Zaklad Ubezpieczen Spolecznych Oddzial w Toruniu (Migrant workers - Social security - Judgment) [2023] EUECJ C-422/22 (16 November 2023)

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(Reference for a preliminary ruling – Migrant workers – Social security – Legislation applicable – Regulation (EC) No 987/2009 – Articles 5, 6 and 16 – A1 certificate – Inaccuracy of the particulars – Withdrawal on the initiative of the issuing institution – Obligation for the issuing institution to initiate a dialogue and conciliation procedure with the competent authority of the host Member State – None)

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Najwyższy (Supreme Court, Poland), made by decision of 27 April 2022, received at the Court on 22 June 2022, in the proceedings

composed of A. Prechal, President of the Chamber, F. Biltgen, N. Wahl, J. Passer and M.L. Arastey Sahún (Rapporteur), Judges,

– the Zakład Ubezpieczeń Społecznych Oddział w Toruniu, by J. Jaźwiec-Blecharczyk, radca prawny,

– the Belgian Government, by S. Baeyens and L. Van den Broeck, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 22 June 2023,

1 This request for a preliminary ruling concerns the interpretation of Articles 6 and 16 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (OJ 2009 L 284, p. 1), as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012 (OJ 2012 L 149, p. 4) (‘Regulation No 987/2009’).

2 The request has been made in proceedings between the Zakład Ubezpieczeń Społecznych Oddział w Toruniu (Social Insurance Institution, Toruń Branch, Poland) (‘the SII’) and TE concerning the decision of the SII to withdraw from TE the A1 certificate stating that TE was subject to Polish social security legislation for the period from 22 August 2016 to 21 August 2017.

3 Title II of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1, and corrigendum OJ 2004 L 200, p. 1), as amended by Regulation No 465/2012 (‘Regulation No 883/2004’), entitled ‘Determination of the legislation applicable’, comprises Articles 11 to 16 thereof.

‘1. Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Such legislation shall be determined in accordance with this Title.

(a) a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State;

5 Article 13 of that regulation, entitled ‘Pursuit of activities in two or more Member States’, provides in paragraph 2 thereof:

‘A person who normally pursues an activity as a self-employed person in two or more Member States shall be subject to:

(a) the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in that Member State;

(b) the legislation of the Member State in which the centre of interest of his/her activities is situated, if he/she does not reside in one of the Member States in which he/she pursues a substantial part of his/her activity.’

6 Under Article 72(a) of Regulation No 883/2004, the Administrative Commission for the Coordination of Social Security Systems (‘the Administrative Commission’) is responsible, inter alia, for dealing with all administrative questions or questions of interpretation deriving from the provisions of Regulation No 883/2004 or from those of Regulation No 987/2009.

4. The institutions and persons covered by this Regulation shall have a duty of mutual information and cooperation to ensure the correct implementation of this Regulation.

6. In the event of difficulties in the interpretation or application of this Regulation which could jeopardise the rights of a person covered by it, the institution of the competent Member State or of the Member State of residence of the person concerned shall contact the institution(s) of the Member State(s) concerned. If a solution cannot be found within a reasonable period, the authorities concerned may call on the Administrative Commission to intervene.

‘(2) Closer and more effective cooperation between social security institutions is a key factor in allowing the persons covered by [Regulation No 883/2004] to access their rights as quickly as possible and under optimum conditions.

(22) Informing the persons concerned of their rights and obligations is a crucial component of a relationship of trust with the competent authorities and the Member States’ institutions. …’

‘The institutions shall without delay provide or exchange all data necessary for establishing and determining the rights and obligations of persons to whom [Regulation No 883/2004] applies. Such data shall be transferred between Member States directly by the institutions themselves or indirectly via the liaison bodies.’

‘1. Member States shall ensure that the necessary information is made available to the persons concerned in order to inform them of the changes introduced by [Regulation No 883/2004] and by [this regulation] to enable them to assert their rights. They shall also provide for user friendly services.

2. Persons to whom [Regulation No 883/2004] applies shall be required to forward to the relevant institution the information, documents or supporting evidence necessary to establish their situation or that of their families, to establish or maintain their rights and obligations and to determine the applicable legislation and their obligations under it.

4. To the extent necessary for the application of [Regulation No 883/2004] and [this regulation], the relevant institutions shall forward the information and issue the documents to the persons concerned without delay and in all cases within any time limits specified under the legislation of the Member State in question.

