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Legislation that applies to workers
1. Where do we pay social security contributions and what social security rules do we fall within?
The guiding principle is that persons to whom the Regulations apply are subject to the legislation of a single Member State only. In the case of employed and self-employed persons the legislation of the Member State where the activity is carried out usually applies. This principle is referred to as lex loci laboris. It means thatyou fall within the social security and health insurance and pay contributions to the system of that Member State, where you work.
According to this rule:
Examples:
A worker having his/her place of residence in Poland, is employed by a IT company in Great Britain. He/she is subject to the legislation of social security in Great Britain, thus where he/she actually works. |
A person who is pursuing his/her activity as a self – employed person (conducts some trainings about EU founds) in Czech Republic, each month he/she pays social security and health contributions to the Czech social security institution, because due to carrying out his activities in Czech Republic he/she is subject to the Czech social security system. |
The principle of the place of pursuing the work is not enough and unreliable in some cases for the purposes of determination of social security legislation. That is why, to avoid situation in which a migrant worker would be insured simultaneously in more than one Member State or a contrario he/she would not be insured in any Member State, the Regulation No 883/2004 provides for some special provisions regarding:
2. Posting of workers
Which social security system is applicable for employees temporarily posted to another Member State?
Sometimes an employer in one Member State (“the posting State”) will want to send an employee to work in another Member State (“the State of employment”). Such employees are known as posted workers. Under Community rules, workers moving within the European Union must be subject to a single social security legislation. Under the Regulations the social security scheme applicable to those who for reasons of work move from one Member State to another is, generally speaking, that established by the legislation of the Member State of new employment. In order to give as much encouragement as possible to the freedom of movement of workers and services, to avoid unnecessary and costly administrative and other complications which would not be in the interests of workers, companies and administrations, the Community provisions in force allow for certain exceptions to the general principle referred to above. The main exception is the requirement to maintain the attachment of a worker to the social security scheme of the Member State in which the undertaking which employs him/her normally operates (the posting State), whenever the worker concerned is sent by that undertaking to another Member State (the State of employment) for a period of time which from the outset is limited (a maximum of 24 months), and provided that certain conditions, discussed below in more detail, continue to apply. These situations – which give exemption from the payment of insurance contributions in the State of employment – better known as posting of workers, are governed by Article 12 of Regulation 883/2004. The rules, which cover both employed people and self-employed people, are described below.
3. How is the posting of workers defined in the specific community legislation?
In line with the above mentioned provisions of the Regulation, a person who works as an employed person in the territory of a Member State on behalf of an employer which normally carries out its activities in that State who is sent by that employer to another Member State to perform work there for that employer continues to be subject to the legislation of the posting State provided that the anticipated duration of that work does not exceed 24 months, and s/he is not sent to replace another posted person. The posting arrangements are intended to facilitate employers (and workers) who have a requirement for people to work on a temporary basis in another country. Accordingly, they may not be used to staff enterprises or contracts on an on-going basis through repeated postings of different workers to the same positions and for the same purposes. Accordingly, in addition to the temporary nature of the posting and the fact that it is not designed to replace another worker, there are several important points to note about this special rule. In the first instance:
Additionally,
Examples: A worker is posted by his/her employer – a constructing company with his registered office in Poland with the purpose of pursuing work abroad within a contract for building a commercial complex in Spain, in the period from 1 January 2011 to 1 September 2012. In the period of carrying out of the activities the employee will be subject to the Polish scheme of social security.
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A worker is posted by his/her Polish employer, a law office, to perform activities in Belgium for the period from 1 November 2010 to 1 December 2013. In this case the employee will be subject to the Belgian social insurance scheme due to the fact that the period of detachment exceeds a period of 24 months.
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4. What criteria do apply to determine if an employer normally carries out its activities in the ‘posting’ state?
The expression “which normally carries out its activities there” means an undertaking which ordinarily carries out substantial activities in the territory of the Member State in which it is established. If the undertaking’s activities are confined to internal management, the undertaking will not be regarded as normally carrying out its activities in that Member State. In determining whether an undertaking carries out substantial activities, account must be taken of all criteria characterising the activities carried out by the undertaking in question. The criteria must be suited to the specific characteristics of each undertaking and the real nature of the activities carried out. The existence of substantial activities in the posting State can be checked via a series of objective factors and the following are of particular importance. It should be noted that this is not an exhaustive list, as the criteria should be adapted to each specific case and take account of the nature of the activities carried out by the undertaking in the State in which it is established. It may also be necessary to take into account other criteria suited to the specific characteristics of the undertaking and the real nature of the activities of the undertaking in the State in which it is established: these criteria are in particular:
Attention! In the case when your employer for the time of pursuing work abroad has granted you a not paid leave you cannot be regarded as a posted employee.
