A-Z on social security coordination (FAQs) - P

Paternity benefits equivalent to maternity benefits are indeed included in the scope of the regulation (see the keyword material scope, social security risks). Some Member States provide specific (cash) benefits paid immediately before or after childbirth which are directed not (or not only) to the mother but to the father of the newborn child (e.g. allowances paid during paternity leave). These benefits are to be distinguished from child-raising allowances or parental benefits, which, for regulation purposes, are classified as family benefits, and which are paid for a longer period of time following the birth of the child.

Paternity benefits are coordinated in the same way as maternity benefits, which, in turn, follow the same coordination rules as sickness benefits (see the keywords maternity benefits, sickness benefits).

Regulation 883/2004 covers the old-age pensions. These specific rules prevent migrant workers from losing insurance periods and acquired pension rights, as a result of the exercise of their free movement rights within Europe, and thus being placed at a disadvantage in relation to the position in which they would have been had they completed their entire career in only one Member State. Nevertheless, it should be noted that given the disparities between the national social security legislations, which are not overcome by the coordination provisions, moving from one Member State to another may be more or less advantageous for the insured person in terms of entitlements and contributions in any particular case.

The rules on pensions ensure each of the States where a person has worked will preserve his/her insurance record until s/he reaches pensionable age.

The Regulation also covers invalidity pensions. The Regulation foresees rules for calculating these pensions when an individual has been subject to the legislation of more than one Member State. National invalidity insurance schemes are divided into two types (type A and type B systems) under the Regulation. A completely different coordination regime applies according to whether the person concerned has completed periods of invalidity insurance exclusively under type A systems or whether s/he has completed periods of invalidity under at least one type B system.

Supplementary pensions are retirement, survivors’ or invalidity pension schemes designed to supplement or replace statutory state pensions: The Regulation does not apply to these types of pensions. To protect the rights of members of supplementary pension schemes moving from one Member State to another, ‘Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community’ applies.

The large majority of Europeans are covered by the regulation.

The regulation applies to persons who are either nationals of an EU/EEA Member State and Switzerland or who are stateless persons and refugees, if they reside in an EU/EEA Member State or Switzerland and if they are or have been subject to the social security legislation of one or more EU/EEA Member States. This means that, if you are a EU/EEA citizen who resides in the EU/EEA and who is insured in an EU/EEA Member State, the regulation is applicable to you.

The family members and the survivors of the persons in the previous category are also covered, irrespective of their nationality, as well as certain other survivors (see the keywords family member and survivor).

Finally, third-country nationals who are not already covered by the regulation solely on the grounds of their nationality, as well as their family members and survivors, also fall within the scope of social security coordination, provided they legally reside in a Member State and are in an intra-EU situation (see the keyword third-country nationals). However, the extension to these groups does not apply in the relations with Denmark, Liechtenstein, Iceland, Norway and Switzerland.

No, definitely not. The regulation also applies to people who do not currently work or even who have never worked, provided they are of have been subject to the social security legislation of a Member State.

Even under the former regulation, Regulation 1408/71, large groups of economically inactive persons were already covered, such as pensioners, unemployed persons, students and family members. The current regulation, however, goes further in that it does away, for the purposes of the definition of the personal scope, with the reference to employed and self-employed persons.

Yes, you could. If you are a migrant worker or a member of his/her family, you could invoke the fundamental freedom of movement of workers, enshrined in Article 45 TFEU, and Regulation 492/2011, which implements the principle of non-discrimination in the context of the free movement of workers. The concept of worker for the purposes of Article 45 TFEU and Regulation 492/2011 is very broad and covers any person who pursues effective and genuine activities (as opposed to purely marginal and ancillary activities) for a certain period of time, for and under the direction of another person and in return for remuneration. The concept extends to workers who do not come within the scope of the regulation, for instance because they are not subject to the social security legislation of a Member State (e.g. privately insured workers, officials of the EU institutions).

Article 7(2) of Regulation 492/2011 guarantees migrant workers equal treatment with national workers as regards all “social advantages” in the State of employment. This notion is a very broad one and includes, inter alia, social security benefits. Residence conditions for entitlement to social security benefits are indirectly discriminatory, as they can be more easily met by national workers than by those from other Member States. As a migrant worker or a member of his/her family, you could rely on this provision to challenge such a residence requirement in the legislation of the State where you work. If the authorities of that State cannot demonstrate that the requirement is objectively justified and proportionate to the aim pursued, you could export the social security benefit to the Member State where you reside. In a recent judgement, for instance, the Court of Justice has ruled that Article 7(2) of Regulation 492/2011 precludes the spouse of a migrant worker carrying on an occupation in one Member State, who does not work and is resident in another Member State, from being refused a social advantage with the characteristics of German child-raising allowance on the grounds that s/he did not reside in the former State.

