Social Security Coordination
General remarks:
Guiding principle: persons to whom the Regulations apply are subject to the legislation of a single MS
As a general rule -> the legislation of the MS where the activity is carried out applies (lex loci laboris)
o Any other person (ie non active) is subject to the legislation of the MS of residence (lex
domicilii)
Important to determine the ‘residence’ of non-active persons
Exceptions -> in instances of ‘posting of workers’ and where a person is ‘working in two or more MS’
(and certain categories of workers such as civil servants) the legislation other than the one of the
actual place of employment applies.
o Important to determine the ‘residence’ in case work is pursued in two or more MS
Regulatory framework:
Regulation 883/2004 -> lays out the rules for determining which MS’ legislation is applicable (Arts.
11-16, 63-65, 71-72, 87-91)
Regulation 987/2009 -> implementing provisions of Reg. 883/2004 (Arts. 14-21)
Decision No A2 -> interpretation of Article 12 Reg. 883/2004
Regulation 1231/2010 -> (Art. 1)
Decision 1/2012
Regulation 883/2004
STEP 1: scope of application
In order for the Regulation to apply, the scope (personal, objective, territorial) must be met.
I. Personal scope (Art. 2)
Article 2 specifies the persons covered by the Regulation.
Regulation 1231/2010 (Art. 1) -> extends to personal scope to ‘nationals of third
countries’ provided that they are ‘legally resident’ and there is a ‘cross-border
situation’
Decision No 1/2012 -> Reg. 883/2004 also applies to Swiss nationals
II. Objective scope (Art. 3)
Article 3 specifies the matters covered by the Regulation.
III. Territorial scope (Art. 4)
Is the situation within the EU?
Transitional provisions
o According to Art. 87(8), if, as a result of the introduction of the new Regulation, a person would
be subject to the legislation of a Member State other than the one already determined in
accordance with Regulation 1408/71 or in accordance with Regulation 883/2004 as it applied
before 28 June 2012, then the previous decision will continue to apply provided the relevant
situation remains unchanged.
o Conditions:
1. The application of Reg. 883/2004 leads to the application of a legislation other than the one
prescribed under Reg. 1408/71.
2. The relevant situation remained unchanged 1
- As a rule, a new employment, in the meaning of a change of the employer, the
termination of one of the employments or the cross-border change of residence
is always a change of the relevant situation.
3. Time limit 10 years
1
A change in the relevant situation refers to the factual situation of the person concerned or his/her employer which
would have been decisive for the latest determination of the applicable legislation under Regulation 1408/71 or
previous wording of Title II of Regulation 883/2004
, 4. There is a request
If these conditions are met, Reg. 1408/71 will still be applicable.
STEP 2: determination of the legislation applicable
A. Legislation of the place of employment/work (lex loci laboris) – Article 11
o Article 11 generally provides for the application of the legislation of the MS where the activities
are carried out.
First, make reference to Art. 11(1)
- It indicates that ‘persons to whom the Regulation applies shall be subject to the
legislation of a single MS only’
Second, assess whether the lex specialis of Art. 11(3)(b) & (d) (4) apply
- Civil servant, unemployment benefits in accordance to Art. 65, service in the
armed forces
Third, if none of the above apply, apply Art. 11(3)(a) -> lex loci laboris
B. Legislation of the place of residence – Article 11(2)(c) & (e)
Fourth, in case of non-active persons -> apply Art. 11(3)(c) & (e) -> lex domicilii2
- ‘Residence’ is defined in Art. 1(j) -> ‘place where a person habitually resides’
- Reg. 987/2009 -> Art. 11 provides ‘elements to determine residence’ -> assess!
C. Posting of workers – Article 1234
I. Employees
5 conditions for Article 12 to apply
1. Employer normally carries out its activities in the posting state
o Reg. 987/2009: Art. 14(2) normally carrying out activities refers to
‘substantial activities other than purely internal management’
Decision No A2: clarifies what the term ‘substantial activities’
includes. Examine all the criteria characterising the activities
carried on by that employer5
o CASE LAW
2. Direct relationship between worker and employer
o Decision No A2: requires a direct relationship to exists throughout the
whole duration of posting between the worker and the employer
Existence of direct link -> depends on a number of elements 6
2
Make reference to Art. 11(2)
3
Contrary to the general principle of lex loci laboris, in order to encourage the exercise of the freedom of movement
of workers and services, Article 12 enables to maintain the attachment of a worker to the social security scheme of the
Member State in which the undertaking which employs him/her normally operates (the posting State), whenever the
worker concerned is sent by that undertaking to another Member State (the State of employment) for a period of
time which from the outset is limited (a maximum of 24 months), and provided that certain conditions, discussed
below in more detail, continue to apply.
4
§4 Decision No A2 -> prescribes the situations where Art. 12 NEVER APPLIES
5
Including: 1) the place where the undertaking has its registered office and administration, 2) the number of
administrative staff working in the Member State in which it is established and in the other Member State, 3) the
place where posted workers are recruited and the place where the majority of contracts with clients are concluded, 4)
the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, 5) and with its
clients, on the other hand, 6) the turnover during an appropriately typical period in each Member State concerned
and 7) the number of contracts performed in the sending State.
6
Including: 1) responsibility for recruitment, 2) employment contract, 3) 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 (ie recharge of remuneration is NOT relevant)), 4) dismissal, and 5) the authority to
determine the nature of the work.
