Determining the applicable national social security scheme An overview of the main rules in Regulations n° 883/2004 & 987/2009, …but also in Regulations n° 1408/71 & 574/72

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 2 Co-ordination of social security schemes “Determination of the legislation applicable” Is one of the basic principles of coordination Provides an answer to: 1. «Where do I have to pay contributions?» 2. «According to which scheme will I get social security benefits?»

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 3 Determining the applicable scheme Overarching principle Unicity of legislation avoids both positive and negative conflicts of law Strong & exclusive effects

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 4 

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw /71 883/2004

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 6 Today’s EU social security provisions  Regulation n° 1408/71 & its Implementing Regulation n° 574/72  European Economical Area (EEA)  Agreements with Switzerland (2002)  Regulation n° 859/2003: extension to third country nationals (2003):  In an intra-EU cross-border situation  Legally resident in the territory of an EU Member State  [Not accepted by Denmark]

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 7 A reform Edinburgh Council 1992: necessity of a general review Incorporating the ECJ caselaw New forms of mobility & of social security benefits Extensions of the scope Commission's proposal for a new regulation in 1998 Goal: to simplify and modernize the concepts, rules and procedures of Regulation 1408/71 as to achieve the free movement of persons

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 8 A reform Regulation (EC) n° 883/2004 of the European Parliament and the Council of 29 April 2004 on the coordinition of social security systems (adapted by Regulation 988/2009) 1 May 2010: entry into force of the Regulation n° 883/2004 and its Implementing Regulation n° 987/2009

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 9 Regulation n° 1408/71 → 883/2004 Out with the old, but…  … a transitional period of 10 years for the Chapter on applicable legislation in case of an unchanged prior existing situation  … no extension to third-country nationals yet  … not applicable to Switzerland yet  … not applicable to Iceland, Norway and Liechtenstein yet SIMPLIFICATION, ANYONE?

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 10 Special rules * State of habitual residence * State where the employer is situated Activities in the territory of several States (employee / self-employed) Special rules State of work (Lex loci laboris) Exception: Posting Activities in the territory of one State (employee / self-employed) Determining the applicable scheme

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 11 “Lex loci laboris”

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 12 Changing place of work

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 13 Coverage in the State where activities are carried out for a short period of time = ADMINISTRATIVE COMPLICATIONS Changing place of work

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 14 Posting A definition An employee / self-employed person is sent abroad by his employer / goes abroad to perform a well-defined task for a limited time  whilst remaining under the authority of his employer  whilst continuing to maintain, in the State of origin, the necessary means to carry on the self-employed activity so as to be in a position to pursue it on his return.

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 15 Consequences 1. The employee / self-employed person continue to be covered by their habitual social security scheme (the sending State) 2. The employer / self-employed person are exempted from the payment of social security contributions in the receiving State Posting

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 16 Posting The Regulations Art. 14, §1 & 14a, §1 & 14b, §1 Reg. 1408/71  Employees  Self-employed persons  Seamen Art. 12, §1 Reg. 883/2004  Employees & self- employed persons (  seamen)

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 17 Decision n°148  Pre-numbered E101's Decision n°181  Substantive conditions Posting guide  Substantive conditions Recommendation n°16  Posting via art. 17 Decision A2  Substantive conditions Posting guide  Substantive conditions Posting Substantive conditions – interpretations & guidelines CASSTM

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 18 Posting Substantive conditions Social security coverage prior to the posting  How long? CASSTM Decision A2  Employees 1 month – Self-employed workers: 2 months The employer must  “Habitually” carry on “significant activities” in the sending State Caselaw ECJ - Fitzwilliam & Plum Old Posting guide: 25% turnover – 4 months of activities └► in Regulation 987/2009 art. 14 §2 with a series of criteria (i.e. not purely management activities)

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 19 Posting Reg. 1408/71  Expected maximum duration: 12 months 12 months – extension if validated by other member state (E102) Reg. 883/2004  Expected maximum duration: 24 months

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 20 Posting Reg. 574/72 Reg. 987/2009 (IR 883/2004)  For self-employed persons: Similar activity ( → actual nature of the activity: art. 14, §4) Art. 14, §3: pursuit of activities before posting + keeping fulfilled the necessary requirements

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 21 Formalities in case of posting Reg. 574/72 Form E101 Form E102 Model CASSTM Reg. 987/2009 Portable Document A1 Model CASSTM E101A1

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 22 Special rules 1408/71 Civil servants Continue to be insured in the State in whose Administration they are employed Staff members of diplomatic missions Principle: the State of work, but possibility to opt for the scheme of the sending State (when being a national of that Member State) Auxiliary staff of the EU Choice: the State of work, the State they were last subject to, or the State of their nationality → Contract staff → 883/2004

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 23 Simultaneous activities "normally employed in the territory of two or more Member States"

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 24 Simultaneous activities Special rules * State of habitual residence * State where the employer is situated Activities in the territory of several States (employee / self-employed) Special rules State of work (Lex loci laboris) Exception: Posting Activities in the territory of one State (employee / self-employed)

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 25 Working in the State of residence? Not working in the State of residence? BUT: if ≠ employers established in ≠ States Simultaneous activities Employee

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 26 Simultaneous activities Employee Reg. 1408/71 State of residence  if a part of the activities are pursued there └► If not: Employer State  If ≠ employers established in ≠ Member States Reg. 883/2004 State of residence  if a substantial part of the activities are pursued there └► If not: Employer State  If ≠ employers established in ≠ Member States

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 27 Activities pursued in the State of residence ? No activities in the State of residence? Simultaneous activities Self-employed

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 28 Simultaneous activities Self-employed Reg. 1408/71 State of residence  if a part of the activities are pursued there └► If not: State of the main activities Reg. 883/2004 State of residence  if a substantial part of the activities are pursued there └► If not: State of the centre of interest

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 29 Main rule: entirely covered in the State where the employed activities are pursued └► Exception: the States listed in Annex VII: dual coverage when the self-employed activities are pursued in these States Simultaneous activities Employee & self-employed 1408/71 → 883/2004

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 30 ▪ Civil servant & employee and/or self- employed  State of civil servant ▪ Civil servant employed by several Member States  dual coverage Simultaneous activities Civil servant + Employee & self-employed 1408/71 → 883/2004

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 31 Mariners  Main rule: Covered in the State whose flag the ship is flying  Exception: Employer & residence of the mariner in the same Member State: covered in that State Travelling personnel of an international transport company  Main rule: state where the place of business of the employer is situated  Exceptions: employed by a branch or permanent representation principally occupied in the State of residence Special rules 1408/71 → 883/2004

Sarajevo 2010 Determining the applicable national social security scheme by B. De Pauw 32 The Escape Clause Two or more Member States, the competent authorities of these States or the bodies designated by these authorities may by common agreement provide for exceptions to the provisions of articles (13-16 → 11-15) in the interest of certain categories of persons or of certain persons.

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