EUROPEAN COMMISSIONEMPL/01841/2009 - EN

SS.TM.08/09
Employees working in different MemberStates and applicable legislation under Regulation No 883/2004
Belgian and Dutch Federations of Enterprises and Employers – 24.09.2009

ORIG:EN

ADVISORY COMMITTEE
ON SOCIAL SECURITY FOR MIGRANT WORKERS

Subject:Employees working in different MemberStates and applicable legislation under Regulation No 883/2004

Note from the Belgian and Dutch Federations of Enterprises and Employers

of24 September 2009

MEMORANDUM

Sticking points in practice with regard to the introduction of Regulation 883

(This memorandum has been drafted by VNO-NCW and VBO-FEB, in consultation with Ger Essers)

In some Member States the information process concerning the introduction of the new Regulation 883 (which replaces Regulation 1408) has recently got under way. This has led to considerable disquiet among companies with employees working in different Member States and among the employees in question.

The parties bringing this memorandum before the Advisory Committee on social security for migrant workers aim to use this memorandum to instigate a solution to the problems that are expected to arise in practice.

A description of the sticking points and possible solutions is presented below.

  1. Regulation 883 introduces the concept of a “substantial part of the activities carried out in the country of residence”. “Substantial” is defined as 25% or more of the working time and/or remuneration. One of the consequences of this is that the country in which a worker is insured depends on the degree of mobility. This can cause a yo-yo effect, which is undesirable. For that matter, in practice it is also not easily possible to determine (beforehand or subsequently) precisely how many hours or days a worker has resided in a particular MemberState (“workers don’t have a chip built into them”). This problem will only increase in the years to come, in part due to the increasing flexibility in labour relations (such as teleworking, flexible working hours, and so on).

Possible solution:

To avoid the aforementioned yo-yo effect (whereby the social security legislation applicable constantly changes), to meet increasing (cross-border) worker mobility and flexibility, and with a view to reducing red tape for companies, one solution could involve rulings being issued with a two-year period of validity. This term tallies with the new period in the event of posting.

  1. The exception in Regulation 1408 for the transport sector is not included in Regulation 883, meaning that international transport has to abide by the general rules and the aforementioned 25% provision. Depending on the route taken by international drivers, they are insured in the country where the employer is established or in the country of residence. Moreover, the rules demand that a tally be kept not only of working times and driving times, but also of the times a driver crosses a border. This creates impossible and unacceptably high administrative costs for the employer and causes a great deal of legal uncertainty.

Possible solution:

The best solution would appear to involve an exception for international transport again being included in the Regulation.
A less far-reaching and perhaps temporary solution would be to stipulate that an individual who on the grounds of Regulation 883 is subject to the legislation of a Member State other than that to which that person is subject pursuant to Article 14, para. 2, subsection a) of Regulation (EEC) No. 1408/71, continues to be subject to this legislation provided the employment of this person with his employer continues intact (unless he and his employer together submit a request to be subject to the legislation applicable pursuant to Regulation 883). However, this does not offer a solution for new cases.
In the (very) short term the sector could also receive assistance with the issuing of rulings for two years (see point 1).

  1. Article 87, para. 8 of Regulation 883 (transitional provision) sees to it that the applicable legislation does not change purely and simply due to the entry into force of the new Regulation. People continue to be subject to this applicable legislation “as long as the relevant situation remains unchanged”. The text reproduced in italic is very vague.

Possible solution: It is important that this passage be explained in greater detail. The Administrative Committee might be the appropriate body to do this. We would advocate as wide an interpretation as possible, so that employees and employers are given as much scope as possible to continue with the situation they want.

  1. Article 16 of Regulation 883 offers the possibility of exceptions, whereby the assumption is that the person concerned can submit requests to this end. This can lead to unpleasant surprises for companies.

Possible solution: Both for this article and for Article 87, para. 8 (transitional provision), the condition that “the person in question must notify his employer of this request beforehand” should apply. Such a provision should be included in the aforementioned articles. Agreements on this could perhaps also be made in the Administrative Committee.

  1. In principle the (application) Regulation gives rise to changes that have to be applied at any time during the year – a situation that leads to extra administrative costs.

Possible solution: The amendment of the applicable legislation only has to be carried through with effect as of the beginning of a new calendar year. 16 of Regulation 883 offers the possibility of exceptions, whereby the assumption is that the person concerned can submit requests to this end. This can lead to unpleasant surprises for companies.

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