document A1 on a court or tribunal of a Member
State other than that in which the document was issued.

·        
The
binding effect of a Portable Document A1 in the context of findings and recommendations
made by the Administrative Commission for the
Coordination of Social Security Systems.

·        
The
retroactive effect of a Portable Document A1, when issued after the worker was
subjected to the social security system of the host Member State.

·        
The
“non-replacement condition” applicable to posted workers in the context of
successive postings by different employers (i.e.
posting workers to the same undertaking established in another Member State).

It must be
observed that the “non-replacement condition” is at the origin of the
disagreement between the parties in the main proceedings.

The European Court of
Justice ruling and its implications

1 Binding
and retroactive effect of the PDA1

Following
the Opinion delivered by Advocate General Saugmandsgaard Øe and settled
case-law, the ECJ confirms the binding and retroactive effect of the Portable
Document A1, regardless the particular circumstances invoked by the Salzburg
Regional Health Insurance Fund and the Austrian Federal Minister of Labour,
Social Affairs and Consumer Protection.

However,
the ruling adds to the debate in regard to the interpretation of another
landmark judgment, Altun and Others(C-359/16).

In the
present case, the Court underlines that “apart
from cases of fraud or abuse of rights
”, accepting that a competent
national institution could, by bringing proceedings before a court of the host
Member State to which the institution belongs, “have an A1 certificate declared invalid”, the sincere cooperation
system would be undermined.

It follows that
in case of fraud and abuse of rights, the court of the host Member State could
declare the PDA1 invalid. The social security subjection to the host Member
State legislation would be then retroactively established, and the person
concerned subject to the legislation of two countries, at least for a certain
period.

In Altun
and Others(C-359/16), the ECJ held that “in
the context of proceedings brought against persons suspected of having used
posted workers ostensibly covered by such certificates”
the national court may” disregard those certificates”.

Disregard
the PDA1 would presumably not involve a subjection to the social security
systems of two Member States, on the contrary, invalidate a PDA1, is equivalent
to withdrawal of such a certificate, and results in a double social security
subjection.

It must be
observed that in
Altun and Others(C-359/16). Advocate General
SAUGMANDSGAARD ØE, took the view that the situation of double social security
cover, is inherent in a finding of fraud.

In Commission
v Belgium
(C-356/15), the ECJ recalled that pursuant to the ruling in Altun and
Others, a national court may disregard the PDA1 and must determine whether the
persons suspected of having used posted workers ostensibly covered by
certificates obtained fraudulently, may be held liable under the applicable
national law.

Prima
facie, such a determination cannot result in double social security subjection,
but only in an eventual conviction of the persons suspected of having used
posted workers ostensibly covered by certificates obtained fraudulently.

In regard
to the failure of the Member State that issued the PDA1 to carry out a review
and if relevant withdraw the said certificate, Articles 258 and 259 TFEU
provide the appropriate remedies.

In any
circumstances, the ECJ rejected the argument invoked by Belgium, justifying a
temporary subjection to the legislation of the host Member State, on grounds of
Article 6(1)(a) of Regulation No 987/2009.

Another
important highlight is the reference to decisions by which the competent
institution of the Member State in which the activity is carried out, decides
to make the workers concerned subject to compulsory insurance under its
legislation. A document materialises such a decision, cannot be considered as
showing the position of the person concerned, within the meaning of Article
5(1) of Regulation No 987/2009.

It should
be understood that in any circumstances, the competent institution of the
Member State in which the activity is carried out, may not proceed to an
automatic subjection to its own legislation.

2 The
“non-replacement condition”

Contrary to
the  Opinion delivered by Advocate
General Saugmandsgaard Øe, the ECJ observes that reading in conjunction the
wording of Article 12(1) Regulation No 883/2004, in the version in force at the
beginning of the period concerned, the recital 17 of Regulation No 883/2004 and
recitals 5 and 8 of the said regulation, to grant the equality of treatment of
all persons occupied in the territory of a Member State, the legislation
applicable as a general rule is that of the Member State in which the person
concerned pursues his activity.

