Amid confusion among employers and employees alike about whether an A1 certificate of coverage is needed for business travel between EU or EEA member states and Switzerland, the German Ministry of Employment and Social Affairs has recently issued ministerial guidance on its interpretation of the relevant EU law (Regulation (EC) 883/2004 and Regulation (EC) 987/2009). The ministerial guidance concerns short-term business trips of up to one week and business trips organised on short notice.
European Law: No legal duty to carry an A1 certificate
In its guidance, the Ministry states that, in its view, ‘on the basis of European law, there is no legal duty to carry an A1 certificate of coverage’.
Nevertheless, it also states that, generally, for a business trip between EU or EEA member states and Switzerland, an A1 certificate needs to be applied for prior to a business trip despite the fact that the A1 certificate can be granted after the trip. However, in the case of business trips that are not conducted on a regular basis and organised on short notice or short-term business trips of up to one week, ‘it can be practicable to abstain from applying for an A1 certificate’ according to the Ministry’s guidance.
This guidance is based on the Ministry’s understanding of European law concerning the A1 certificate: It interprets European law to mean that:
‘an A1 certificate is not absolutely necessary in every case of a short-term activity or an activity organised on short notice in a different country since the member states have discretion in this matter.’
Member states’ discretion: carrying an A1 certificate may be mandatory under national law
According to the Ministry, member states can exercise their discretion with regarding the A1 certificate requirement through national law. Some member states (currently France and, in principle, also Austria) have made it mandatory to apply for an A1 certificate prior to commencing activity in this member state. Where there is a duty to apply for an A1 certificate prior to the business trip under the national law of the host state, the Ministry does not recommend abstaining from applying for it prior to the business trip.
Regardless of whether there is a duty to apply for an A1 certificate prior to the business trip, providing a retrospective A1 certificate is mandatory when explicitly requested by the authorities from the business traveller or their employer.
Interpretation of member states’ discretion from EU law
The Ministry interprets member states’ discretion with regards to whether or not business travellers must carry an A1 certificates from EU law based on the wording in Article 15 of Regulation (EC) No. 987/2009, which states employers or self-employed business travellers must inform the competent authorities of the member state in which they regularly work ‘wherever possible in advance’.
The discretion, according to the Ministry, arises specifically from the formulation ‘wherever possible’. This formulation is mirrored in the Administrative Commission’s Practical Guide (no. 11, p. 14).
The Ministry also refers to European Court of Justice case law which confirms that, while it is better to obtain the A1 certificate prior to starting the business trip, it can also be obtained retrospectively during or after the business trip (Banks and Others C-178/97, paragraphs 49 to 57; C-527/16, Alpenrind, paragraphs 70-72).
An obligation to carry an A1 certificate under EU law would, in the Ministry’s view, potentially even violate the free movement of services and labour.
Business trips to Germany: no legal duty to carry an A1 certificate under German national law
The Ministry advises that for business trips from other EU or EEA member states or Switzerland to Germany, there is no duty to carry an A1 certificate under German national law. The customs authorities are, however, authorised to obtain information on social security status and check proof of social security coverage (sec. 3, paragraph 1 SchwarzArbG).
Right to an A1 certificate and advantages of carrying an A1 certificate
Whether or not there is a legal duty under national law to obtain an A1 certificate prior to business travel, the right to apply for an A1 certificate for business travel remains unaffected. Carrying an A1 certificate even if there is no duty to do so under national law may avoid any potential problems arising for business travellers. The Ministry gives the example that, in the event of a work accident in certain countries (particularly in Italy and Switzerland), a special benefit in kind within the framework of statutory accident insurance can only be obtained if an A1 certificate is provided in addition to the European Health Insurance Card,.
Legal recourse under EU law
Where member states take rigorous measures against business travellers who do not carry an A1 certificate or proof of application or against their employers, such as not letting them enter company premises, immediate collection of social security contributions or imposition of fines, legal recourse under EU law may be available, according to the Ministry, if national discretion is exceeded in breach of the principle of free movement of services.
Caution: ministerial guidance is not binding for other EU or EEA member states and Switzerland
While the German ministerial guidance provides a helpful interpretation of EU law and persuasive arguments against a duty to carry an A1 certificate under EU law, it is important for business travellers and employers to remember that this guidance is not binding for other EU or EEA member states and Switzerland. This means that other states may well interpret EU law to mean that carrying an A1 certificate is mandatory. Therefore, even if the national law of the state to which the business traveller is travelling does not require business travellers to carry an A1 certificate and does not impose fines for not carrying an A1 certificate, there is nevertheless a risk:
In order to avoid any potential problems, obtaining an A1 certificate prior to business travel is therefore still recommended. If employers are considering not obtaining A1 certificate, it is highly recommended they check national regulations and practices of the host state prior to the business travel in order to conduct a risk assessment.