Regularity of contributions for the posted employee holding the A1 certificate

The territorially competent Court, by judgment No. 106/2019 published on 3 February 2020, stated that the existence of A1 certificates creates a presumption of regularity of contributions of the posted worker.

The facts

An Airline company whose registered office is outside Italy brought an action before the Italian National Social Security Institute (‘INPS’), as it received a single inspection report contesting the non-payment of social security contributions in Italy for 31 employees.

In particular, the INPS, recalling the principle of the lex loci laboris for which workers employed in the territory of a Member State must be subject to the legislation of that State, objected that:

• the Airline has its base of operations at the site of an Airport located in Italy;
• the workers posted to that airport reside and have always resided permanently in Italy;
• the employment contracts for posted personnel indicated the Italian premises of the Airport as well as the working hours of the said personnel. According to the INPS, in this context, the issuing of the A1 forms by the Authority of the Country in which the airline is based is irrelevant.

The decision of the Court

The judge hearing the case upheld the Airline’s appeal, following the European case law produced by the same company, according to which: the existence of A1 certificates creates a presumption of regularity of contributions of the posted worker.

The Judge, in arguing their decision, proceeded to say that the INPS has no jurisdiction to rule on the whether or not the A1 certificates are valid.

According to the Judge, on the basis of European law, the only instrument recognised to the social security institution is the dialogue and conciliation procedure, according to which the aforementioned should have previously contacted the Authority of the foreign country to put it in a position to assess how correct the A1 forms issued were.

In the event of failure to reach agreement, the INPS should have referred the matter to the European Administrative Commission, which, in spite of the forms, has nevertheless charged the contribution omitted in Italy.

In view of the above, the Judge of first instance declared the claim brought by INPS unfounded, by offsetting the costs of the proceedings.