The
exemption provided for by Article 12(1), cannot be justified in case of
recurrent use of posted workers to fill the same post, even though the
employers (sending companies) are different.

Although
the ruling addresses the wording of Article 12(1) Regulation 883/2004 in the
version in force at the beginning of the period concerned by the case at issue
sent to replace another person”, it
is obviously applicable to the amended Article 12(1), “sent to replace other posted person”.

Having regard to all of the foregoing
considerations, the answer to the third question is that Article 12(1) of
Regulation No 883/2004 must be interpreted as meaning that, if a worker who is
posted by
his employer to carry out
work in another Member State is replaced by another worker posted by another
employer, the latter employee must be regarded as being ‘sent to replace another
person’, within the meaning of that provision, so that he cannot benefit from
the special rules laid down in that provision in order to remain subject to the
legislation of the Member State in which his employer normally carries out its
activities

Recipients
of services running projects by making “permanent” use of posted staff (for the
same work), will be seriously affected.

The judgment
will raise a large academic debate.

It is
interesting to understand how the restrictive “non-replacement condition” will
be practically implemented. The Administrative Commission for the Coordination
of Social Security Systems will probably bring more clarity. In any
circumstances, contracts of provision of services must be amended to reflect
the recipient liability in case of successive postings by different employers.

To further determine
project feasibility and cost, the present ruling must be considered, in
addition to the relevant legal instruments govern the posting of workers. Other
expected rulings will bring more clarity in regard to certain particular
situations.

 

 

 

 

 

Author

Find the right Legal Expert for your business

The premier guide to leading legal professionals throughout the world

Specialism
Country
Practice Area
LAWYERS RECOGNIZED
0
EVALUATIONS OF LAWYERS BY THEIR PEERS
0 m+
PRACTICE AREAS
0
COUNTRIES AROUND THE WORLD
0

Join

who are already getting the benefits
0
Sign up for the latest legal briefings and news within Global Law Experts’ community, as well as a whole host of features, editorial and conference updates direct to your email inbox. Naturally you can unsubscribe at any time.

