A1 form or not A1 form for Polish workers sent to the West? 

Case C-879/19, 20 May 2021, Format II  

Author: Prof. Jean-Philippe Lhernould (Université de Poitiers)

Where is insured a Polish national residing in Poland, who works for a company whose registered office is in Poland, under one single fixed-term employment contract for the period from 20 October 2006 to 31 December 2009? During that period, he worked in France from 23 October 2006, in the United Kingdom from 5 November 2007 to 6 January 2008, then again in France from 7 January 2008.

This work pattern, which is far from being unusual, challenges the rules of conflict of law set out in social security coordination regulations. Whereas the Polish employer, for obvious economic reasons (social security contributions are cheaper in Poland than in most Western European countries), would like to subject the employees to its own legislation, the workers’ interest is to be insured in the countries where work was performed.

As in the first Format case (case C-115/11), three rules of conflict of law were in contest. The main contribution of this ruling is the clarification of the conditions under which an employee working in the territory of successive Member States for the same employer and under the same employment contract, may fall within the scope of the rule of conflict applicable to “persons normally employed in the territory of two or more Member States “.  The answer is quite clear: this rule of conflict does not apply “to a person who, under a single employment contract concluded with a single employer providing for the pursuit of professional activity in several Member States, works, for several successive months, solely in the territory of each of those Member States, where the duration of the uninterrupted periods of work completed by that person in each of those Member States exceeds 12 months”.

It is true that, as regards the possible successive periods of work completed in the territory of more than one Member State, the rule of conflict which was under discussion does not establish any temporal limits. However, a too broad interpretation would have the effect of extending the scope of that rule of conflict to situations in which, in reality, the period during which the person concerned performs his employment activity in the territory of a single Member State is so long that that activity should be regarded as the normal working arrangement for the person concerned.

Such a situation does not fall either within the scope of posting since only an undertaking which habitually carries on significant activities in the Member State in which it is established may be allowed the benefit of the advantage afforded by that rule of conflict of law.

The Polish employer will find the answer disappointing. Under the lex laci laboris, French social law and UK law will be applicable for the respective periods of work. The Polish law, which would have been applicable if either the “activity in two or more Member States” or “posting” rules of conflict of law would have been seen as relevant, should be disregarded by the referring court. Therefore, the Polish social security institution rightly refused to issue A1 forms. Incidentally, this case shows that the idea of a “social dumping” system supported by national administration of some countries amounts to an unproven prejudice.

The application of the lex loci laboris makes indeed sense in such a framework, especially since this rule of conflict corresponds to the general principle of social security coordination rules. Other rules of conflict, constituting derogations, must be interpreted strictly. This said, where the duration of the uninterrupted periods of work completed in each of those Member States does not exceed 12 months, the solution may be more favourable to the employer…