The Spanish Presidency of the Council of the European Union presented, on Monday 4 December, new ideas to the Member States for reaching an agreement regarding the regulation on the coordination of social security schemes.
While it plans to meet the European Parliament in a new, possibly conclusive, trilogue next week in Strasbourg, the Spanish authorities have submitted a new compromise package to the Member States which focuses on outstanding issues such as derogations from prior notification of postings of workers, seasonal workers (two points of particular importance to the European Parliament) and the chapter on unemployment benefits for cross-border workers.
The Spanish Presidency is also proposing, once again, to introduce references to the digitalisation of social security procedures. And it puts forward the idea of a revision clause on the issue of prior notification, with the Commission being invited to propose new legislation if the conditions were met for further digitalisation of these prior notification procedures.
The Member States will be asked to vote on this issue at a meeting of their ambassadors to the EU on Friday 8 December.
The main change is in the area of prior notification, with the Spanish Presidency now making it clear that the construction sector, which is the most susceptible to fraud or accidents, will not be exempt from prior notification for postings of less than three days. The Presidency also details the construction sectors covered by this rule.
Thirty days to check accuracy of posting information
The Spanish Presidency acknowledges “that the Commission’s proposal and the general approach of the Council of the EU have not introduced the requirement for mandatory prior notification. However, this is one of Parliament’s priorities and a constant demand throughout the negotiations”, it repeats in a note seen by EUROPE.
Madrid therefore believes that this is an essential element of any compromise that might be accepted by the two co-legislators. “Nevertheless, the Presidency fully understands the concerns expressed by Member States regarding the risk of a disproportionate administrative burden in the case of an inflexible mandatory prior notification rule”, it adds.
The Spanish Presidency therefore proposes to continue working on the basis of compulsory prior notification. However, to avoid creating “a cumbersome system that could lead to non-compliance with the rules, the Presidency is proposing to establish two general exemptions for business travel and for activities lasting no more than three consecutive days in any 30-day period”.
However, with regard to the second general exemption, for activities lasting a maximum of three consecutive days within a period of 30 consecutive days, the Spanish Presidency “proposes that it should not apply to the construction sector, which is particularly exposed to accidents at work”.
The Presidency also proposes “a period of 30 working days during which the competent institution of the Member State whose legislation is applicable shall provide the competent institution of the Member State where the activity is pursued with the information available to it in the event of doubt as to the information provided by the person concerned, the validity of a document or supporting evidence or the accuracy of the facts on which the certificate certifying the applicable social security legislation is based”.
As far as the revision clause is concerned, the Presidency states that the potential benefits of digitalisation cannot be overlooked, but that the tools involved, which are still being developed, make it still speculative. Madrid therefore proposes to introduce a ‘revision clause’ inviting the Commission to propose revising the legislation once these technological tools are operational.
In its annex, the Spanish Presidency also details the construction sectors that would remain subject to this prior notification requirement. All building construction, repair, maintenance, modification or demolition work is covered, in particular excavation, earthworks, painting, cleaning, renovation or demolition work.
For the European Construction Industry Federation (FIEC), however, this measure concerning postings of less than three days remains insufficient. The employers’ organisation maintains that the construction sector should be excluded from the two exceptions to the prior notification requirement, it told EUROPE.
“In fact, a situation in which a worker visits a construction site in another Member State and carries out work there could be considered as a business trip. In this case, there would be no prior notification, which could lead to fraudulent practices”.
Excluding the construction sector from a single exception would therefore create more confusion and situations in which the employer/worker would not know which scheme he/she was in, according to the FIEC.
For some countries, the Commission’s proposal would create serious problems of application, as many high-risk sectors are not subject to prior notification, such as transport. Several countries claim that exceptions to prior notification would make workers in these sectors even more vulnerable to exploitation.
For other countries, for example further east in the EU, Madrid’s proposal to maintain a requirement of 25 weeks’ uninterrupted work in the last country of employment for that country to become responsible for the cross-border worker’s unemployment benefits could also prove too high.
A number of countries will also be vigilant as to the form that this revision clause will take, should this commitment to revise lead them to accept at this stage the principle of a return to stricter prior notification requirements.
EUROPE will continue to follow this story. (Original version in French by Solenn Paulic)