11 Article 5 of Regulation No 987/2009, entitled ‘Legal value of documents and supporting evidence issued in another Member State’, provides:

‘1. Documents issued by the institution of a Member State and showing the position of a person for the purposes of the application of [Regulation No 883/2004] and of [this regulation], and supporting evidence on the basis of which the documents have been issued, shall be accepted by the institutions of the other Member States for as long as they have not been withdrawn or declared to be invalid by the Member State in which they were issued.

2. Where there is doubt about the validity of a document or the accuracy of the facts on which the particulars contained therein are based, the institution of the Member State that receives the document shall ask the issuing institution for the necessary clarification and, where appropriate, the withdrawal of that document. The issuing institution shall reconsider the grounds for issuing the document and, if necessary, withdraw it.

3. Pursuant to paragraph 2, where there is doubt about the information provided by the persons concerned, the validity of a document or supporting evidence or the accuracy of the facts on which the particulars contained therein are based, the institution of the place of stay or residence shall, in so far as this is possible, at the request of the competent institution, proceed to the necessary verification of this information or document.

4. Where no agreement is reached between the institutions concerned, the matter may be brought before the Administrative Commission by the competent authorities no earlier than one month following the date on which the institution that received the document submitted its request. The Administrative Commission shall endeavour to reconcile the points of view within six months of the date on which the matter was brought before it.’

12 Article 6 of Regulation No 987/2009, entitled ‘Provisional application of legislation and provisional granting of benefits’, is worded as follows:

‘1. Unless otherwise provided for in [this regulation], where there is a difference of views between the institutions or authorities of two or more Member States concerning the determination of the applicable legislation, the person concerned shall be made provisionally subject to the legislation of one of those Member States, …

2. Where there is a difference of views between the institutions or authorities of two or more Member States about which institution should provide the benefits in cash or in kind, the person concerned who could claim benefits if there was no dispute shall be entitled, on a provisional basis, to the benefits provided for by the legislation applied by the institution of his place of residence or, if that person does not reside on the territory of one of the Member States concerned, to the benefits provided for by the legislation applied by the institution to which the request was first submitted.

3. Where no agreement is reached between the institutions or authorities concerned, the matter may be brought before the Administrative Commission by the competent authorities no earlier than one month after the date on which the difference of views, as referred to in paragraph 1 or 2 arose. The Administrative Commission shall seek to reconcile the points of view within six months of the date on which the matter was brought before it.

13 Article 15 of that regulation prescribes the procedure for the application of Article 11(3)(b) and (d), Article 11(4) and Article 12 of Regulation No 883/2004.

14 Article 16 of Regulation No 987/2009, headed ‘Procedure for the application of Article 13 of [Regulation No 883/2004]’, provides:

‘1. A person who pursues activities in two or more Member States shall inform the institution designated by the competent authority of the Member State of residence thereof.

2. The designated institution of the place of residence shall without delay determine the legislation applicable to the person concerned, having regard to Article 13 of [Regulation No 883/2004] and Article 14 of [this regulation]. That initial determination shall be provisional. The institution shall inform the designated institutions of each Member State in which an activity is pursued of its provisional determination.

3. The provisional determination of the applicable legislation, as provided for in paragraph 2, shall become definitive within two months of the institutions designated by the competent authorities of the Member States concerned being informed of it, in accordance with paragraph 2, unless the legislation has already been definitively determined on the basis of paragraph 4, or at least one of the institutions concerned informs the institution designated by the competent authority of the Member State of residence by the end of this two-month period that it cannot yet accept the determination or that it takes a different view on this.

4. Where uncertainty about the determination of the applicable legislation requires contacts between the institutions or authorities of two or more Member States, at the request of one or more of the institutions designated by the competent authorities of the Member States concerned or of the competent authorities themselves, the legislation applicable to the person concerned shall be determined by common agreement, having regard to Article 13 of [Regulation No 883/2004] and the relevant provisions of Article 14 of [this regulation].

Where there is a difference of views between the institutions or competent authorities concerned, those bodies shall seek agreement in accordance with the conditions set out above and Article 6 of [this regulation] shall apply.

‘At the request of the person concerned or of the employer, the competent institution of the Member State whose legislation is applicable pursuant to Title II of [Regulation No 883/2004] shall provide an attestation that such legislation is applicable and shall indicate, where appropriate, until what date and under what conditions.’