Online Casino Reviews

  • Freeroll Poker Tournaments For Real Money
  • Australian Online Casino Real Money
  • Best Slot App To Win Real Money
  • Online Casino Real Money Australia
  • Best Paying Online Pokies
  • Wizard Of Oz Online Slots
  • All Slots Casino Mobile
  • Best Online Poker App Real Money
  • Best Online Casino To Play Roulette
  • Is Online Casino Legal
  • Online Casino That Accepts Paypal
  • Play Roulette For Real Money
  • Slot Apps To Win Real Money
  • Real Money Slots Online Usa
  • Safe Online Casino
  • Wizard Of Oz Slots
  • Real Online Pokies Nz
  • Biggest Online Casino In The World
  • Online Casino Pay With Paypal
  • Online Casino That Accept Paypal
  • Online Casino Canada Real Money
  • 3 Card Poker Online Real Money
  • Online Slots Real Money Canada
  • Best Online Poker Sites For Real Money
  • Real Money Poker App Android Usa
  • How To Make Money From Online Casino Bonuses
  • Real Money Poker App Iphone
  • How To Play Blackjack Online For Real Money
  • Best Slots To Play
  • Top 10 Online Pokies
  • Best Poker Apps Real Money
  • Online Casino Legal
  • Best Payout Online Casino Uk
  • Win Money Online Slots
  • Online Poker Nj Real Money
  • How To Win Online Slots
  • Casino Gaming License
  • Play Real Pokies Online
  • Blackjack Sites For Real Money
  • Real Money Casino Games For Android
  • Best New Online Slots
  • Flaming 777 Slots Games
  • Online Blackjack With Live Dealers
  • How To Play Online Slots
  • Facebook Casino Games Real Money
  • Online Casino With No Minimum Deposit
  • How To Beat Online Slots
  • Online Casino License
  • The Big Payback Slots
  • Royal Vegas Online Casino Withdrawal
  • Online Casino Minimum Deposit 5
  • Online Pokies Real Money Australia
  • Las Vegas Usa Online Casino
  • Real Money Poker App Android
  • Wheel Of Fortune Slots
  • Game Of Thrones Slots
  • Online Poker Real Money Usa Legal
  • Best Online Casino European Roulette
  • Blackjack Online Real Money Paypal
  • Online Video Poker Real Money Usa
  • How To Create An Online Casino
  • Lucky Nugget Online Casino Mobile
  • How To Withdraw Money From Online Casino
  • Platinum Play Online Casino Download
  • Online Casino For Usa Players
  • Best Online Casino Usa Real Money
  • Online Roulette Real Money Usa
  • Best Real Money Poker Sites
  • Android Slots Real Money
  • How To Start An Online Casino Business
  • How To Start An Online Casino
  • How To Start An Online Gambling Site
  • Best Online Casino For Blackjack
  • Play Baccarat Online For Money
  • Online Pokies New Zealand
  • Best Slots To Play At Golden Nugget
  • Slots Of Vegas Online Casino
  • Best Online Pokies Site
  • How To Beat Online Roulette
  • New Zealand Online Pokies
  • Online Poker Mobile Real Money
  • Which Online Slots Payout The Most
  • Is Online Casino Legal In India
  • Online Casino Software For Sale
  • Best Online Casino For Craps
  • Hard Rock Casino Slots
  • Win Real Money Online Pokies
  • Online Casino With Highest Payout Percentage
  • Poker Apps With Real Money
  • Online Roulette Real Money Review
  • Full Tilt Poker Real Money
  • Online Casino 5 Dollar Minimum Deposit
  • Online Roulette With Real Money
  • Best Online Roulette For Real Money
  • I Migliori Casino Online Italiani
  • Best Payout Online Slots
  • How To Play Baccarat Online
  • Play Casino Card Game Online
  • Play Blackjack Online For Real Money
  • Best Paying Online Slots
  • Casino License Cost
  • Online Poker Real Money California
  • Safe Online Casino Australia
  • Online Roulette Australia Real Money
  • Online Poker Real Money Texas
  • Online Roulette Real Money Paypal
  • Online Slots Australia Real Money
  • Golden Nugget Online Casino Review
  • Casino Games To Win Real Money
  • Online Pokies Australia Real Money
  • Online Gambling Blackjack Real Money
  • Win Real Money Playing Slots
  • How To Win Roulette Online
  • Aristocrat Pokies Online Real Money
  • Hollywood Casino Online Slots
  • Play Online Keno For Real Money
  • What's The Best Online Casino
  • Triple Double Diamond Slots
  • Play Roulette Online With Real Money
  • Roulette Online For Real Money
