Belgian Executives Lose Appeal in Social-Security Snafu

(CN) – Europe’s highest court dealt a blow Tuesday to Belgian executives whose company brought in Bulgarian construction workers with fraudulent paperwork.

The underlying case arose from an investigation of the contractor Absa by Belgium’s social-security authorities.

At every Absa job site going back to 2008, nearly all of the work had been subcontracted to Bulgarian undertakings that posted workers to Belgium.

Absa did not declare the workers to Belgium’s social-security authority because all of the workers had certificates issued by the relevant authorities in Bulgaria, which confirmed their registration with the Bulgarian social-security system.

After finding that the Bulgarian undertakings did not carry out any significant activity in Bulgaria, however, Belgian authorities brought charges against several senior managers at Absa.

Over two years ago in Antwerp, a Court of Appeal convicted the defendants of three charges: allowing work to be carried out by foreign nationals who were not permitted or authorized to stay in Belgium for more than three months or to settle there without a work permit; failing, when those workers commenced employment, to make the declaration required by law to the institution responsible for collecting social-security contributions; and failing to register those workers with the National Social Security Office in Belgium.

The Absa managers appealed, but such proceedings were stayed in Belgium so that the European Court of Justice could clarify their responsibilities when it came to the fraudulently obtained certificates.

“When an institution of a member state to which workers have been posted makes an application to the institution that issued E 101 certificates for the review and withdrawal of those certificates in the light of evidence, collected in the course of a judicial investigation, that supports the conclusion that those certificates were fraudulently obtained or relied on, and the issuing institution fails to take that evidence into consideration for the purpose of reviewing the grounds for the issue of those certificates, a national court may, in the context of proceedings brought against persons suspected of having used posted workers ostensibly covered by such certificates, disregard those certificates if, on the basis of that evidence and with due regard to the safeguards inherent in the right to a fair trial which must be granted to those persons, it finds the existence of such fraud,” the ruling out of Luxembourg states.

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