16 Article 20 of Regulation No 987/2009, entitled ‘Cooperation between institutions’, states:

‘1. The relevant institutions shall communicate to the competent institution of the Member State whose legislation is applicable to a person pursuant to Title II of [Regulation No 883/2004] the necessary information required to establish the date on which that legislation becomes applicable and the contributions which that person and his employer(s) are liable to pay under that legislation.

2. The competent institution of the Member State whose legislation becomes applicable to a person pursuant to Title II of [Regulation No 883/2004] shall make the information indicating the date on which the application of that legislation takes effect available to the institution designated by the competent authority of the Member State to whose legislation that person was last subject.’

17 Article 60 of Regulation No 987/2009, entitled ‘Procedure for applying Articles 67 and 68 of [Regulation No 883/2004]’, provides, in paragraph 4 thereof:

‘Where there is a difference of views between the institutions concerned about which legislation is applicable by priority right, Article 6(2) to (5) of [this regulation] shall apply. For this purpose the institution of the place of residence referred to in Article 6(2) of [this regulation] shall be the institution of the child’s or [children’s] place of residence.’

18 Article 83a(1) of the ustawa o systemie ubezpieczeń społecznych (Law on social security) of 13 October 1998 (Dz. U. of 1998, No 137, position 887), in the version applicable to the facts in the main proceedings (Dz. U. of 2021, position 430), states:

‘A right or obligation established by a final decision of the [Social Insurance Institution] shall be determined again at the request of the person concerned or of [that institution’s] own motion if, after the decision has become final, new evidence is presented or circumstances existing before the adoption of the decision are disclosed which affect that right or obligation.’

19 Article 477^14a of the kodeks postępowania cywilnego (Code of Civil Procedure) provides:

‘The appeal court, where it sets aside a judgment and the decision of the pension authority which preceded it, may refer the case directly to the pension authority for review.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

20 TE – a businessman registered on the Polish business register and pursuing a self-employed activity, the revenue of which is taxed in Poland – signed, on 11 August 2016, a contract with a company established in Warsaw (Poland) under which he was required to provide certain services in France, in the context of a specific project, from 22 August 2016 until the end of that project.

21 On the basis of that contract, an A1 certificate was issued by the SII, under Article 13(2) of Regulation No 883/2004, certifying, pursuant to Article 19(2) of Regulation No 987/2009, that TE was covered by Polish social security legislation for the period from 22 August 2016 to 21 August 2017 (‘the period at issue’).

22 Following a review, of its own motion, the SII established that, during the period at issue, TE pursued his activity in a single Member State, namely the French Republic. Thus, by a decision of 1 December 2017 (‘the contested decision’), the SII, first, withdrew the A1 certificate and, second, found that, in accordance with Article 11(3)(a) of Regulation No 883/2004, TE was not subject to Polish legislation during that period. Taking the view that the relevant provision for determining the legislation applicable to TE was Article 11 of Regulation No 883/2004 and not Article 13 thereof, the SII adopted that decision without having first followed the procedure referred to in Article 16 of Regulation No 987/2009 with a view to coordination with the competent French institution so far as concerns the determination of the legislation applicable to TE.

23 TE brought an action before the Sąd Okręgowy w Toruniu (Regional Court, Toruń, Poland) against the decision at issue. That court considered, first, that, during the period at issue, TE did not work in a single Member State and, accordingly, he was covered by Article 13(2) of Regulation No 883/2004, and, second, that the SII had not exhausted the coordination procedure provided for in Articles 6, 15 and 16 of Regulation No 987/2009, even though that procedure is compulsory for the purposes of determining the legislation applicable. Thus, in the course of the judicial procedure, that court asked the SII to initiate that coordination procedure with the competent French institution, which the SII refused to do, taking the view that that course of action was not justified. In order to avoid a situation in which TE would not be covered by any social security scheme, the Sąd Okręgowy w Toruniu (Regional Court, Toruń) held that, during the period at issue, TE was subject to Polish legislation and, consequently, maintained the A1 Certificate at issue in the main proceedings in force.

24 By judgment of 5 February 2020, the Sąd Apelacyjny w Gdańsku (Court of Appeal, Gdansk, Poland) dismissed the appeal brought by the SII against the judgment delivered by the Sąd Okręgowy w Toruniu (Regional Court, Toruń), thereby upholding that judgment.