  • Play Roulette Online Real Money
  • Best Online Pokies Real Money
  • Big Red Pokies Online
  • How To Win At Online Blackjack
  • What Is The Best Online Roulette Site
  • Real Money Online Pokies
  • Spin To Win Slots
  • Ruby Slots Online Casino
  • Wheel Of Fortune Online Casino
  • Spin Palace Flash Casino Online
  • Online Poker Real Money App
  • Online Casino With Paypal Deposit
  • How To Win At Online Roulette
  • Can You Win Real Money On Slot Apps
  • Is Ignition Casino Safe
  • Online Casino Blackjack Real Money
  • Online Casino Win Real Money Usa
  • How To Make Money Online Casino
  • Online Casino Real Money Reviews
  • Slot Games To Win Real Money
  • Jackpot City Online Casino Download
  • Online Pokies Real Money
  • Casino War Online Real Money
  • Online Casino No Minimum Deposit
  • Play Wheel Of Fortune Slots Online
  • Best Online Casino Game To Win Money
  • Online Casino Without Wagering Requirements
  • Online Slots For Real Money Usa
  • Legal Online Casino Australia
  • How Do Online Slots Work
  • Best Online Casino For Us Players
  • Online Play Casino Roulette Game
  • Online Blackjack Real Money Australia
  • Real Casino Games Real Money Online
  • Online Slot Machines Real Money Paypal
  • The Best Online Casino For Roulette
  • What Online Casino Pays Out The Most
  • Start Your Own Online Casino
  • Legal Online Casino
  • Online Live Roulette Casino Game
  • Playing Blackjack Online For Real Money
  • Online Penny Slots Real Money
  • Best Online Blackjack For Money
  • How To Win Online Roulette
  • Real Money Poker Sites Usa
  • Best Time To Play Slots
  • Online Keno For Real Money
  • Best Payout Online Slots Uk
  • Online Slots Real Money Reviews
  • Best Online Pokies Nz
  • What States Allow Online Gambling
  • Best Real Money Poker App
  • Online Slots To Win Real Money
  • Real Money Slots App Iphone
  • Jackpot City Flash Casino Online
  • Ignition Casino Legit
  • All Star Slots Casino
  • How To Play Online Casino
  • Real Time Gaming Slots
  • Online Video Poker Real Money
  • How To Play Roulette Online For Money
  • How To Win On Online Slots
  • Age Of Gods Slots
  • Online Real Casino Money Games
  • Best Online Slots To Play
  • Online Poker California Real Money
  • Is Jackpot City Casino Legit
  • How To Win At Online Slots
  • Play Poker For Real Money
  • Safe Online Pokies Australia
  • Best Way To Play Slots
  • How To Play Casino Online
  • Play Online Roulette For Money
  • Online Casino Australia Real Money
  • Which States Allow Online Gambling
  • Play Keno Online Real Money
  • How To Win Online Blackjack
  • Online Blackjack With Real Dealers
  • How To Open Online Casino
  • What Are The Best Online Slots To Play
  • Big Win Casino Slots
  • Spin Palace Online Casino Australia
  • Best Slots To Win On
  • Casino Slots Win Real Money
  • Slots Magic Online Casino
  • Blackjack Online For Real Money
  • Slot Machine App Win Real Money
  • Online Casino Not Paying Out
  • Slots That Pay Out Real Money
  • Online Pokies Australia Reviews
  • Online Casino Minimum Deposit 1
  • Jackpot City Online Casino Review
  • Live Dealer Baccarat Online Casino
  • Online Casino Apps For Android
  • Online Casino Paypal Deposit Australia
  • Online Casino With Live Dealer
  • How To Play Blackjack Online
  • Slots To Win Real Money
  • Wheel Of Fortune Online Slots
  • Play Quick Hit Slots Online
  • Can You Count Cards In Online Blackjack
  • Palace Of Chance Online Casino
  • How To Play Roulette Online
  • Good Slots To Play
  • Which Online Casino Pays Out The Most
  • Heart Of Vegas Casino Slots
  • Best Online Casino For Canadians
  • Australian Online Pokies Real Money
  • Mohegan Sun Online Casino Nj
  • Online Casino Live Games Best Uk
  • Best Online Casino Australia Reviews
  • Play Pokies Online Real Money
  • Best Online Casino For Usa Players
  • How To Win Online Casino
  • Play Blackjack For Real Money
  • Best Slots On Bovada
  • Online Keno Real Money Usa
  • Online Slots Real Money Paypal
  • Best Poker Sites For Real Money
  • Safe Casino Sites
  • The Best Online Slots
  • Play Keno For Real Money
