Uncertainty around the validity of E101 forms and the associated guarantee of social security to expats, has been clarified in a recent ECJ ruling that confirms their binding nature on host member states. Our legal experts explain further.

In 2005, the National Office for Social Security (RSZ/ONSS) received 86,601 certificates of secondment, an increase of almost 30,000 compared with 2004. Clearly, interest in expatriate secondment is on the increase.

But questions have been raised about the validity of the E101 form in the past few years with regards to social security systems on one hand and national courts on the other.

In a ruling issued on 30 March 2000, the European Court of Justice (ECJ) decided that the social security system in a host member state is bound by the E101 form issued by the competent authorities of another member state.

It based its ruling on the fact the E101 form creates the assumption that the person concerned is legally registered in the system of the member state in which the form was issued.

On 26 January 2006, the ECJ clarified matters with regard to the authority of the national judicial authorities concerning the E101 secondment form.

At the end of 2004, the Brussels Labour Court of Appeals was confronted with the question as to whether courts are also bound by the E101 form.

Even though the Belgian Supreme Court had already confirmed lower courts are bound by the E101 form, the Labour Court of Appeals posed a preliminary question to the ECJ.

The ECJ then ruled that as long as the E101 certificate is not withdrawn or declared invalid by the authorities of the issuing member state, it is binding on both the social security system and the judicial authorities of the member state in which the employees has been seconded.

Consequently, the judicial authority in a member state receiving these employees is not authorised to investigate the validity of the E101 certificate in regards the facts upon which the certificate was issued.

In the event that the foreign institution which issued the certificate will not withdraw it, an appeal to the Administrative Commission[1] is the only alternative.

If the Administrative Commission does not succeed in reconciling the two sides, the host member state can initiate a non-fulfilment procedure at the ECJ.

[1] The Administrative Commission on social security for immigrant workers attached to the Commission of the European Communities is an organisation composed of a government representative from each member state. Its job is to handle all issues of an administrative or interpretative nature and to promote co-operation between the member states in the area of social security.

7 July 2006

Lawyers Kris Termonia and Matthias Lommers work for law firm Laga (www.laga.com) and are contactable by phone: 32 2 800 7000.

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Subject: Expat news