25 The SII brought an appeal on a point of law against that judgment before the Sąd Najwyższy (Supreme Court, Poland), the referring court, claiming that, since the withdrawal of the A1 certificate at issue in the main proceedings required the prior exhaustion of the coordination procedure provided for by Regulation No 987/2009, the decision at issue was vitiated by an irregularity which could be remedied only in the context of the proceedings brought before the SII itself. Thus, the judicial decisions delivered by the Sąd Okręgowy w Toruniu (Regional Court, Toruń) and by the Sąd Apelacyjny w Gdańsku (Court of Appeal, Gdansk) are flawed on the ground that those courts ought to have brought the matter before the SII in order for it to review that A1 Certificate in collaboration with the competent French institution, instead of ruling on the legislation applicable to TE.

26 In those circumstances, the Sąd Najwyższy (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is the institution of a Member State which has issued an A1 [certificate] and which, of its own motion (without a request from the competent institution of the Member State concerned), intends to cancel/withdraw or invalidate the [certificate issued], obliged to make arrangements with the competent institution of another Member State in accordance with rules analogous to those set out in Articles 6 and 16 of [Regulation No 987/2009]?

(2) Are the arrangements to be made even before the cancellation/withdrawal or invalidation of the [certificate issued], or is the cancellation/withdrawal or invalidation provisional in nature [in accordance with Article 16(2) of Regulation No 987/2009] and will become final in the event that the Member State institution concerned does not raise any objection or present a different view on the matter?’

27 As a preliminary point, it should be noted that Articles 6 and 16 of Regulation No 987/2009, mentioned by the referring court in its questions, which concern the provisional application of legislation and provisional granting of benefits, and the procedure for the application of Article 13 of Regulation No 883/2004, respectively, reproduce, in essence, the provisions of Article 76(6) of that regulation, which lays down the procedure for dialogue and conciliation between the competent institutions of the Member States concerned (‘the dialogue and conciliation procedure’).

28 Moreover, the only provision of EU law which refers to the withdrawal of A1 certificates is Article 5 of Regulation No 987/2009, entitled ‘Legal value of documents and supporting evidence issued in another Member State’.

29 In that regard, it should be borne in mind that the A1 certificate corresponds to a standard form issued, in accordance with Title II of Regulation No 987/2009, by the institution designated by the competent authority of the Member State whose social security legislation is applicable, in order to certify, in accordance with, inter alia, Article 19(2) of that regulation, that workers who are in one of the situations referred to in Title II of Regulation No 883/2004 are subject to the legislation of that Member State (judgment of 2 March 2023, DRV Intertrans and Verbraeken J. en Zonen, C‑410/21 and C‑661/21, EU:C:2023:138, paragraph 42 and the case-law cited).

30 Article 5(1) of Regulation No 987/2009 provides that documents issued by the institution of a Member State and showing the position of a person for the purposes of the application of Regulations No 883/2004 and No 987/2009, and supporting evidence on the basis of which the documents have been issued, are to be accepted by the institutions of the other Member States for as long as they have not been withdrawn or declared to be invalid by the Member State in which they were issued.

31 Article 5(2) and (4) of Regulation No 987/2009 lays down detailed rules for the application of the dialogue and conciliation procedure for the purpose of resolving disputes between the institution of the Member State which receives the documents and evidence referred to in Article 5(1) and the institution that issued those documents. More specifically, Article 5(2) and (3) specifies the steps which those institutions are to follow in the event of doubt as to the validity of those documents and supporting evidence or as to the accuracy of the facts on which the particulars contained therein are based, by requiring the issuing institution to reconsider the grounds for issuing those documents and, if necessary, to withdraw them. Article 5(4) for its part provides that where no agreement is reached between the institutions concerned, the competent authorities may bring the matter before the Administrative Commission, which must endeavour to reconcile the points of view within six months of the date on which the matter was brought before it.

32 Accordingly, it must be held that, by its two questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 5, 6 and 16 of Regulation No 987/2009 must be interpreted as meaning that the institution that issued an A1 certificate which, following a review of its own motion of the evidence on which the issue of that certificate is based, finds that evidence to be incorrect, may withdraw that certificate without first initiating the dialogue and conciliation procedure with the competent institutions of the Member States concerned with a view to determining the national legislation applicable.

33 In the first place, it should be noted that an A1 certificate may be withdrawn by the issuing institution of its own motion, that is to say, without having received a request for review and withdrawal from the competent institution of another Member State.

34 Since Article 5(1) of Regulation No 987/2009 refers to ‘withdrawn’ A1 certificates, without specifying or limiting the circumstances of such a withdrawal, it must be held that that provision covers any situation in which such certificates are withdrawn.

