trESS national seminar Italy Rome, 30 May 2012 Yves Jorens – Project Director

1. Organisation and coordination of a network on the EU coordination of social security schemes in EU/EEA/CH training and reporting onEuropean Social SecuritytrESS III trESS national seminar Italy Rome, 30 May 2012 Yves Jorens – Project Director

2. Applicable legislation Which legislation is applicable ? One of the key problems for migrant workers The principle in international treaties: strong and exclusive character: avoid positive and negative conflicts EU Regulations 883/2004 and 987/2009: “Acquis Communautaire” free movement of workers

3. EU Regulation 883/2004 Applicable in 31 countries (Switzerland) Regardless of nationality Allinsuredpeople, i.e. employed persons, self-employed persons, civilservantsandstudents EU-concept: nationalsocial security legislation, notlabour relations

4. What are the fundamental principles behind the actual conflict rules ? Neutral character onlyavoidance of administrativecomplications no principle of favouritism Compulsorycharacter public character of social security no free choice MS cannotdetermineextenttowhichtheir or another MS' legislation is applicable Exclusivityand strong effect: mirror of single applicablelegislation actuallyunderpressure

5. The general framework Conflict rules: strong andexclusivecharacter: onlyonelegislation is applicable allcontributions must bepaid in this state separate rulesforactiveandnon-active persons

6. The general framework: active and non-active persons Fundamentalchoice: Active Persons: lex locilaboris regardlesswhereyou live / employer is basedBUT: civilservant: state of administrationemployingthis person non-activepeople: MS of residence activity on board of a vessel: state of flagunless person works on vessel of the flag state and is remuneratedbyanundertaking of other state andlives in that state: state of residence

7. Posting Concept one remains during temporary employment abroad subject to country of normal employment and not subject to country of temporary employment Objectives avoid administrative complications avoid impediments to the free movement of workers and services

8. Posting See Decision A2 of 12 June 2009 and Posting guide Is posting obligatory or not ?Yes (Van Delft-case)

9. Posting Distinction betweenposting and simultaneousactivities in more than one MS: the duration of the activity in one or more other MS (whether it is permanent or of an ad hoc or temporary nature) shall be decisive. For these purposes, an overall assessment shall be made of all the relevant facts including, in particular, in the case of an employed person, the place of work as defined in the employment contract (IR, Art. 14(7))

10. Posting within the European Union: judicial framework: several conditions to be fulfilled Non-condition: nature of employer's business is irrelevant also companies that engage workers just for posting abroad (eg. interim agencies) Condition 1: Workers must be subject to legislation of country of origin persons must be subject to legislation before posting (not same as employer) when is someone attached? 1 month for employees / 2 months for self-employed is this acceptable? case by case study not possible: work in A for employer in B and being posted from A to B

11. Posting within the European Union: judicial framework: several conditions to be fulfilled Condition 2: Organic link between employer and posting undertaking "on behalf of employer" legal link (not economic) between employee and employer number of elements are taken into account to determine the authority of employer: recruitment, contract of employment, dismissal, nature of work (≠ instructions), decision on remuneration (decision ≠ who actually pays) labour contract with host company excludes posting: in all circumstances? Condition 3: Link between employer and state where employer is established "employer normally carries out activities there" ordinarily perform activities there: not purely internal management activities

12. Posting within the European Union: judicial framework: several conditions to be fulfilled avoid post-office box companies Plum Case (404/98): German construction company set up Dutch company to combat stronger competition of Dutch construction companies in Germany: only administrative matters (answer phone, receiving mail – sometimes forwarded to Germany, accounts and job interviews)

13. Posting within the European Union: judicial framework: several conditions to be fulfilled criteria depend on characteristic of employer and nature of activities, i.e. quantitative assessment place of registered office number of administrative staff in posting state and state of employment place of recruitment (but is only there where one pays contributions) Majority of contracts with clients law applicable to contracts with clients and workers: but it is labour law (workers) country of consumer (clients)

14. Posting within the European Union: judicial framework: several conditions to be fulfilled number of contracts executed in posting state and employment state turnover (of about 25%) during appropriate typical period: difficult / fiscal aspect included – what is appropriate period? (not period of posting) => How long has an employer to conduct business in posting state? No period.

