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Work Contracts

A 1 (E 101) certificate is presumed to be valid unless fraud indicators are observed.

For as long as an A 1 certificate is not withdrawn or declared invalid, the Spanish labour inspector must take account of the fact that the employee is already subject to the social security legislation of the Member State in which the undertaking employing him is established, and that the Spanish Authorities cannot therefore subject the worker in question to its own social security system 

Therefore, the Spanish labour authorities are entitled to scrutinise the validity of an A 1 certificate as regards the certification of the matters on the basis of which such a certificate was issued.

If the Spanish Authorities find concrete evidence that suggests that those certificate was obtained fraudulently, it is the duty of the institution of the European Country from which  the workers were posted, by virtue of the principle of sincere cooperation, to review, in the light of that evidence, the grounds for the issue of those certificate and, where appropriate, to withdraw it.

As a result, it is incumbent on the competent institution of the Member State which issued the A1 certificate to reconsider the grounds for its issue. 

In the event that the institutions concerned do not reach an agreement on, in particular, the question how the particular facts of a specific case are to be assessed, it is open to them to refer the matter to the Administrative Commission referred to in Article 80 of Regulation No 1408/71.

In those circumstances, a Spanish court may disregard the E 101 certificates and must determine whether the persons suspected of having used posted workers ostensibly covered by certificates obtained fraudulently may be held liable under the Spanish law.

Subcontracting work force in Spain                          

The Spanish legal system only allows decentralizing measures and considers subcontracting to be legal if the necessary requirements are met.

These requirements aim to ensure employees’ rights, because the Spanish law considers that subcontracting could lead to a violation of workers’ rights. That’s why the Spanish regulation establishes guarantees and precautions concerning salary matters, Social Security, health and safety of the employees affected by the subcontracting agreement and determined by the Courts on a case-by-case basis.

From an employment law perspective, subcontracting of activities is regulated in article 42 of the Spanish Workers Statute (in Spanish, “contratas y subcontratas”).

Subcontracting “main activity

Art. 42 Spanish Workers Statute

- Salary liability

- Social Security liability

- Liability labor risks

- Tax liability

- Reporting obligations

Subcontracting “not main activity

Fragmented legislation

- No salary liability (except construction)

- Social Security liability

- No liability labor risks

- No tax liability

- Reporting obligations