The Swedish Presidency of the Council of the EU will submit on 29 March, in the Social Questions Working Party of the EU Council, new ideas to the Member States on the revision of the EU Regulation on the coordination of social security schemes, which allows for the regulation of the receipt or export of social security benefits from one Member State to another for citizens or posted workers.
It has slightly modified the fields relating to: - pluriactivity (situations in which a person carries out simultaneously or alternately, for the same employer or for different employers, one or more different activities in two or more Member States); - prior notification (of postings); - unemployment benefits paid to cross-border workers. These three points were indeed the main reasons for the failure of the EU Council at the end of 2021 (see EUROPE 13121/23).
After a first working group meeting on the subject in February, the Presidency hopes to obtain sufficient support to then submit the dossier to the Member States’ permanent representatives to the EU.
On applicable legislation and pluriactivity, the aim is to clarify the expression ‘registered office or place of business’ to help the social security institution to determine the legislation applicable to a given person. The Presidency has inserted the phrase “where the undertaking performs genuine activity”, it explains in a note.
The second paragraph specifies that a series of factors and the habitual nature of the activity carried out must be taken into account. But “the non-exhaustive list of exemplary factors, which might be taken into account in the assessment has been moved to a recital to make the non-binding and indicative character of this list clearer”.
The recital thus states that “in determining the location of the registered office or place of business of an undertaking, where a person pursues activity in two or more Member States, a series of factors should be taken into account in the framework of an overall assessment, giving due weight to each of them according to the circumstances of the case and to the habitual nature of the activity, in order to determine where the functions of the central administration are carried out or where the undertaking performs genuine activity. Examples of such factors are the length of time that the undertaking has been established in the Member State, the place where the undertaking uses office space, pays company taxes, the turnover or the place where financial and particularly banking transactions mainly take place”.
For its part, prior notification - which allows the competent institution to be informed of the exercise of an activity in another Member State before the start of that activity in order to determine whether the person employed should be considered as being posted and therefore continue to be covered by the legislation of that Member State - remains in principle compulsory, but an exception is introduced for postings of less than three days (within a period of one month).
“In order not to hinder businesses in their cross-border activity by imposing rules that would lead to excessive administrative burden, the compromise proposal entails two exceptions to the requirement of notification”: business trips and activities of a short duration, for which the employee generally continues to be covered by the legislation of the competent Member State. No certificate will therefore be required.
A possibility to delay the notification by three days “in case of impossibility due to an emergency situation” is also introduced.
On unemployment benefits for cross-border workers and the duration of the export of benefits, the principle of lex loci laboris is strengthened; it specifies that, as a general rule, unemployed persons who have pursued their last activity in a Member State other than their State of residence shall make themselves available to the employment services of the State of last activity and shall be entitled to receive unemployment benefits in accordance with the legislation of that Member State.
Only by way of derogation may the State of residence become the competent State. And this would be “the case when the last activity of the fully unemployed cross-border or frontier worker lasted less than six uninterrupted months”.
The Presidency considers that this period of six uninterrupted months, which was already put forward in the last compromise, constitutes “the centre of gravity between the diverging views of Member States”, which are concerned about both the cost of paying benefits and the potential obstacles to the reintegration of the unemployed into the labour market.
Links to documents: https://aeur.eu/f/5x3 ; https://aeur.eu/f/5x4 ; https://aeur.eu/f/5x5 ; https://aeur.eu/f/5x9 (Original version in French by Solenn Paulic)