Example: A Polish employer posts his/her employee to pursue work in Germany within the contract for constructing warehouse buildings. For the time of contract between 20 January 2011 and 1 June 2011 the employer grants the employee non paid leave, since the employee for that period signs a contract with German company- general contractor of the whole complex of buildings. Since during not paid leave the direct relationship between the employer of origin is detached, the employee cannot be regarded as a posted employee and he/she will be subject to the German scheme of social insurance while pursuing the work in Germany.
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If your employer after completing the primary period of posting wanted to send you one more time to pursue work abroad, there is certain limitation. After finishing by the employee a period of posting a new request for posting regarding the same employee, the same companies and the same Member State is not allowed before expiry of at least 2 months from the date of completion of the previous posting. Only under particular circumstances the provisions foresee the derogation from that rule.
Example: An employee has completed the contract for constructing the bridge in Romania lasting from 1 January 2010 until 1 October 2010, for which he/she was posted by his/her employer. After returning home he/she is newly posted by the same Polish employer to perform work within a new contract for constructing a highway in Hungary for the period from 15 October 2010 to 1 June 2012. That posting is plausible, without the necessity to maintain 2 months break, because the country of posting changes in that case. |
5. What about workers recruited in one Member State for posting in another?
The rules on posting of workers can include a person who is recruited with a view to be posted to another Member State. However, the Regulations do require that a person being posted to another Member State is attached to the social insurance system of the Member State in which his/her employer is established immediately before the start of his/her employment. A period of at least one month can be considered as meeting this requirement, with shorter periods requiring a case by case evaluation taking account of all the factors involved. Employment with any employer in the posting State meets this requirement. It is not necessary that during this period the person worked for the employer requesting his/her posting. The condition is also fulfilled by students or pensioners or someone who is insured due to residence and attached to the social security scheme of the posting State. All the normal conditions that apply to the posting of workers in general, also apply to such workers. Some examples to clarify what the term attachment to the social security scheme "immediately before" the start of the employment means in particular cases:
a) On 1 June, employer A based in Member State A posts among others workers X, Y and Z to Member State B for a period of ten months to perform work on behalf of employer A.
b) Worker X started his employment with employer A on 1 June. Immediately before the start of his employment he had been living in Member State A being subject to the legislation of Member State A since he attended a course at university.
c) Worker Y started her employment with employer A also on 1 June. She had lived in Member State A immediately before the start of her employment; she was a frontier worker and as such had been subject to the legislation of Member State C.
d) Worker Z who also started his employment with employer A on 1 June had worked in Member State A since 1 May. As a result of this employment he was subject to the legislation of Member State A. However, immediately before 1 May worker Z had been subject to the legislation of Member State B for ten years as a result of an employment relationship.
Solution:One of the requirements for the continued application of the legislation of the posting State is that the social security legislation of the posting State must have applied to the worker immediately before his/her posting. But it is not required that the worker was employed in the posting undertaking immediately before his/her posting. Workers X and Z were subject to the legislation of Member State A immediately before 1 June and hence meet the requirement for the continued application of the legislation of the posting State in this respect. Worker Y, however, was subject to the legislation of Member State C immediately before 1 June. Since she was not subject to the legislation of the posting State immediately before her posting, she will in principle be subject to the legislation of Member State B, in which she actually works.
Example: A Polish employer intends to post his newly hired employee to pursue work in Sweden within a contract for constructing sewage system for the period from 1 October 2010 to 1 September 2011. The employment relationship with the new employee was established on 24 September 2010. Prior to that date the employee in question had not been working anywhere for the previous 3 months and he/she was not registered as un unemployed. Furthermore in that period he/she was not insured due to health care scheme. In that case it is not possible to apply the Polish legislation to the person in question, since the worker was not subject to any sort of insurance in Poland for at least 1 month directly before the commencement of the employment abroad. |
6. What procedures must be followed in the case of posting?
An undertaking which posts a worker to another Member State, or in the case of a self-employed person the person himself/herself, must contact the competent institution (ZUS) in the posting State and wherever possible this should be done in advance of the posting. The competent institution in the posting State shall without delay make information available to the institution in the State of employment on the legislation that is to apply. The competent institution in the posting State must also inform the person concerned, and his/her employer in the case of an employed person, of the conditions under which they may continue to be subject to its legislation and the possibility of checks being made throughout the posting period to ensure these conditions are met. Where an employee or self-employed person is to be posted to another Member State he/she or his/her employer shall be provided with an attestation A1 (formerly E 101 certificate) from the competent institution (ZUS). This attestation certifies that the worker comes within the special rule for posted workers up to a specific date. It should also indicate, where appropriate, under what conditions the worker comes within the special rules for posted workers.