35 Moreover, as is apparent from the Court’s case-law, the binding nature of A1 certificates vis-à-vis the institutions of the Member States other than the issuing Member State is based on the principle of sincere cooperation, laid down in Article 4(3) TEU, which also implies the principle of mutual trust. In accordance with those principles, the issuing institution must carry out a proper assessment of the facts on which the issue of those certificates is based and a diligent examination of the application of its own social security scheme in order to ensure the accuracy of the information contained in those certificates and, therefore, the correct application of Regulation No 883/2004, and the institutions of the other Member States are entitled to expect the issuing institution to fulfil such an obligation (see, to that effect, judgment of 6 February 2018, Altun and Others, C‑359/16, EU:C:2018:63, paragraphs 37, 40 and 42 and the case-law cited).

36 In so far as the manner in which the activities of the worker concerned are carried out is liable to change in relation to the situation taken into account when issuing an A1 certificate and the evidence which served as the basis for initially establishing that situation may subsequently prove to be incorrect, the principles of sincere cooperation and mutual trust imply an obligation on the issuing institution to verify throughout the performance of the activity on which the issue of such a certificate is based the accuracy of the particulars contained therein and to withdraw it if, having regard to the actual situation of the worker concerned, it finds that that certificate does not comply with the provisions of Title II of Regulation No 883/2004.

37 In the second place, while, under Article 5 of Regulation No 987/2009, the decision of the issuing institution to withdraw an A1 certificate – following a request for review and withdrawal made by the competent institution of another Member State – must be adopted within the framework of the dialogue and conciliation procedure between the institutions concerned, in accordance with the conditions for application specified in Article 5(2) to (4) of Regulation No 987/2009, by contrast, that article does not contain any provision relating to the procedural rules with which the issuing institution wishing to withdraw an A1 certificate of its own motion must comply.

38 In particular, Article 5 of Regulation No 987/2009 does not, in such a case, make provision for an obligation on the issuing institution to adopt the withdrawal decision in compliance with that dialogue and conciliation procedure.

39 In the light of the absence of any specific provision for such a procedural obligation where the issuing institution wishes to withdraw an A1 certificate of its own motion, it must be held that the procedure laid down in Article 5(2) to (4) of Regulation No 987/2009 does not constitute for the issuing institution – which has found that the information on which the issue of that certificate is based is incorrect – a mandatory prerequisite for the withdrawal of an A1 certificate of its own motion.

40 Moreover, that interpretation resulting from the wording of Article 5 of Regulation No 987/2009 is consistent in the light of the nature, purpose and conditions for implementing the dialogue and conciliation procedure.

41 As is apparent from Article 76(6) of Regulation No 883/2004, read in the light of Article 72(a) of that regulation, that procedure constitutes a means introduced by the EU legislature in order to resolve disputes between the competent institutions of the Member States concerned regarding, inter alia, the interpretation or application of that regulation.

42 It follows that recourse to the dialogue and conciliation procedure is the result of a difference of views between the competent institutions of two or more Member States, which is borne out by the provisions of Regulation No 987/2009 which provide for the use of such a procedure.

43 Articles 5 and 6 of that regulation provide for the use of that procedure (i) where the institution which receives an A1 certificate calls into question its validity or the accuracy of the facts on which the issue of that certificate is based and, consequently, asks the issuing institution to withdraw it, and (ii) where the institutions or authorities of several Member States have different views as to the determination of the legislation applicable or of the institution which is to provide the benefits concerned, respectively.

44 For their part, Articles 16 and 60 of Regulation No 987/2009, which define the procedures for the application of Articles 13 and 68 of Regulation No 883/2004, provide for the same procedure to be used, in accordance with the conditions for application specified in Article 6 of Regulation No 987/2009, in the event of a difference of views between the institutions concerned regarding the applicable legislation.

45 The withdrawal of an A1 certificate by the issuing institution of its own motion has its origin not in the existence of a dispute between the issuing institution and the institution of another Member State calling into question the accuracy of that certificate, but in the finding by the issuing institution, following the verifications which it is required to carry out in order to fulfil its obligations under the principles of sincere cooperation and mutual trust, as set out in paragraphs 35 and 36 of the present judgment, that the particulars included in that certificate do not correspond to reality.

46 Lastly, the interpretation referred to in paragraph 39 of the present judgment does not jeopardise the rights that the worker concerned by the A1 certificate to which the withdrawal relates derives from Regulation No 883/2004 or the objective pursued by that regulation.