  • Real Online Pokies Australia
  • Queen Of The Nile Slots
  • Mummys Gold Casino Online Casino
  • Play Keno Online For Real Money
  • Best Poker Websites Real Money
  • Lucky Nugget Online Casino Download
  • Best Online Casino For Roulette
  • Play Roulette For Money Online
  • Video Slots Mobile Casino
  • Best Time To Play Online Slots
  • Best Real Money Online Poker
  • Play Blackjack Online With Friends
  • Play Baccarat Online For Real Money
  • Is Silver Oak Casino Legit
  • Big Fish Casino Real Money
  • Can You Win Real Money On Caesars Slots
  • Game Of Thrones Slots Casino
  • Best Online Slots Payout Percentage
  • Play Online Pokies For Real Money
  • Play Pokies Online Australia
  • High 5 Casino Real Slots
  • The Best Online Pokies
  • Online Pokies That Accept Paypal
  • Heart Of Vegas Slots
  • How To Play Online Roulette
  • Best Poker App Real Money
  • Best Online Casino Fast Payout
  • Best Slots At Wind Creek Casino
  • Online Casino 10 Minimum Deposit
  • Play Roulette Online For Money
  • Us Real Money Poker Sites
  • How To Win In Online Casino
  • Best Online Pokies Australia Review
  • Where To Play Roulette Online For Real Money
  • How To Beat Online Casino Slot Machines
  • Highest Payout Online Slots
  • Best Paying Online Casino Slots
  • Golden Tiger Online Casino Review
  • Online Casino With Live Dealers
  • Play Roulette Online For Real Money
  • Best Slots To Play At Casino
  • Slot Machine Games Win Real Money
  • Most Popular Online Casino Games
  • Casino Slots App Real Money
  • Online Casino Real Money Canada
  • Online Real Money Pokies
  • Online Roulette Game Real Money
  • Online Casino Roulette Real Money
  • Best Place To Play Roulette Online
  • Online Casino Book Of Ra Paypal
  • Online Blackjack With Real Money
  • Play Online Blackjack For Real Money
  • Is There A Slot Machine App For Real Money
  • Royal Vegas Online Casino App
  • Best Casino Slots To Play
  • Most Popular Online Slots
  • Best Way To Win At Slots
  • Slots You Can Win Real Money
  • Play Roulette Online Real Money Usa
  • Online Casino Real Money Paypal
  • Online Casino Australia Legal
  • Treasures Of Troy Slots
  • Online Casino For Us Players
  • Where Can I Play Blackjack Online For Real Money
  • Online Casino Paypal Book Of Ra
  • Online Roulette For Real Money
  • Best Online Blackjack Real Money
  • Poker App For Real Money
  • Jackpot Magic Slots Facebook
  • Best Online Casino Real Money Usa
  • Best Online Casino New Zealand
  • The Four Kings Casino And Slots
  • How To Play Slots Online
  • Best Online Pokies Australia
  • Usa Online Slots Real Money
  • Real Money Casino Android App
  • Online Slot Machines That Pay Real Money
  • Online Pokies Real Money Nz
  • Online Pokies Real Money App
  • Play Igt Slots Online
  • Best Casino Slots To Win Money
  • Online Casino Business For Sale
  • Play N Go Slots
  • Poker Apps For Real Money
  • Lucky Slots Real Money
  • All Slots Online Casino
  • Best Online Pokies Real Money Australia
  • Online Pokies Win Real Money
  • Best Online Casinos For Roulette
  • Pay Slots For Real Money
  • Best Online Poker Real Money
  • Slots App Win Real Money
  • Play Online Roulette For Real Money
  • Is Ignition Casino Legit
  • Wheel Of Fortune Slots Online
  • Lotsa Slots Real Money
  • Video Poker Online Real Money
  • Online Slots Usa Real Money
  • Play Blackjack Online Real Money
  • Jackpot City Online Pokies
  • Video Slots Online Casino
  • Is 888 Casino Legit
  • Online Slot Games That Pay Real Money
  • Prepaid Visa Card Online Casino
  • How To Stop Online Gambling
  • Best Slots To Play Online
  • Online Blackjack For Real Money
  • Slot Apps For Real Money
  • Mobile Slots Win Real Money
  • Newsletter Sign Up

    About Us

    Global Law Experts is dedicated to providing exceptional legal services to clients around the world. With a vast network of highly skilled and experienced lawyers, we are committed to delivering innovative and tailored solutions to meet the diverse needs of our clients in various jurisdictions.

    Social Posts

    See More:

    Contact Us

    Stay Informed

    Join Mailing List

    GLE