15. Posting within the European Union: judicial framework: several conditions to be fulfilled Condition 4: Duration maximum duration: 24 months (under 1408/71: 12 + 12 months) prolongation: Art. 16: 2 or more MS, the competent authorities of these MS or the bodies designated by these authorities may by common agreement provide for exceptions to Articles 11 to 15 in the interest of certain persons or categories of persons

16. Posting within the European Union: judicial framework: several conditions to be fulfilled normally up to 5 years in the interest of person this is employee, not employer (eg. Cyprus with respect to seafarers: country of maritime employment that has lower costs) not the benefits are important different criteria Potentially retroactive (Brusse, 101/83) = when legislation applied by mistake, agreement confirms application discretionary character can also be used in other (posting) situations ex. Bâle-Mulhouse airport employees subject to Swiss legislation if residence in Switzerland and toreadors living in France and occasionally taking part in bullfights in Spain

17. Suspension, Interruption and Cessation of Posting Posting to different MS which immediately follow each other shall in each case give rise to a new posting Brief interruption of the worker's activities with the undertaking in the State of employment, whatever the reason (holidays, illness, training at the posting undertaking, recalled for instructions …), shall not constitute an interruption of the posting period: so no illicitly extension by temporary interruption

18. Suspension, Interruption and Cessation of Posting When will temporary interruption result in cessation of posting? (Decision A2, 12 June 2009) Once a worker has ended a period of posting, no fresh period of posting for the same worker, the same undertakings and the same MS can be authorized until at least 2 months have elapsed from the date of expiry of the previous posting period 2 months counts for each period of interruption: e.g. after 3 times 1 month there is no interruption

19. Posting within the European Union: judicial framework: several conditions to be fulfilled Condition 5: No rotation of personnel may not be sent to replace another (posted?) person difficult to control if a particular position is continually being taken by a succession of new people different flexible interpretations, eg. counting contiguous period together ↔ deforestation

20. Posting and administrative formalities Which formalities ? Structured portable electronic documents (SED’s) A1-form replaces E-101 form Control, avoid abuse one of the big problems: not filled in forms, errors (not anymore under A1 forms?) legal nature of EU-forms forms issued are binding for other institutions and judges !

21. Posting and administrative formalities Scope of E101 form: «  So long as it has not been withdrawn or declared invalid, an E 101 certificate, is binding both upon the competent institution of the MS to which a self-employed person goes in order to carry out a work assignment and the person who calls upon the services of that worker” (Banks, C-178/97) As long as it has not been withdrawn or declared invalid by the authorities of the Member State which issued it, an E 101 certificate binds the competent institution and the courts of the Member State in which the workers are posted (Kiere NV, Case C-2/05)

22. Posting and administrative formalities should be withdrawn or declared invalid by MS that issued should ask issuing state for re-examination: 6 months for agreement; dialogue and conciliation procedure: agreement through contact person or to Admin. Commission if no agreement: 6 months

23. Posting and self-employed A person who normally pursues an activity as a self-employed person in a MS who goes to pursue a similar activity [1408: not required] in another MS shall continue to be subject to the legislation of the MS, provided that the anticipated duration of such activity does not exceed 24 months (BR, Art. 12(2))

24. Posting and self-employed eg. English opera singer performing one night in Brussels; German plumber fixing a leak in Luxembourg Unnatural phenomenon ? Very difficult to make a distinction with forms of simultaneous employment

25. Posting and self-employed Normally pursues implies: habitually carries out substantial activities in posting state pursued an activity before one is posted: 2 months: but flexible ! fulfil conditions in country of establishment during posting enabling to continue work after return: no pro-forma affiliation