Although Regulation 492/2011 refers only to employed persons, the Court of Justice has expanded the principle of equal treatment as enshrined in Article 7(2) of this Regulation to self-employed persons.

Even if you are not a migrant worker or a member of his/her family, you could still rely on the right to reside and to move freely within the Union, subject to certain conditions and limitations, which is conferred by Article 21 TFEU upon every citizen of the EU, to challenge national residence requirements. However, the law on this point is still developing and the scope of the rights attached to the status of EU citizen is not yet clear.

It should be noted that there are only very few cases of economically active persons who do not come within the scope of the regulation.

See the keywords free movement of workers and citizen of the EU.

No, it does not. Even though information between the social security institutions will be exchanged by electronic means, standard paper forms called “portable documents” continue to exist for social security coordination purposes. Likewise, although the exchange of social security information is chiefly a matter for the institutions concerned, in some cases also the insured person is involved in this process, inter alia by means of these paper forms.

Portable documents are issued by a social security institution to an insured person. Some types inform the holder, others attest to certain entitlements and yet others allow the holder to initiate certain procedures. They are not constitutive of rights. Ten different types of portable documents exist.

These are the following:

• the European Health Insurance Card (see the keyword medical care), although this card and the relevant Replacement Certificate are not as such included in the below series of portable documents (e.g. no corresponding numbering);
• the portable document A1 attesting that a person is subject to a certain legislation (e.g. of the posting country);
• the portable document S1 necessary for the registration with your State of residence to receive sickness benefits in kind there;
• the portable document S2 for planned care outside the competent Member State;
• the portable document S3 for the special entitlement of frontier workers in their previous State of employment;
• the portable document DA1 certifying that there is special entitlement to benefits under a scheme for accidents at work or occupational diseases;
• the portable document P1 which contains the summary note of pensions entitlements;
• the portable document U1 certifying periods of insurance or employment completed by the person concerned in the State that issues the document;
• the portable document U2 certifying that a person retains the right to unemployment benefit while looking for work in another country;
• the portable document U3 which is used for communicating to the person concerned during his/her export of benefits that circumstances likely to affect his entitlement to benefits have occurred.

You can find the numbered portable documents here.

See also the keywords structured electronic document and electronic exchange of social security information.

If you are temporarily employed by your employer in another Member State you can, provided certain conditions are met, remain subject to the legislation of the sending Member State. You are then considered to have been posted. This is an exception to the general rule according to which a person is subject to the legislation of the State where s/he pursues an activity as an employed person. The objective of this posting exception is to facilitate the freedom to provide services for the benefit of employers which post workers to Member States other than that in which they are established, as well as the freedom of workers to move to other Member States, in particular by avoiding the administrative complications which would result from the application of the general rule where the period of employment is of short duration. It follows that, if the relevant posting conditions are not met, this general rule applies and you will become subject to the legislation of the new State of employment.

Further details on posting can be found in Part I of the Practical Guide “The legislation that applies to workers in the EU, the EEA and in Switzerland”, drawn up by the Administrative Commission for the Coordination of Social Security Schemes.

In general, there are five main conditions.

The first condition has to do with the duration of the posting: the anticipated duration of the work should not exceed 24 months. If it is clear from the outset that the work to be carried out abroad lasts longer, the posting exception cannot be relied upon.

The second condition relates to the existence of a direct relationship between the employer and the worker throughout the posting period. The essential element is that the work in the State to which the employed person is sent continues to be carried out on behalf of the posting undertaking. In order to establish whether such a direct relationship continues to exist, a number of elements have to be taken into account, such as responsibility for recruitment, employment contract, remuneration (without prejudice to possible agreements between the employer in the sending State and the undertaking in the State of employment on the payment to the workers), dismissal, and the authority to determine the nature of the work. If these responsibilities continue to lie with the employing undertaking, it can be said to maintain a direct relationship with the worker. On the other hand, the direct relationship between the employer and the worker is broken if the latter is made available to a third undertaking.

