European social security legislation
Regulation (EU) 883/2004
New Delhi, 19 February 2010
Clear solutions by sharp minds
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One system :
• Determination of one single applicable social security legislation in
case of international employment in Europe
– Binding consequences
• Harmonisation of key principles concerning contributions and
benefits
• answer to two questions:
– “In which system must I contribute?”
– “Which state will have to pay benefits?”
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Context
• Regulation 1408/71 and implementing Regulation 574/72– EEA nationals
• Regulation 859/2003: extension to nationals of third countries, e.g.India
☟• Regulation 883/2004
– Dated 29 April 2004
– Replaces Regulation 1408/71
– Only applies as of the date of the implementing regulation
&
• Regulation 987/2009 – In force since 1 May 2010
– Purpose: • Simplification
• Update
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Scope
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Personal scope of application (1)R° 1408/71 R° 883/2004
• Employees (+ civil servants),
self-employed and students
• Subject (or has been subject)
to the legislation of one or
more EU Member States
• Nationality of EU-Member
State, EEA or Switzerland
– Stateless persons and
refugees
– Family members
• Subject (or has been subject)
to the legislation of one or
more EU Member States
• Nationals of a Member State,
stateless persons and
refugees who reside in a
Member State &
– Family members
– Relatives
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Personal scope of application (2)
R° 1408/71 R° 883/2004
• Agreements with Switzerland
only concluded with original 15
Member States
• Since 1 June 2003: extension of
the rules to nationals of third
countries (e.g. India)
(Not for: Denmark, Liechtenstein,
Iceland, Norway & Switzerland)
• R° 883/04 not applicable to
Switzerland, Norway, Iceland
and Liechtenstein
R° 1408/71 applies
• Third country residents not
regulated
R° 1408/71 continues to
apply
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Material scope of applicationR° 1408/71 R° 883/2004
• All branches of social security:
– Sickness and maternity
– Invalidity
– Old age benefits
– Survivors’ benefits
– Industrial accidents and
occupational diseases
– Death grants
– Unemployment benefits
– Family benefits
• Exception: annual vacation,
extra-legal pensions, social assistance
• All branches of social security:
– Sickness and maternity +
– Fatherhood allowance
– Invalidity
– Old age benefits
– Allowances forrelatives
– Industrial accidents and
occupational diseases
– Death grants
– Unemployment benefits
– Family allowances
– Early exit benefits
• Same exceptions
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Rules of determination of one legislation
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General principle: State of employment
Living in
Working in
SS =
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Basic rules
Article 13 R° 1408/71 Article 11 R° 883/2004
• 1 legislation
• State of work principle (De
Jaeck)
– For employees and self-
employed persons
• Coordination ≠ harmonisation
• Appointment of legislation ≠
right to benefits
• 1 legislation
• State of work principle
– For employees and self-
employed persons
– Persons enjoying benefits
• Coordination ≠ harmonisation
• Appointment of legislation ≠
right to benefits
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Exception to the rule: Posting (1)
Article 14, 14bis & 14 ter
R° 1408/71
Article 12 R° 883/2004
• Different rules
– Employees
– Self-employed persons
– Sailors
• 12 months x 2
• No immediate posting
• Rules
– Employees
– Self-employed persons
• 24 months
• Immediate posting
subject for 1 month
2 months for non-
employed persons
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Exception to the rule: Posting (2)
Article, 14bis & 14 ter
R° 1408/71
Article 12 R° 883/2004
Article § 1 and 2 R°987/2009
• Conditions for Employees:
– For the account of Employer
– Must not replace another
person whose detachment is
terminated
– Company to which one is
normally linked
• Conditions for Employees:
– For the account of Employer
– Must not replace another
person
– Substantial activities (≠
purely internal management)
• Conditions for self-employed:
– Work activities prior to posting
& necessary conditions must
continue to be fulfilled
– Duties of the same kind
(factual kind)
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Simultaneous employment of salaried personnel
Article, R° 1408/71 Article R° 883/2004
Article 14 paragraph 5 and 8
R° 987/2009
• State of residence if:
– part of their duties
or
– ≠ employers with registered
office in ≠ Member States
•State of headquarters if:
– no services in state of
residence for employer
• State of residence if:
– “substantial duties”
• 25% of the time or remuneration
– works for ≠ enterprises with
headquarters in ≠ Member States
– works in ≠ Member States for
employer from outside the EU +
no substantial duties in state of
residence
• State of headquarters if :
– only 1 employer !