47 First, it should be recalled that, in issuing such a certificate, the competent institution of a Member State merely declares that the worker concerned is subject to the legislation of that Member State (see, by analogy, judgment of 30 March 2000, Banks and Others, C‑178/97, EU:C:2000:169, paragraph 53).

48 Thus, since the A1 certificate is not a measure giving rise to rights but a declaratory act, its withdrawal cannot lead to the loss of such rights.

49 Second, following the withdrawal of the A1 certificate, the legislation applicable to the worker concerned will be determined in accordance with the provisions of Title II of Regulation No 883/2004, relying on, where appropriate, and where Article 6 of Regulation No 987/2009 is applicable, the dialogue and conciliation procedure.

50 In that regard, it must be borne in mind that, according to settled case-law, the provisions of Title II of Regulation No 883/2004 constitute a complete and uniform system of conflict rules which are intended not only to prevent the simultaneous application of a number of national legislative systems and the complication which might ensue, but also to ensure that the persons covered by that regulation are not left without social security cover because there is no legislation which is applicable to them (judgment of 8 May 2019, Inspecteur van de Belastingdienst, C‑631/17, EU:C:2019:381, paragraph 33 and the case-law cited).

51 In that context, it must be borne in mind that Article 6 of Regulation No 987/2009 provides for the provisional application of legislation and the provisional granting of benefits in the event of a difference of views between the institutions of two or more Member States regarding the determination of the legislation applicable or of the institution which is to provide the benefits.

52 Consequently, the application of the system established by Regulation No 883/2004, with a view to determining the legislation applicable, following the withdrawal of an A1 certificate by the issuing institution of its own motion, makes it possible to ensure not only that the protection of the worker concerned is guaranteed at all times, including in the event of a dispute between the institutions concerned as to the legislation applicable, but also that that worker is subject, at all times, even in the event of such a dispute, to a single national legislation.

53 In the third and last place, it should be recalled that, as is apparent from Article 76(4) of Regulation No 883/2004 and recitals 2 and 22 of Regulation No 987/2009, the proper functioning of the system established by Regulation No 883/2004 requires effective and close cooperation both between the competent institutions of the various Member States and between those institutions and persons falling within the scope of that regulation. Such cooperation is necessary for the purposes of determining the rights and obligations of the persons concerned and with a view to enabling them to access their rights as quickly as possible and under optimum conditions.

54 That cooperation requires all those institutions and persons to exchange the data necessary for establishing and determining the rights and obligations of those persons, as is apparent from Articles 2 and 3 of Regulation No 987/2009, which delimit the scope and rules for exchanges between those institutions and between them and the persons concerned, and from Article 20 of that regulation, which sets out the duty of cooperation between the competent institutions of the various Member States.

55 Thus, as the Advocate General observed in point 53 of his Opinion, although the issuing institution wishing to withdraw an A1 certificate of its own motion because of the inaccuracy of the particulars contained therein, does not have to initiate beforehand the dialogue and conciliation procedure with the competent institutions of the Member States concerned, the provisions referred to in paragraphs 53 and 54 of the present judgment, by contrast, require that institution, once that withdrawal has taken place, to inform, as soon as possible, both those institutions and the person concerned of that withdrawal and to communicate to them all the information and data necessary for the purposes of establishing and determining that person’s rights.

56 In the light of all the foregoing considerations, the answer to the questions referred is that Articles 5, 6 and 16 of Regulation No 987/2009 must be interpreted as meaning that the institution that issued an A1 certificate which, following a review of its own motion of the evidence on which the issue of that certificate is based, finds that evidence to be incorrect, may withdraw that certificate without first initiating the dialogue and conciliation procedure with the competent institutions of the Member States concerned with a view to determining the national legislation applicable.

57 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Articles 5, 6 and 16 of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, as amended by Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012

must be interpreted as meaning that the institution that issued an A1 certificate which, following a review of its own motion of the evidence on which the issue of that certificate is based, finds that evidence to be incorrect, may withdraw that certificate without first initiating the dialogue and conciliation procedure laid down in Article 76(6) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, as amended by Regulation No 465/2012, with the competent institutions of the Member States concerned with a view to determining the national legislation applicable.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Zaklad Ubezpieczen Spolecznych Oddzial w Toruniu (Migrant workers - Social security - Judgment) [2023] EUECJ C-422/22 (16 November 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C42222.html Cite as: EU:C:2023:869, ECLI:EU:C:2023:869, [2023] EUECJ C-422/22

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