General remarks:
Guiding principle: persons to whom the Regulations apply are subject to the legislation of a single MS
As a general rule -> the legislation of the MS where the activity is carried out applies (lex loci laboris)
o Any other person (ie non active) is subject to the legislation of the MS of residence (lex
domicilii)
Important to determine the ‘residence’ of non-active persons
Exceptions -> in instances of ‘posting of workers’ and where a person is ‘working in two or more MS’
(and certain categories of workers such as civil servants) the legislation other than the one of the
actual place of employment applies.
o Important to determine the ‘residence’ in case work is pursued in two or more MS
Regulatory framework:
Regulation 883/2004 -> lays out the rules for determining which MS’ legislation is applicable (Arts.
11-16, 63-65, 71-72, 87-91)
Regulation 987/2009 -> implementing provisions of Reg. 883/2004 (Arts. 14-21)
Decision No A2 -> interpretation of Article 12 Reg. 883/2004
Regulation 1231/2010 -> (Art. 1)
Decision 1/2012
Regulation 883/2004
STEP 1: scope of application
In order for the Regulation to apply, the scope (personal, objective, territorial) must be met.
I. Personal scope (Art. 2)
Article 2 specifies the persons covered by the Regulation.
Regulation 1231/2010 (Art. 1) -> extends to personal scope to ‘nationals of third
countries’ provided that they are ‘legally resident’ and there is a ‘cross-border
situation’
Decision No 1/2012 -> Reg. 883/2004 also applies to Swiss nationals
II. Objective scope (Art. 3)
Article 3 specifies the matters covered by the Regulation.
III. Territorial scope (Art. 4)
Is the situation within the EU?
Transitional provisions
o According to Art. 87(8), if, as a result of the introduction of the new Regulation, a person would
be subject to the legislation of a Member State other than the one already determined in
accordance with Regulation 1408/71 or in accordance with Regulation 883/2004 as it applied
before 28 June 2012, then the previous decision will continue to apply provided the relevant
situation remains unchanged.
o Conditions:
1. The application of Reg. 883/2004 leads to the application of a legislation other than the one
prescribed under Reg. 1408/71.
2. The relevant situation remained unchanged 1
- As a rule, a new employment, in the meaning of a change of the employer, the
termination of one of the employments or the cross-border change of residence
is always a change of the relevant situation.
3. Time limit 10 years
1
A change in the relevant situation refers to the factual situation of the person concerned or his/her employer which
would have been decisive for the latest determination of the applicable legislation under Regulation 1408/71 or
previous wording of Title II of Regulation 883/2004
, 4. There is a request
If these conditions are met, Reg. 1408/71 will still be applicable.
STEP 2: determination of the legislation applicable
A. Legislation of the place of employment/work (lex loci laboris) – Article 11
o Article 11 generally provides for the application of the legislation of the MS where the activities
are carried out.
First, make reference to Art. 11(1)
- It indicates that ‘persons to whom the Regulation applies shall be subject to the
legislation of a single MS only’
Second, assess whether the lex specialis of Art. 11(3)(b) & (d) (4) apply
- Civil servant, unemployment benefits in accordance to Art. 65, service in the
armed forces
Third, if none of the above apply, apply Art. 11(3)(a) -> lex loci laboris
B. Legislation of the place of residence – Article 11(2)(c) & (e)
Fourth, in case of non-active persons -> apply Art. 11(3)(c) & (e) -> lex domicilii2
- ‘Residence’ is defined in Art. 1(j) -> ‘place where a person habitually resides’
- Reg. 987/2009 -> Art. 11 provides ‘elements to determine residence’ -> assess!
C. Posting of workers – Article 1234
I. Employees
5 conditions for Article 12 to apply
1. Employer normally carries out its activities in the posting state
o Reg. 987/2009: Art. 14(2) normally carrying out activities refers to
‘substantial activities other than purely internal management’
Decision No A2: clarifies what the term ‘substantial activities’
includes. Examine all the criteria characterising the activities
carried on by that employer5
o CASE LAW
2. Direct relationship between worker and employer
o Decision No A2: requires a direct relationship to exists throughout the
whole duration of posting between the worker and the employer
Existence of direct link -> depends on a number of elements 6
2
Make reference to Art. 11(2)
3
Contrary to the general principle of lex loci laboris, in order to encourage the exercise of the freedom of movement
of workers and services, Article 12 enables to maintain the attachment of a worker to the social security scheme of the
Member State in which the undertaking which employs him/her normally operates (the posting State), whenever the
worker concerned is sent by that undertaking to another Member State (the State of employment) for a period of
time which from the outset is limited (a maximum of 24 months), and provided that certain conditions, discussed
below in more detail, continue to apply.
4
§4 Decision No A2 -> prescribes the situations where Art. 12 NEVER APPLIES
5
Including: 1) the place where the undertaking has its registered office and administration, 2) the number of
administrative staff working in the Member State in which it is established and in the other Member State, 3) the
place where posted workers are recruited and the place where the majority of contracts with clients are concluded, 4)
the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, 5) and with its
clients, on the other hand, 6) the turnover during an appropriately typical period in each Member State concerned
and 7) the number of contracts performed in the sending State.
6
Including: 1) responsibility for recruitment, 2) employment contract, 3) 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 (ie recharge of remuneration is NOT relevant)), 4) dismissal, and 5) the authority to
determine the nature of the work.