7. What about self-employed people temporarily working in another Member State?
Sometimes a person who is normally self-employed in one Member State (“the posting State”) will want to go to work temporarily in another Member State (“the State of employment”). Like posted employees, it would cause administrative difficulties and confusion if a self-employed person temporarily working in another Member State became subject to the legislation of the State of employment. Also, the self-employed person might lose out on benefit. The Regulations therefore provide a special rule for self-employed persons working temporarily in another Member State which resembles - but is not identical to - the rule for posted employees. This rule provides that a person normally self-employed in the posting Member State who pursues a similar activity in the Member State of employment continues to be subject to the legislation of the posting State provided that the anticipated duration of that work does not exceed 24 months.
8. What criteria apply to determine if a person is normally self-employed in the posting state?
The Regulations provide that a person “who normally pursues an activity as a self - employed person” means a person who habitually carries out substantial activities in the territory of the Member State in which he/she is established. In particular this applies to a person who has pursued his/her self-employed activity for some time before the date when he/she moves to another Member State, and fulfils any necessary requirements for his/her business in the Member State in which he/she is established and continues to maintain there the means to enable him/her to exercise his/her activity on his/her return. When determining whether a person is normally self-employed in the posting Member State it is important to examine the above criteria. Such examination could involve assessing if the person;
The Regulations require that a self-employed person wishing to avail of the posting arrangements “must have already pursued his/her activity for some time” before the date of posting. In this regard a period of two months can be considered as satisfying this requirement, with shorter periods requiring a case by case evaluation.
9. What does ‘similar’ activity mean?
When determining whether a person is going to another Member State to pursue a “similar” activity to that pursued in the posting State, account must be taken of the actual nature of the activity. It does not matter how this type of activity is categorised in the State of employment i.e. whether it is designated as employment or self - employment. In order to determine if the work is “similar”, the work which the person sets out to perform must be determined in advance, before departure from the posting State. The self-employed person should be able to prove this, for example by producing contracts regarding the work. In general, self-employed activity in the same sector would be regarded as pursuing a similar activity. However, it must be recognised that even within sectors, work can be very diverse and it may not always be possible to apply this general rule.
Examples:
a) A is a person who normally works as a self - employed carpenter in State X and moves to State Y where s/he works as a self-employed butcher. S/he would not be regarded as pursuing a “similar activity” as the employment in State Y bears no similarity to his/her work in State X.
B runs a construction company in State X and accepts commissions relating to the installation of piping and wiring systems. B signed a contract in the State Y for the works consisting in installing the wiring system and repairing the foundation.
b) B may take advantage of the provisions of Article 12(2) because he is intending to move to the State Y to take up a similar activity, that is, an activity within the same sector (construction).
c) C pursues activities as a self-employed person in the State X which consists in providing transport services. C temporarily moves to the State Y to perform a contract installing the wiring system and repairing the foundation. Due to the fact that the activity performed in the State Y differs from the activity pursued in the State X (different sectors: X – transport, Y – construction), C cannot take advantage of the provisions of Article 12(2) of the basic Regulation.
d) D is a self-employed solicitor specialising in criminal law in State X. He secures an assignment in State Y advising a large undertaking on corporate governance. While the area he is working in is different, nevertheless, he is still active in the legal area and so can avail himself of the posting provisions.
A self- employed person who fulfills conditions for temporarily transferring his/her activity in another Member State should request ZUS (KRUS – in case of persons covered by social security system for farmers) for PDA1 certificate (in the transitional period interchangeably with E101). A1 certificate provides evidence that social security contributions should still be paid in the country of origin. PD A1 and E101 forms and requests for their emission are available on the page: www.e-inspektorat.zus.pl and www.krus.gov.pl/ue(in case of persons covered by the social security system for farmers).
