1. Taxation, social security and posting in a cross-border context : ‘creating a mindshift’
Frederic De Wispelaere
Pearle
4th Behind the Stage Capacity Building Meeting
Porto, 29 – 30 November 2019

2. Table of contents:
Companies in performing arts and related employment;
Types of intra-EU labour mobility;
Measuring the size of intra-EU posting and persons active in 2 or more Member States
with a focus on performing arts
Administrative procedures: some challenges in the field of finding information and the registration of posted workers;
Upward convergence in the EU: a proactive policy by the EC, today and in the future?

3. Companies in performing arts (NACE R9001), 2018
Source: ORBIS database

4. Cultural employment - Creative, arts and entertainment activities (NACE R90), 2018
Source: Eurostat [cult_emp_n2]

5. Different patterns of labour mobility
Source: De Wispelaere, 2019

6. Composition of intra-EU labour mobility
Type of mobility
Extent
Stock of EU/EFTA movers in the EU/EFTA
19 million
As share of total population in the EU/EFTA
3.6%
Stock of EU/EFTA movers in the EU/EFTA of working age (20-64 years)
14 million
As share of the total working age population in the EU/EFTA
4.5%
Flow of EU/EFTA movers in the EU/EFTA
2.1 million
Cross-border workers in the EU/EFTA
1.9 million
As share of the total employed in the EU/EFTA
0.8%
Postings in the EU/EFTA
1.8 million
Persons who normally worked in two or more Member States
1 million
0.4%
Stock of EU/EFTA movers in the EU/EFTA aged 65 or over
As share of the total population aged 65 or over in the EU/EFTA
1.8%
Trips with overnight stay in another EU/EFTA country
229 million
Source: De Wispelaere and Pacolet, 2018; Tersch et al., 2018; Eurostat.

7. Evolution of the number of PDs A1 issued
Source: De Wispelaere and Pacolet, 2018

8. Posting vs active in 2 or more Member States
Source: De Wispelaere and Pacolet, 2018

9. Number of PDs A1 according to Article 12 BR issued by the sending Member States, 2017
Source: De Wispelaere and Pacolet, 2018

10. Number of PDs A1 according to Article 12 BR received by the host Member States, 2017
Source: De Wispelaere and Pacolet, 2018

11. Number of employees in creative, arts and entertainment activities with a PD A1 issued by Belgium, 2018
3,477 employees with a PD A1 (≠ number of PDs A1 issued to them);
Almost 90% PDs A1 issued according to Art. 12 BR - some 3,000 employees were posted to another Member State;
13% of total number of employees providing creative, arts and entertainment activities in Belgium were posted to another Member State in 2018 <-> EU average posting in total employment: 0.4%;
10% of total number of employees with a PD A1 under Art. 12 BR (posting);
In more than half of the cases posted to France.

12. Number of persons registered in the prior notification tools under “arts, entertainment and recreation”, 2017
Arts, entertainment and recreation
Total
Receiving MS
Numbers
Column %
Share of 'Arts, entertainment and recreation' in total BE BG 25
0.2%
394
6.3% CZ DK
242
1.7%
24,929
1.0% DE EE 1
0.0%
732
0.1% IE EL
143
922
15.5% ES FR
13,143
92.9%
217,885
6.0% HR IT
321
2.3%
19,453 CY 53 LV LT 62
1.6% LU 94
0.7%
25,294
0.4% HU MT NL AT PL PT RO
5,200 SI SK
115
0.8%
16,478 FI SE 60
67,341 UK
14,146
100.0%
378,743
3.7%
Source: De Wispelaere and Pacolet, 2018

13. Intra-EU posting: a confused concept
Source: Jorens and De Wispelaere, 2019
A self-employed person temporarily working in another Member State according to Article 12(2) of the Basic Regulation is posted, but is not covered by the Posting of Workers Directive;
In contrast, workers who pursue an activity in two or more Member States (Article 13 and not 12(1) of the Basic Regulation) may fall under the Posting of Workers Directive;
‘Business trip’: see Practical Guide on Posting.