– “where he is mainly employed”
only in the Dutch text
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Residence
• Article 1 h R° 1408/71: Residence = normal place of residence
• Article 1 paragraph 1 R° 883/04: Residence = “place where a
person habitually resides”
• Article 11 R° 987/09 = if no consensus the centre of interest is
established through information & facts:
– Duration and continuity of presence on territory
– Personal situation
• Nature of work
• Family situation
• Non remunerated activities
• For students: source of income
• Accommodation situation (permanent character)
• Where deemed to live for tax purposes
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Simultaneous work as self-employed
Article 14bis § 2, R° 1408/71 Article 13 R° 883/2004
Article 14 paragraph 5 and 8
R°987/2009
• State of residence:
– works part time there
• Place of main activity if:
– no part of the activities is carried
out in the state of residence
• State of residence:
– “substantial work activities”
• 25% turnover, time, number of
services
• Centre of interests of work
activities if there is no substance
in state of residence
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Centre of interests
• “For the purposes of the application of Article 13(2)(b) of the
basic Regulation, the „centre of interest‟ of the activities of a self-
employed person shall be determined by taking account of all
the aspects of that person‟s occupational activities, notably the
place where the person‟s fixed and permanent place of business
is located, the habitual nature or the duration of the activities
pursued, the number of services rendered, and the intention of
the person concerned as revealed by all the circumstances.”
(Article 14, 9 R°987/2009)
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Simultaneous work activities as employees + self-
employed
Article 14quater, R° 1408/71 Article 13 § 3 R° 883/2004
• (a) Member State where
activity is carried out in a
salaried capacity
• (b) If Annex VII :
Split submission
• Member State where activity is
carried out in a salaried capacity
• Annex VII deleted
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Simultaneous employment: comment
• Single legislation is applicable as if the activities
concerned are entirely carried out in one Member
State requalification
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Exception article
Article 17 R° 574/72/71 Article 16 §1 R° 883/2004
• Common agreement
• Exception to Article 13-16 R°
in the interest of the person
concerned
• Common agreement
• Exception to Article 11-15 R° in
the interest of the person
concerned
• Request must, if possible, be
priorly filed with the competent
authorities of the institution of
the Member State whose
legislation the employee or the
person concerned wishes to
apply.
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E 101
• E101 replaced by electronic exchange
SED101
• Binding until withdrawal or annulment by the Member
State which has delivered it
• Paper only upon request
• Institution of the detachment state delivers it
• In case of simultaneous employment:
Article 12bis R° 574/72/71 Article 15, 16 & 19§1 R° 987/2009
• Institution of known place of
residence
• Institution delivers proof of
submission
• Institution of the known place of
residence
• Article 19: Upon request of the
person or employer concerned the
institution delivers a declaration
stating the applicable legislation
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Simultaneous existence of two Regulations
• Old R°1408/71:
– Applicable in Switserland, Norway, Iceland and Liechtenstein
– Applicable to third country nationals
• New R°883/2004
– In force as of 1 May 2010
• Transition period: application of R°1408/71 continues:
– If on the basis of R°883/2004 subject to social security of another
state
– As long as “the situation concerned persists” (?)
– Maximum 10 years
– Unless the party concerned asks for the application of R°883/2004
within 3 months
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Thank you for your attention !
Filip [email protected]
0032 2 773.23.29
Diane ECTORS Johan [email protected] [email protected]
0032 2 743.43.45 0032 2 743.43.76
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