10. Which social security system is applicable to persons normally working in two or more Member States?
The rules for persons normally working in two or more Member States are similar in nature to those contained in Article 14 of Regulation 1408/71 but are captured in one central provision. The revised rules remove the special provisions of Regulation 1408/71 relating to persons working in the international rail, road and inland waterway sector, as well as the special rules for civil servants. They also introduce the concept of a 'substantial part of the activity’ to establish which Member State a person has the closest link with in terms of social security coverage. These rules apply to a large number of workers, including self-employed persons, international truck drivers, train drivers, international couriers, IT experts, consultants and other professionals who work in two or more Member States.
Article 14(5) of Regulation 987/2009 provides that a person who ‘normally pursues an activity as an employed person in two or more Member States’ is a person who simultaneously or in alternation exercises one or more separate activities in two or more Member States for the same undertaking or employer or for various undertakings or employers.
With the entry into force of Regulation 465/2012, the condition of pursuing a 'substantial part of the activity' applies as a first step in all situations where a person is working in two or more Member States. There is one exception, which follows from the practical application of the rules. If the place of residence of a person working for one or more employer(s) or undertaking(s) and the registered office or place of business of that person's employer(s) or undertaking(s) is (are) situated in one and the same Member State, then the legislation of the resident Member State will always be applicable. In this case, it is not necessary to determine whether or not a substantial part of the activity is performed in the Member State of residence.
A ‘substantial part of the activity’ pursued in a Member Statemeans that a quantitatively substantial part of all the activities of the worker is pursued there, without this necessarily being the major part of those activities. For the purposes of determining whether a substantial part of the activity of an employed person is pursued in a Member State, the following indicative criteria shall be taken into consideration:
If in the context of carrying out an overall assessment it emerges that at least 25% of the person’s working time is carried out in the Member State of residence and/or at least 25% of the person’s remuneration is earned in the Member State of residence this shall be an indicator that a substantial part of all the activities of the worker is pursued in that Member State. While it is obligatory to take account of working time and/or remuneration, this is not an exhaustive list and other criteria may also be taken into account. It is for the designated institutions to take into account all relevant criteria and to undertake an overall assessment of the person's situation before deciding on the applicable legislation.
In cases when an employee does not pursue a substantial part of his/her activity in the Member State of his/her residence, then he/she should fall within a social security system according to the following rules:
To avoid possible manipulation of the rules governing the applicable legislation, marginal activities shall not be taken into account for the determination of the applicable legislation on the basis of Article 13 of Regulation 883/2004. Marginal activities are activities that are permanent but insignificant in terms of time and economic return. It is suggested that, as an indicator, activities accounting for less than 5% of the worker's regular working time and/or less than 5% of his/her overall remuneration should be regarded as marginal activities. Also the nature of the activities, such as activities that are of a supporting nature, that lack independence, that are performed from home or in the service of the main activity, can be an indicator that they concern marginal activities. A person who pursues "activities of a marginal extent" in one Member State and also works in another Member State, cannot be regarded as normally pursuing an activity in two or more Member States and is therefore not covered by Article 13 of Regulation 883/2004. In this situation, the person is treated, for the purpose of determining the applicable legislation, as having an activity in one Member State only.
11.What happens when you normally pursue an activity as a self – employed person in different Member States?
A person who normally pursues an activity as a self – employed in two or more Member States shall refer to a person who simultaneously or in alternation pursues one or more separate self – employed activities, irrespective of the nature of those activities, in two or more Member states.
Whether you pursue a self – employed activity in the territory of two or more Member States, you are subject to the legislation of the Member State of your residence, on condition that you pursue there a substantial part of you activity.
For the purposes of the fact whether the substantial part of activity is pursued in the Member State of residence, ZUS takes into account:
Taking the above mentioned criteria in consideration is obligatory, although the present list is not exhaustive and other criteria can be also taken into account. When from overall assessment emerges that the share of the above mentioned criteria in the Member State of residence amounts below 25% it should be deemed that the substantial part of activity of a certain person is not pursued in that Member State.
When you do not live in the Member State in which you pursue the substantial part of activity – you are subject to the legislation of the Member State within the territory of which the centre of interests of your activities is located.
The centre of interest of activity is determined on the basis of all the aspects of your self – employed activity, and in particular on the basis of:
12. What happens when you normally pursue a self – employed activity and you are employed in two or more Member States?
A person who simultaneously pursue a self – employed activity and is employed in two or more Member States, is subject to the social security legislation in the Member State of employment. For the purpose of determination of applicable legislation the marginal activity will not be taken into account.
