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Social security of migrant workers – fraudulently obtained certificate

In its decision of 02.04.2020, the ECJ held that Regulation EC 647/2005 must be interpreted as meaning that the courts of a Member State, which are involved in legal proceedings against an employer who has fraudulently obtained or used E101 or A1 certificates issued to employees working in the Member State,

 may only establish the existence of fraud and, as a consequence, disregard the certificates if they have previously been satisfied,

– that the procedure provided for in Article 84a III of this Regulation was initiated without delay. The relevant institution of the issuing State shall be requested to verify whether the certificates were issued legitimately, based on the known facts, and

– that the relevant institution of the issuing State has failed to carry out such an examination and has not issued an opinion within a reasonable time and has declared the certificates to be invalid or withdrawn.

Furthermore, according to the ECJ, Article 11 I of Regulation EC 647/2005 and the principle of the primacy of Union law must be interpreted in such a way that civil courts are prevented from ordering employers to pay compensation for damages based on the criminal conviction of the fraud alone.

 

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