The third condition concerns the existence of ties between the undertaking employing the worker and the Member State where it is established. In particular, only employers which habitually carry out significant activities in the territory of the Member State in which they are established. This refers to employers ordinarily performing substantial activities in that State, other than purely internal management activities, having regard to the specific characteristics of each employer and the nature of the activities carried out. These could include, among others, the place where the undertaking has its registered office and administration, the number of administrative staff working in the Member State in which it is established and in the other Member State, the place where posted workers are recruited and the place where the majority of contracts with clients are concluded, the law applicable to the contracts concluded by the undertaking with its workers and clients, the turnover during an appropriately typical period in each Member State concerned and the number of contracts performed in the sending State (e.g. turnover of approximately 25% of total turnover in the posting State could be a sufficient indicator, but cases where turnover is under 25% would warrant greater scrutiny).

The fourth condition refers to the prohibition of replacement. A worker cannot be sent abroad to replace another posted person.

Finally, as a fifth condition, the worker must have been subject to the legislation of the posting Member State for some time prior to being posted. In general, having been subject to that legislation for one month can be considered as meeting this requirement. Shorter periods do not necessarily rule out posting, but require a case-by-case evaluation taking account of all the other factors involved.

In principle, the answer is no. The direct relationship between the posting employer and the worker – which is one of the conditions to apply the posting exception, see question 50.2 - is broken if the latter is made available to a third undertaking.

However, there may be situations involving three undertakings where posting is possible. In particular, when a worker posted by an undertaking in the sending Member State to an undertaking in the State of employment, is also posted to one or more other undertakings in the same State of employment, the posting provisions continue to apply provided the work is still carried out on behalf of the posting undertaking, i.e. when there is still a direct relationship between the employer who posted the worker and the worker him- or herself. This may be the case, notably, when the three undertakings are part of the same parent company (e.g. a multinational). When a mother undertaking posts a worker to another Member State in order to perform work successively or simultaneously in two or more daughter companies, the person can still be considered to be posted by the mother undertaking.

On the other hand, posting is excluded if the two daughter companies are established in different States. Posting to another Member State only applies to that State. When a third State is involved (that means that the daughter company in Member State A posts its employee to the mother company in Member State B which sends him on to another daughter company in Member State C), the general rule of the lex loci laboris or the rules on simultaneous employment in two or more Member State apply (see the keyword applicable legislation). Nevertheless the situation is different if the mother company in Member State B posts its employee first to one daughter company in Member State A and afterwards to another daughter company in Member State B; in this case both cases could be regarded as posting if the other criteria are met.

No, absolutely not. One of the conditions that have to be fulfilled for the posting exception to apply is that you must have been subject to the legislation of the posting Member State (i.e. State B) for some time prior to being posted. As this is not the case, the general rule applies and you will become subject to the legislation of Member State C, the State of your future employment.

The continued existence of a direct relationship between the sending undertaking and yourself is one of the conditions of posting. One of the relevant criteria in this regard is that the responsibility for remuneration continues to lie with the posting undertaking. However, the fact that the salary is paid by the undertaking to which you are posted does not necessarily rule out posting. It is possible for the sending undertaking and the undertaking in the State of employment to conclude an agreement to the effect that the latter is responsible for the actual payment of the salary, at the expense of the former. Likewise, in the framework of posting by a parent company, it is common practice for employees to be placed on the payroll of the daughter company to which they are posted even though the parent company remains the employer and work is carried out on its behalf. If there is an invoice traffic between the parent company and the daughter company and if the salary can be attributed to the former, the parent company can be considered liable for the salary even though the daughter company actually makes the payments.

In the absence of such agreement or invoice traffic, it becomes difficult to identify the continued existence of a direct relationship with the sending undertaking. Even so, the responsibility for remuneration is not the only element in the assessment of such relationship. Other criteria need to be taken into account, such as the responsibility for recruitment and dismissal, employment contract and the authority to determine the nature of the work.

There can be no situation of posting in the following situations:
 

• if the undertaking to which the worker has been posted places him/her at the disposal of an-other undertaking in the Member State in which it is situated;
• if the worker posted to a Member State is placed at the disposal of an undertaking situated in another Member State;
• if the worker is recruited in a Member State in order to be sent by an undertaking situated in a second Member State to an undertaking in a third Member State;
• if the worker is recruited in a Member State in order to be sent by an undertaking situated in a second Member State to an undertaking in the first Member State;
• if there is in addition to the contract with the posting undertaking also a local contract providing for remuneration concluded with the undertaking to which the worker is posted.

