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Seminar on social security and taxation in the context of mobility

Seminar on social security and taxation in the context of mobility. PEARLE (Brussels, 10.11.2009). Jona Ceuppens, NSSO Department for International Relations. Coordination of social security EEA legal texts. Regulations n° 1408/71 & 574/72

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Seminar on social security and taxation in the context of mobility

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  1. Seminar on social security and taxation in the context of mobility PEARLE (Brussels, 10.11.2009) Jona Ceuppens, NSSO Department for International Relations

  2. Coordination of social security EEAlegal texts • Regulations n° 1408/71 & 574/72 • Regulation 859/2003 : extension to third country nationals • In an intra-EU cross-border situation • Legally resident in a territory of an EU Member State • [Not accepted by Denmark] NEW Regulations 01.05.2010 • Regulations n° 883/2004 & 987/2009 • New regulation for the extension to third country nationals ? Pearle (Brussels 10.11.2009)

  3. Coordination of social security 5 basic principles • Determination of the applicabele legislation: avoiding positive and negative conflicts of law • Aggregation of periods of insurance, employment or residence (unemployment) • Exportation of benefits (old age pensions) • No discrimination • Cooperation between insitutions Pearle (Brussels 10.11.2009)

  4. Applicable legislation • Unity of legislation • Country of employment principle • Exceptions : • Specific rules for civil servants, mariners, … • Posting • Simultaneous activities in different member states Pearle (Brussels 10.11.2009)

  5. Posting 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 his State of origin, the necessary means to carry on his self-employed activity so as to be in a position to pursue it on his return. Consequences • Remain covered by social security scheme of the sending State • Exempted from the payment of contributions in the receiving State • Entitled to receive urgent medical treatment Pearle (Brussels 10.11.2009)

  6. Posting : substantive conditions • Worker should previously have been subject to the legislation of the "sending" State(professionally active, dependent, unemployed with benefits, …) • BE : minimum 30 days immediately prior to the posting • Exceptions (less than 30 days) : • Posting for a very short period of time (max 5 days) • Worker may not previously have been subject to the legislation of the Member State to which he is posted • Training (max 1 year) • Only undertakings which habitually carry on significant activities in the sending State • Free-lancer ? via SBK, recruitment agency, foundation (non profit), … • Direct relationship between the worker and the undertaking that posted him Pearle (Brussels 10.11.2009)

  7. Simultaneous activities in two or more Member States • Examples : • Tour in different Member States • Working for different ensembles in different States • Teaching in Member State A and performances in Member State B Pearle (Brussels 10.11.2009)

  8. 1408/71 State of residence principle if his activity partly in that territory or if several employers in different Member States Seat principle if no activities are being pursued in the State of residence and the employer(s) is (are) active in only 1 Member State 883/2004 State of residence principle if asubstantial partof the activities in this State or if several employers in different Member States Seat principle if no substantial part is being pursued in this State Simultaneous activities(salaried workers) Pearle (Brussels 10.11.2009)

  9. 1408/71 State of residence principle Member State in which the principal activities are being pursued if there are no activities in the State of residence 883/2004 State of residence principle ifa substantial part of the activities is being pursued in this State Member State in which the "center of his activities" is situated if there are no activities in the State of residence Simultaneous activities(self-employed) Pearle (Brussels 10.11.2009)

  10. 1408/71 Member State in which the salaried activities are being pursued Split legislationif annex VII is applicable 883/2004 Member State in which the salaried activities are being pursued Withdrawal of annex VII Simultaneous activities (salaried and self-employed activities) Pearle (Brussels 10.11.2009)

  11. 1408/71 Member State in which the civil servant is active and is insured under a special scheme Civil servant in two Member States -> split insurance 883/2004 Member State the legislation of which the civil servant's service is subject to Civil servant in two Member States ? No specific rule of designation Simultaneous activities(civil servant and paid employment or self-employed activities) Pearle (Brussels 10.11.2009)

  12. Simultaneous activities • Posting conditions do NOT apply : • Worker should not have been previously subject to the legislation of the "sending" State • No substantial activities required • No limitation into time (as long as this employment continues) • Interpretation problems • "normally employed in the territory of two or more Member States" ? • "Member State of residence" ? • E101 for what period of time ? Pearle (Brussels 10.11.2009)

  13. Art. 17 Reg. 1408/71 Art. 16 Reg. 883/2004 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 to 16 • in the interest of certain categories of persons or of certain persons Mostly used for : • extension of the posting period (mostly 5 years) • regularization of periods in the past • dispensations from the normal rules of designation (e.g. worker was not previously subject to the legislation of the sending State) Pearle (Brussels 10.11.2009)

  14. Problems for artists • (Often) bureaucratic and time-consuming procedures • Rules are not allways suitable for artists • short term work • new forms of mobilty • in BE often considered as employees, but no fix employer • short term insurance in one Member State = paying contributions, without benefits • Different interpretations of the same legislation • Collection of contributions from foreign employers • Lack of sincere cooperation between administrations in different Member States Pearle (Brussels 10.11.2009)

  15. E101-BE : simple procedures (?) • Posting of an employee (GOTOT) : • Electronic application via www.socialsecurity.be (24/24, 7/7) • Immediate return receipt • Electronic delivery within 24 hrs if all checks are ok • (No e-Box -> hard copy by post) • Simultaneous activities : • Application by questionnaire • E101 in principle for 12 months • Renewable on simple request • Mentions all Member States where a person is employed, no specific address is required Pearle (Brussels 10.11.2009)

  16. Posting of a free-lancer that is not a self employed according to Belgian legislation ? Via : • SBK • recruitment agency • foundation (non profit), … Pearle (Brussels 10.11.2009)

  17. Special solutions for artists (NSSO) • Context : • Belgian organisation • Performances in EEA or Switzerland • Artists are employees • Solutions : • Artists from different MS, but no performances in state of residence => BE legislation : seat principle (article 14,2,b,ii) • Artists from outside Belgium and also performances in state of residence • In principle legislation of state of residence (not Belgium) • Possible solutions: • First performance = in state of residence : that performance via local recruitment agency, than contract with Belgian organisation => BE legislation : seat principle (article 14,2,b,ii) • During tour performance, also in state of residence : first article 14,2,b,ii (BE), for performance in state of residence a posting under 14.1.a (BE), than again article 14,2,b,ii (BE) (3 E 101 forms !) • Residence in third country = never performances in state of residence => BE legislation : seat principle (article 14,2,b,ii) Pearle (Brussels 10.11.2009)

  18. Special solutions for artists (NSSO) • Context : • Belgian organisation • Performances in one EU Member State • Artists are employees • Solutions : • Artists previously have been subject to BE legislation (less than 30 days = ok, if max 5 days and worker was not previously subject to the legislation of the Member State to which he is posted) = Posting under 14.1a, remain subject to BE legislation • Artists previously have not been subject to BE legislation Posting is possible under article 17 (takes time + no guarantee that competent instutions of other MS will accept) Pearle (Brussels 10.11.2009)

  19. Special solutions for artists (NSSO) : scheme Pearle (Brussels 10.11.2009)

  20. Special solutions for artists (NSSO) : scheme Pearle (Brussels 10.11.2009)

  21. Questions ? Jona Ceuppens NSSO – Department for International Relations tel : +32 2 509 25 06 fax : +32 2 509 21 17 e-mail : jona.ceuppens@rsz.fgov.be

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