Filip Saelens EU social security regulations
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Filip Saelens EU social security regulations

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Filip Saelens EU social security regulations Filip Saelens EU social security regulations Presentation Transcript

  • Clear solutions by sharp minds European social security legislation Regulation (EU) 883/2004 New Delhi, 19 February 2010
  • 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?” 2
  • 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 3 View slide
  • Scope 4 View slide
  • Personal scope of application (1) R° 1408/71 R° 883/2004 • Employees (+ civil servants), self-employed and students • Subject (or has been subject) • Subject (or has been subject) to the legislation of one or to the legislation of one or more EU Member States more EU Member States • Nationality of EU-Member • Nationals of a Member State, State, EEA or Switzerland stateless persons and – Stateless persons and refugees who reside in a refugees Member State & – Family members – Family members – Relatives 5
  • Personal scope of application (2) R° 1408/71 R° 883/2004 • Agreements with Switzerland • R° 883/04 not applicable to only concluded with original 15 Switzerland, Norway, Iceland Member States and Liechtenstein  R° 1408/71 applies • Since 1 June 2003: extension of • Third country residents not the rules to nationals of third regulated countries (e.g. India)  R° 1408/71 continues to (Not for: Denmark, Liechtenstein, apply Iceland, Norway & Switzerland) 6
  • Material scope of application R° 1408/71 R° 883/2004 • All branches of social security: • All branches of social security: – Sickness and maternity – Sickness and maternity + – Invalidity – Fatherhood allowance – Old age benefits – Invalidity – Survivors’ benefits – Old age benefits – Industrial accidents and – Allowances forrelatives occupational diseases – Industrial accidents and – Death grants occupational diseases – Unemployment benefits – Death grants – Family benefits – Unemployment benefits – Family allowances – Early exit benefits • Exception: annual vacation, • Same exceptions extra-legal pensions, social assistance 7
  • Rules of determination of one legislation 8
  • General principle: State of employment Living in Working in SS = 9
  • Basic rules Article 13 R° 1408/71 Article 11 R° 883/2004 • 1 legislation • 1 legislation • State of work principle (De • State of work principle Jaeck) – For employees and self- – For employees and self- employed persons employed persons – Persons enjoying benefits • Coordination ≠ harmonisation • Coordination ≠ harmonisation • Appointment of legislation ≠ • Appointment of legislation ≠ right to benefits right to benefits 10
  • Exception to the rule: Posting (1) Article 14, 14bis & 14 ter Article 12 R° 883/2004 R° 1408/71 • Different rules • Rules – Employees – Employees – Self-employed persons – Self-employed persons – Sailors • 12 months x 2 • 24 months • No immediate posting • Immediate posting  subject for 1 month  2 months for non- employed persons 11
  • Exception to the rule: Posting (2) Article, 14bis & 14 ter Article 12 R° 883/2004 R° 1408/71 Article § 1 and 2 R°987/2009 • Conditions for Employees: • Conditions for Employees: – For the account of Employer – For the account of Employer – Must not replace another – Must not replace another person whose detachment is person terminated – Substantial activities (≠ – Company to which one is purely internal management) normally linked • Conditions for self-employed: – Work activities prior to posting & necessary conditions must continue to be fulfilled – Duties of the same kind (factual kind) 12
  • 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: • State of residence if: – part of their duties – “substantial duties” or • 25% of the time or remuneration – ≠ employers with registered – works for ≠ enterprises with office in ≠ Member States 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: • State of headquarters if : – no services in state of – only 1 employer ! residence for employer – “where he is mainly employed” only in the Dutch text 13
  • 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 14
  • 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: • State of residence: – works part time there – “substantial work activities” • 25% turnover, time, number of services • Place of main activity if: • Centre of interests of work – no part of the activities is carried activities if there is no substance out in the state of residence in state of residence 15
  • 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) 16
  • Simultaneous work activities as employees + self- employed Article 14quater, R° 1408/71 Article 13 § 3 R° 883/2004 • (a) Member State where • Member State where activity is activity is carried out in a carried out in a salaried capacity salaried capacity • (b) If Annex VII : • Annex VII deleted Split submission 17
  • Simultaneous employment: comment • Single legislation is applicable as if the activities concerned are entirely carried out in one Member State  requalification 18
  • Exception article Article 17 R° 574/72/71 Article 16 §1 R° 883/2004 • Common agreement • Common agreement • Exception to Article 13-16 R° • Exception to Article 11-15 R° in in the interest of the person the interest of the person concerned 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. 19
  • 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 • Institution of the known place of residence residence • Institution delivers proof of • Article 19: Upon request of the submission person or employer concerned the institution delivers a declaration stating the applicable legislation 20
  • 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 21
  • Thank you for your attention ! Filip SAELENS filip.saelens@loyensloeff.com  0032 2 773.23.29 Diane ECTORS Johan KERREMANS diane.ectors@loyensloeff.com johan.kerremans@loyensloeff.com  0032 2 743.43.45  0032 2 743.43.76 22