13. Which legislation is applicable to seafarers?
According to the general rule – a seafarer employed or self – employed who normally pursues his/her activities on board a vessel at sea flying the flag of a Member State shall be deemed to be subject of the legislation of that Member State. However, a person employed on board a vessel flying the flag of a Member State and remunerated for such activity by an undertaking or a person whose registered office or place of business is in another Member State shall be subject to the legislation of the latter Member State if he resides in that State. The undertaking or person paying the remuneration shall be considered as the employer for the purposes of the said legislation.
14. How to determine the applicable legislation for members of flight and cabin crew after 28 June 2012?
Regulation 465/201232, which applies as of 28 June 2012, refers to “home base” as the only decisive criterion for determining the social security legislation applicable to flight and cabin crew members. By introducing the concept of "home base", the legislator created in Article 11(5) of Regulation 883/2004 a legal fiction with the purpose of simplifying the determination of applicable legislation for flying personnel. The applicable legislation is directly connected to the "home base" as this is the location where the person is physically located and with which s/he has a close connection in terms of her or his employment. All new contracts with flight and cabin crew members concluded after 28 June 2012 should therefore be assessed on the basis of the new Article 11(5). In accordance with Article 19(1) of Regulation 987/2009, the applicable legislation shall be determined and the Portable document A1 issued by the Member State where the "home base" is located, if the person concerned has only one stable home base. Flight and cabin crew members who were engaged before 28 June 2012 are not affected by the new rules if their situation remains unchanged and they do not ask to be subject to the new rule.
15. How does the procedure of determination of the applicable legislation for the persons normally pursuing work in two or more Member States look like?
A person who pursues activities in two or more Member States shall inform the institution designated by the competent authority of the Member State of residence thereof. The designated institution of the place of residence shall without delay determine the legislation applicable to the person concerned. That initial determination shall be provisional. The institution shall inform the designated institutions of each Member State in which an activity is pursued of its provisional determination. The provisional determination of the applicable legislation, shall become definitive within two months of the institutions designated by the competent authorities of the Member States concerned being informed of it. The competent institution of the Member State whose legislation is determined to be applicable either provisionally or definitively shall without delay inform the person concerned. It can do it through correspondence addressed to that person or by issuing the PDA1.
16.What legislation do contract staff of the European Communities falls within?
Contract staff of the European Communities may opt to be subject to the legislation of the Member State in which they are employed, to the legislation of the Member State to which they were last subject or to the legislation of the Member State whose nationals they are, in respect of provisions other than those relating to family allowances, provided under the scheme applicable to such staff. This right of option, which may be exercised once only, shall take effect from the date of entry into employment.
17. Are there any special arrangements in place where the legislation applicable has already been decided under Regulation 1408/71, or under Regulation 883/2004 before 28 June 2012?
Articles 87(8) and 87a of Regulation 883/2004 provide that if, as a result of the introduction of the new Regulation, a person would be subject to the legislation of a Member State other than the one already determined in accordance with Regulation 1408/71 or in accordance with Regulation 883/2004 as it applied before 28 June 2012, then the previous decision will continue to apply provided the relevant situation remains unchanged. The first requirement for applying Articles 87 (8) and 87a is that, as a result of Regulation 883/2004 or Regulation 465/2012 coming into force, a person would be subject to the legislation of a Member State other than that already determined in accordance with Title II of Regulation 1408/7157 or in accordance with Title II of Regulation 883/2004 before 28 June 2012.
As already indicated, a person whose applicable legislation was determined in accordance with Regulation 1408/71, or in accordance with Regulation 883/2004 before 28 June 2012, can request to be made subject to the legislation which is applicable under the amended wording of Regulation 883/2004. Concerning the transition between Regulations 1408/71 and 883/2004, if the person made their request by the 31st July 2010 then the change in applicable legislation should take effect from the 1st May 2010, i.e. the date from which the new Regulations became applicable. Where a request was received after the 31st July 2010, i.e. later than three months after the new Regulations became applicable, any decision made takes effect from the 1st day of the month following that in which the application was made. Concerning the transition between Regulation 883/2004 and amending Regulation 465/2012, requests submitted by 29 September 2012 shall be deemed to take effect on 28 June 2012. Requests submitted after 29 September 2012 shall take effect on the first day of the month following that of their submission.
We encourage also to consult the Practical Guide on the applicable legislation in the European Union (EU), the European Economy Area (EEA) and in Switzerland and to get acquainted with the materials on being subject to social insurance which are available on pages: www.zus.pland www.krus.gov.pl/ue.