Brief suspension of your activities with the undertaking in the State to which you are sent, whatever the reason (holidays, illness, training or assignment at the posting undertaking etc.), is not considered to constitute an interruption of the posting period. The posting continues to exist during this suspension, without the posting period being extended with an equivalent period. The posting will therefore end precisely upon expiry of the planned period.

In case of longer suspension of work it is up to the persons concerned either to stick to the previously programmed period of posting or to end the posting with a view to arranging a new posting by the same person, taking into account a necessary break of at least 2 months.

The regulation cannot answer this question. You will have to refer to any bilateral convention between the Member State where you normally work and the State you will be sent to, or to the national legislation of the Member State of employment.

As the regulation is not applicable, there is no guarantee that you will not be subject to two legislations at the same time, and therefore have to pay contributions twice.

It is not posting within the meaning of the regulation, as this only applies to employers established in a Member State of the EU, EEA, the UK or in Switzerland (see the keyword territorial scope). The posting exception of the regulation therefore cannot be relied on. However, other international agreements may apply. You can, for example, be temporarily posted abroad within the framework of a bilateral convention.

As you continue to be subject to the legislation of the State from which you were posted, you are entitled, during the posting period, to the same social security benefits as those you would normally be entitled to if you worked in that State. However, there are special provisions for sickness benefits in kind (i.e. medical care). Upon presentation of the European Health Insurance Card (EHIC), you (and your family members who came along) are entitled to occasional care, i.e. care which becomes medically necessary during your stay in the State to which you are posted, taking into account the length of your stay and the nature of the benefits (see question 41.1). If, in exceptional cases, you transferred your residence to the State to which you are posted, you need to register with the institution of that State. You will then be entitled to the same care as the persons insured in that State. You will be issued, by the institution of the State in which you continue to be insured, with a portable document S1. In both cases (stay and residence), the care provided is at the expense of the State from which you were posted.

In principle, this is not possible. Once a worker has ended the maximum period of posting of 24 months, no fresh period of posting for the same worker, the same undertakings and the same Member State can be authorised until at least two months have elapsed from the date of expiry of the previous posting period. Derogation from this principle is, however, permissible in specific circumstances.

If the posted worker could not complete the work due to unforeseeable circumstances, he may request the extension of the initial posting period until the completion of such work (up to 24 months in total) without taking into account the necessary break of at least 2 months. Such request must be submitted and substantiated before the end of the initial posting period

Yes, it is possible for self-employed persons to post themselves temporarily to another Member State, even though it is much less common than for employed persons. Like the latter, posted self-employed persons remain subject to the legislation of the Member State where they normally pursue their self-employed activities. Posting for self-employed persons is subject to a number of conditions which, if not fulfilled, lead to the application of the general rule of the lex loci laboris or of the rules on simultaneous (self-)employment in two or more Member State (see the keyword applicable legislation).

The first condition relates to the duration of the posting. As for posted employed persons, the anticipated duration of your activities abroad should not exceed 24 months.

Secondly, in order to be able to post yourself abroad, you must normally pursue an activity as a self-employed person in the sending State. This means that you must habitually carry out substantial activities in the territory of the Member State where you are established. In particular, you must have already pursued your activity for some time before the date of posting. In general, having pursued your activity for two months can be considered as meeting this requirement. Shorter periods do not necessarily rule out posting, but require a case-by-case evaluation taking account of all the other factors involved.

Thirdly, during the posting, you must continue to fulfil, in the State where you are established, the requirements for the pursuit of your activity so as to be able to resume it upon your return. Relevant criteria in this regard are the maintenance of an office space, payment of taxes, having a professional card and a VAT number and registration with the chamber of commerce or professional bodies.

Finally, as a fourth condition, the activity which you go to pursue abroad need to be similar to those which you normally pursue in the State of establishment. “Similar” refers to the actual nature of the activity, rather than to its qualification as employed or self-employed by the legislation of the State where you go to pursue your activity. For instance, a dentist cannot post him- or herself abroad to temporarily engage in agricultural activities. On the other hand, a self-employed artist can rely on the posting provision to temporarily perform his/her profession in another Member State, even if that activity is regarded as an employed activity pursuant to the legislation of that State. In general, self-employed activity in the same sector would be regarded as pursuing a similar activity. However, it must be recognised that even within sectors, work can be very diverse and it may not always be possible to apply this general rule.

