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Determining the applicable national social security scheme

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. Co-ordination of social security schemes. “ Determination of the legislation applicable ”

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Determining the applicable national social security scheme

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  1. 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

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

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

  5. 883/2004 1408/71 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] 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 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 Determining the applicable national social security scheme by B. De Pauw

  9. Regulation n° 1408/71 → 883/2004 SIMPLIFICATION, ANYONE? 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 Determining the applicable national social security scheme by B. De Pauw

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

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

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

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

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

  16. PostingThe 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) 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 PostingSubstantive conditions – interpretations & guidelines CASSTM Determining the applicable national social security scheme by B. De Pauw

  18. PostingSubstantive 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) 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 Determining the applicable national social security scheme by B. De Pauw

  20. Posting 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 Reg. 574/72 Determining the applicable national social security scheme by B. De Pauw

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

  22. Special rules1408/71 → 883/2004 • 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 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" Determining the applicable national social security scheme by B. De Pauw

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

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

  26. 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 Simultaneous activitiesEmployee Determining the applicable national social security scheme by B. De Pauw

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

  28. 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 Simultaneous activitiesSelf-employed Determining the applicable national social security scheme by B. De Pauw

  29. Simultaneous activitiesEmployee & self-employed1408/71 → 883/2004 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 Determining the applicable national social security scheme by B. De Pauw

  30. Simultaneous activitiesCivil servant +Employee & self-employed1408/71 → 883/2004 • Civil servant & employee and/or self-employed  State of civil servant • Civil servant employed by several Member States  dual coverage Determining the applicable national social security scheme by B. De Pauw

  31. Special rules1408/71 → 883/2004 • 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 Determining the applicable national social security scheme by B. De Pauw

  32. The Escape Clause • Two ormore 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. Determining the applicable national social security scheme by B. De Pauw

  33. Determining the applicable national social security scheme by B. De Pauw

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