Carrying out a contract abroad requires proper planning of resources, deadlines, terms of cooperation and public law obligations relating to cross-border employment. When posting workers or organising work across several countries, it is crucial to determine which social security system a person is subject to. This determination should be confirmed by an A1 certificate.
Below, we explain whether working abroad without an A1 certificate is permissible, when the absence of an A1 certificate may result in consequences for the employer, the importance of correctly classifying the type of work, and how to prepare the company for an inspection in the host country.
What is an A1 certificate and why is it important when working abroad?
The A1 certificate confirms which social security legislation applies to a person in accordance with the rules of Title II of Regulation 883/2004. As a general rule, a person is subject to the legislation of only one Member State, with exceptions including, for example, posting and work in two or more countries.
An A1 certificate is of a certifying nature and is binding on other Member States until it is withdrawn or declared invalid.
Working abroad without an A1 certificate – when there is a risk
It is legally possible to start cross-border work before obtaining an A1 certificate, as the A1 certificate does not establish social security coverage but merely confirms it. However, the absence of an A1 certificate deprives the employer of official proof of the applicable legislation for the purposes of inspections in the host country.
In the event of a disagreement between institutions regarding the applicable legislation, Regulation 987/2009 requires the application of provisional affiliation and coordination mechanisms. Pending a decision, the host country’s authority may collect its own contributions and impose administrative sanctions in accordance with local law.
The absence of an A1 certificate increases the likelihood that the employee will be subject to the legislation of the host country and that contribution arrears will accrue until the competent legislation is determined through inter-institutional cooperation.
Posting or working in several countries – why an A1 qualification matters
Correct classification of the job is essential for determining whether an employee can remain in the Polish social security system.
The first scenario involves the posting of an employee to another Member State. This applies to situations where an employee employed by an employer normally carrying out business in Poland is temporarily sent to work abroad. The duration of such a posting should not exceed 24 months, and the employee may not be sent to replace another posted worker.
The second model involves working in two or more Member States. It covers situations where an employee regularly performs duties in different countries, for example according to a regular schedule or due to the permanent nature of the employer’s business. In this model, factors such as the employee’s place of residence, the employer’s registered office, working hours and the remuneration attributable to each country are analysed.
Where work is carried out in two or more countries, the competent institution is determined by the legislation of the country in which the worker resides. This is initially determined on a provisional basis. If none of the institutions concerned raises any objections within two months, the determination becomes final. This is why it is so important to correctly distinguish between a posting and regular work in several countries.
In the context of transport, specific obligations relating to drivers, notifications and documentation concerning posting are also important. We discuss these in more detail in the article: https://bktkancelaria.pl/delegowanie-kierowcow-do-niemiec/.
When an A1 certificate may be challenged or revoked
The institutions of other Member States are bound by the document until it is withdrawn or declared invalid. If the institution of the host country has doubts as to the validity of the A1 form, it may ask the institution that issued the document for clarification and a review of the grounds for its issue.
The judgment of the Court of Justice of the European Union of 16 November 2023 in Case C-422/22 is of significant importance. The Court stated that the institution which issued the A1 form may revoke the document ex officio if it finds that the information on which its issue was based is incorrect. In such a case, it is not required to first conduct a dialogue and conciliation procedure with the institution of the host country.
The consequences for the employer of not having an A1 certificate
Failure to provide an A1 certificate may lead the authorities in the host country to assume that the employee is subject to local social security legislation. In such a situation, the employer may be required to settle contributions in the country where the work is performed, which may also include arrears, interest and administrative penalties.
The situation becomes more complicated when a dispute arises between institutions regarding which legislation applies. Until the dispute is resolved, the employer may face social security contribution claims from more than one country.
The possibility of revoking an A1 certificate is also of significant importance. If the document was issued on the basis of false information, the issuing authority may revoke it, with effect retroactive to earlier periods. Once the A1 certificate has been withdrawn, the applicable legislation must be re-determined.
In the case of the posting of third-country nationals, it is necessary to verify the requirements relating to the legalisation of residence and work in the host country, including the issues discussed in the article: Will the CJEU challenge the Vander Elst visa procedure?.
How to minimise the risk of not having an A1 certificate before an employee leaves
Before an employee leaves, the relevant legal framework for working abroad must be established. Firstly, it is necessary to assess whether the situation in question constitutes a posting or work carried out in two or more countries. Only after such an analysis can the correct A1 application be prepared and the documents confirming the chosen working arrangement be gathered.
The employer should also be prepared to demonstrate that it normally carries out business activities in the sending country. Of particular importance here are organisational infrastructure, staff, a portfolio of domestic clients and actual economic activity.
When working in several countries, it is particularly important to keep records of working hours and pay, broken down by country.
The information provided in the A1 application should be consistent with HR, payroll, contractual and operational records. Following the CJEU judgment in Case C-422/22, the accuracy of the information provided to the issuing authority has become particularly important.
Employers should also be prepared for any disputes that may arise between the institutions of Member States. In such a situation, it is important to compile a comprehensive body of evidence and to designate the persons responsible for liaising with the institutions and exchanging information.
Summary – working abroad without an A1 certificate and the risks for the employer
Working abroad without an A1 certificate is not automatically ruled out, as the certificate serves to confirm the applicable legislation. From the employer’s perspective, however, the absence of the document significantly increases the risk of the employee being assigned to the host country’s system, of additional contributions being levied, and of a dispute arising between the institutions.
Following the judgment in Case C-422/22, the importance of data accuracy and the correct classification of the work model has increased, as the institution may revoke an A1 certificate ex officio in the event of inaccurate data, and once revoked, the applicable legislation must be re-determined.
BKT Law Firm assists businesses in assessing the risks associated with the A1 certificate, the posting of workers, working across multiple countries, and the employment of foreign nationals.
If your company is carrying out contracts abroad or plans to send employees to another EU country, please do get in touch. We will analyse the employment model, review the documentation and suggest solutions to minimise social security, administrative and contractual risks.