Further details on posting of self-employed persons can be found in Part I of the Practical Guide “The legislation that applies to workers in the EU, the EEA and in Switzerland”, drawn up by the Administrative Commission for the Coordination of Social Security Schemes.

You or your employer must inform the institution of the State where you normally work (i.e. the competent institution) that you will be posted to another Member State.

If the posting conditions are fulfilled, the competent institution will provide you with a document certifying that you remain subject to its legislation during your temporary work abroad. This certificate, portable document A1, states, among other things, the name and address of the employer which posts you and the beginning and end of the anticipated posting period.

The competent institution has a duty to duly inform your employer and yourself of the conditions under which you may continue to be subject to its legislation. Your employer, in particular, will be informed of the possibility of checks throughout the posting period so as to ascertain that this period has not come to an end. Such checks may relate to the payment of contributions and to the maintenance of the direct relationship. The competent institution must also inform the institution of the Member State to which you will be posted.

You and your employer are under the obligation to inform the competent institution of any change occurring during the posting period, such as an interruption of activities or a merger or transfer of the posting undertaking. The competent institutions of both States must cooperate in carrying out the checks. The portable document A1 is intended to be shown to the inspection services in the State to which you are posted. The absence of such document does not constitute an obstacle to the posting; portable documents are not constitutive of rights (see the keyword portable document). However, your employer will have to prove that the posting conditions are fulfilled.
The portable document is binding for the institution of the Member State to which you are posted. It must be accepted by that institution as long as it has not been withdrawn or declared to be invalid by the authorities of the competent State. If there is a doubt about the validity of the document or the accuracy of the facts certified therein, the institution of the Member State to which you are posted must ask the competent institution for clarification and, where appropriate, for withdrawal of the document. The latter institution shall reconsider the grounds for issuing the document and, if necessary, withdraw it. If the institutions cannot agree on the validity of the document, they must seek agreement by entering into a dialogue and conciliation procedure (see the relevant keyword).

Pre-retirement benefits are benefits provided from a specified age to workers who have reduced, ceased or suspended their remunerative activities until the age at which they qualify for an old-age pension or an early retirement pension, the receipt of which is not conditional upon the beneficiary being available to the employment services of the competent State.

Pre-retirement benefits are neither old-age pensions nor unemployment benefits, even though they bear resemblance to both. They should not be confused with early retirement (or early old-age) benefits, i.e. benefits provided before the normal pension entitlement age is reached, usually at a lower rate than the normal old-age pension, and which either continues to be provided once the said age is reached or is replaced by another old-age pension. Such benefits, which are as a rule administered and paid by the pension institution, constitute old-age pensions for the purposes of the regulation.

Moreover, pre-retirement benefits should be distinguished from unemployment benefits, notably in that the grant of the latter is generally contingent upon the unemployed person registering as a jobseeker, being available to the employment services and accepting suitable work, and that unemployment benefits are essentially of temporary duration. The difference, however, is not always easy to make, especially as the Court of Justice has ruled that the exemption of such requirements does not necessarily rule out the classification of a benefit as an unemployment benefit for the purposes of the coordination regulation.

Pre-retirement benefits are included in the scope of the current regulation. Nevertheless, the practical relevance of this inclusion is rather limited, as the regulation only applies to statutory schemes (see the keywords material scope, legislation) and the bulk of national pre-retirement schemes are established through collective agreements.

No, you will not. As (statutory) pre-retirement benefits are in the material scope of the regulation, the principle of export of benefits (see the relevant keyword) or waiving of residence clauses applies. Your benefit cannot be withdrawn, suspended, reduced or otherwise modified on account of the fact that you no longer reside in the territory of the State paying the benefit.

 

No, you cannot. As derogation from the general rule, the principle of aggregation of periods does not apply to pre-retirement benefits. Nevertheless, the competent State might still be obliged, on the basis of Article 45 TFEU (free movement of workers), to take the periods of employment accomplished in the State of residence into consideration for deciding upon your right to pre-retirement benefit. It could be deducted from the case law of the Court of Justice that national legislation which fails to do so constitutes a prohibited restriction of the free movement of workers, unless objective justification.