14. EU legislation related to intra-EU posting: a broad approach
Posting of Workers Directive (Directive 96/71/EC)
(Directive (EU) 2018/957)
Regulations on the coordination of social security systems (Regulation (EC) Nos 883/2004 and 987/2004)
Enforcement Directive
(Directive 2014/67/EU)
Tax law
(183-days rule)
Lex specialis in the road transport?
Directive on transparent and predictable working conditions (Directive (EU) 2019/1152)

15. Access to information: ‘the single official national website’ (Article 5 of the Enforcement Directive)
The ways in which Member States are approaching this task varies greatly;
Good practices are observed in, among others, Austria, Slovenia, Italy and Sweden. However, a number of websites are still not up to scratch;
Several websites only contain part of the information that the posting undertaking actually needs, as no information is available on social security law and tax law, or even on the applicable collective agreements;
Websites do not always refer to the application/declaration process of posted workers in both the Member State of origin (related to the application of the Coordination Regulations) and the host Member State (related to the application of the Posting of Workers Directive and the Enforcement Directive).

16. Registration: request of a Portable Document A1
There is a great variety of practices among Member States with regard to the application procedure for a PD A1;
Sometimes the granting of the PD A1 is organised at local level and in other Member States at central level;
In many Member States, an electronic procedure to apply for a PD A1 is implemented.

17. Registration: prior notification tools
Implemented a declaration tool?
Self-employed covered?
Persons posted from countries outside of the EU-28/EFTA covered?
Type of procedure
Exception certain categories / sectors BE
YES
Electronically BG NO
Post CZ
Mail/post DK
 YES DE EE
Mail IE EL
Mail/post/fax ES FR
YES (recently)  HR IT
YES  CY LV LT LU
Electronic HU MT NL AT PL
Post/ Electronically PT RO
YES (other system) SI SK
Electronically/ mail FI SE UK
Source: De Wispelaere and Pacolet, 2019

18. Upward convergence in the EU
Upward convergence in the EU? Still strong differences in labour costs in “arts, entertainment and recreation”, 2018
Source: Eurostat [lc_lci_lev]

19. Upward convergence in the EU
Upward convergence in the EU? A proactive policy by the EC: the European Pillar of Social Rights
The Pillar is about delivering new and more effective rights for citizens. It builds upon 20 key principles;
Principle 12: “Regardless of the type and duration of their employment relationship, workers, and, under comparable conditions, the self-employed, have the right to adequate social protection.”
Some important initiatives:
New EU rules on transparent and predictable working conditions;
Creation of a European Labour Authority (ELA);
Revision of the Posting of Workers Directive;
Proposal to revise the Coordination Regulations on social security systems;
Council Recommendation of 8 November 2019 on access to social protection for workers and the self-employed;
The Pillar is anchored in the European Semester.

20. Upward convergence in the EU
Upward convergence in the EU? A proactive policy by the EC: what the future holds for posted workers
Equal pay for equal work at the same place Equal contributions for equal work at the same place? Equal social benefits for equal work at the same place?

21. Upward convergence in the EU
Upward convergence in the EU? A proactive policy by the EC: what the future holds for highly mobile artists?
From a legal, administrative and social point of view, some kind of ‘harmonised status’ could be aspired for the group of highly mobile persons;
First step – Impact Assessment for highly mobile professions in which there is little or no competition between Member States in terms of labour costs;
Discussion: is this idea viable or highly unrealistic?

22. References
De Wispelaere, F. and Pacolet, J. (2019), Posting of workers: Collection of data from national declaration tools in 2017, Network Statistics FMSSFE, on behalf of DG EMPL - European Commission.
De Wispelaere, F. and Pacolet, J. (2018), Posting of workers: Report on A1 portable documents issued in 2017, Network Statistics FMSSFE, on behalf of DG EMPL - European Commission.
Fries-Tersch, E., Tugran, T., Rossi, L. and Bradley, H. (2018), 2018 Annual report on intra-EU labour mobility, Network Statistics FMSSFE, European Commission.
Jorens, Y. and De Wispelaere, F. (2019), “Intra-EU posting: looking for solutions: a Herculean or a Sisyphean task?”, BTSZ/RBSS.
De Wispelaere, F. (2019), “60 years of coordination of social security systems: still room for improvement”, BTSZ/RBSS.