On Thursday 16 January, the Polish Presidency of the EU Council relaunched work on the revision of Regulation 883/2004 on the coordination of social security systems, which has been on the table since 2016, with a questionnaire for Member States aimed at taking stock of the current situation.
It takes as its starting point the latest compromises of the Spanish Presidency of the EU Council (see EUROPE 13317/17).
In this note seen by Agence Europe, which will be discussed on 30 January in a working party, Warsaw recalls that the Member States had twice come close to an agreement on this issue, in 2021 and then in 2023, under the Slovenian and Spanish Presidencies, and seeks to know whether positions have evolved on the various sticking points, such as the applicable legislation (prior notification) or the rules for paying unemployment benefits to frontier workers.
At the end of the questionnaire, the Polish Presidency of the EU Council also asked them whether the option of ‘splitting’ the dossier, which consists of validating the chapters on which there is already consensus, could once again be a way out. It therefore proposes to look again at a partial reform, leaving aside the two most sensitive points (unemployment and applicable legislation) or just the applicable legislation aspect.
The Belgian Presidency of the EU Council had vigorously defended this split and received relatively strong support from the Member States, Warsaw recalls in its note, which therefore does not seem to be abandoning this option either.
But the European Parliament, led by Gabrielle Bischoff (S&D, German), has so far opposed it (see EUROPE 13342/17).
The questionnaire first asks the Member States about ‘applicable legislation’ and pluriactivity. To determine a company’s registered office or place of business, the Spanish compromise proposal provided for a number of factors to be taken into account. The non-exhaustive list of indicative criteria for the assessment was set out in the recitals (the company’s turnover, the number of employees, the number of hours worked, the place where the company uses offices or where general meetings are held, the habitual nature of the business, etc.). Warsaw would like to know what the delegations think now.
With regard to prior authorisations (the obligation for employers to notify the authority of the country of activity of postings of workers), the Polish Presidency recalls that Madrid had maintained, as a general rule, the obligation to notify the competent institution of each posting to another Member State before it begins, but maintained the exemptions from the notification obligation for business trips and activities lasting no more than 3 consecutive days within 30 consecutive days.
However, this second exemption would not apply to the construction sector, for which prior notification would remain mandatory, regardless of the duration of the posting.
On this point, some countries are understood to have changed their position since 2023, such as France, which is said to have abandoned its requirement to maintain prior notification of postings, including for journeys of less than 3 days in the construction sector. This is not longer thought to be a red line for Paris.
Rules for unemployment. The Polish Presidency also wants to know if there is any additional flexibility regarding the period of affiliation required to switch jurisdiction and ensure that unemployment benefits, after a certain period, are paid by the country of activity and not the country of residence of the unemployed worker.
The main challenge was to strike a balance between countries posting large numbers of workers and those receiving them, anxious not to see their unemployment costs soar. The aim was to strike a balance “between ensuring sufficiently long insurance period for the Member State paying the unemployment benefit, while providing extended export periods for unemployment benefits to frontier and other cross-border workers” in order to make mobility and posting even more attractive.
“To achieve this balance, the Spanish Presidency suggested basing negotiations with the Parliament on an uninterrupted affiliation period of 25 consecutive weeks”, the note recalls.
It had also proposed to extend the duration of benefit payments. “If an unemployed person has completed a continuous period of at least 24 months in the Member State where they were last employed, but chooses to seek work in the Member State of residence instead, their entitlement to unemployment benefits is extended to 10 months”.
Warsaw would like to know whether Member States can go further, “such as 20, 22 or 24 weeks”. The Presidency would also like delegations to provide “data and estimation of costs to support” their position. (Original version in French by Solenn Paulic)