Workers moving abroad

The rules set forth in title II "Determination of applicable legislation" of Regulation 883/04 are applicable to the following workers:

As of 01/05/2010, to national workers of the European Union who are posted to European Union countries.
As of 01/01/2011, to workers of any nationality who are posted to European Union countries except for the United Kingdom and Denmark.
As of 01/04/2012, to workers of the European Union and Swiss nationals who are posted to Switzerland.
As of 01/06/2012, to workers of the European Union and the European Economic Area who are posted to these countries (Iceland, Liechtenstein and Norway).
From 01/07/2013 for workers, of any nationality, who relocate to Croatia.

Posted workers. General rules. Article 11 of Regulation 883/04.

Persons to whom the Regulation is applicable shall be subject to the legislation of a single member State.
Persons who receive a cash benefit for or as a result of their activity as an employee or self-employed person, shall be deemed to carry out said activity.
With the exception of the provisions of the special rules:
1. a person who pursues an activity as an employed or self-employed person shall be subject to the legislation of that member State;
2. all civil servants shall be subject to the legislation of the member state to which the administration that employs them is answerable;
An activity as an employed or self-employed person which is normally carried out on board a ship that flies the flag of a member State shall be deemed to be an activity pursued in said member State. Nevertheless, a person who carries out an activity on board a ship that flies the flag of a member State and receives remuneration for this activity from a company or person that has their place of business or registered office in another member State, shall be subject to the legislation of this latter member State, as long as they reside in that Country. The company or person who pays the remuneration shall be considered to be an employer for the purposes of said legislation.
An activity as a flight crew or cabin crew member performing air passenger or freight services shall be deemed to be an activity pursued in the member State where the "home base" is located ("home base" concept: location assigned by the operator to each crew member, from where the crew member normally starts and ends a duty period, or a series of duty periods, and where, under normal conditions, the operator is not responsible for the accommodation of the crew member concerned).

Posted workers. Special rules

PURSUIT OF ACTIVITIES IN A SINGLE MEMBER STATE.- Articles 12.1 and 12.2 of Regulation 883/04 and article 14 of Regulation 987/09.

A person who pursues an activity as an employed person in a member State on behalf of an employer which normally carries out its activities there and who is posted by that employer to another member State to perform work on that employer's behalf shall continue to be subject to the legislation of the first member State, provided that the anticipated duration of such work does not exceed twenty-four months and that he is not sent to replace another person.
The phrase "who normally carries out their activities there" refers to a company that normally carries out substantial activities, other than purely internal management, in the member State in which it is established, taking into account the criteria that characterise the activities carried out by the company. In other words, a criterion to take into account shall be that the company continues to have workers carrying out the company's activity in the Country in which it is established, in addition to workers who are posted to other countries.
A person who normally pursues an activity as a self-employed person in a member State and who is going to carry out a similar activity in another member State shall be subject to the law of the first member State, on the condition that the estimated duration of this activity does not exceed 24 months. The phrase "who normally pursues an activity as a self-employed person" refers to a person who normally carries out substantial activities in the national territory of the member State in which it is established. In particular, a person must have carried out their activity for a certain period of time before the date of their posting to the other country. A minimum period of two months of activity as a self-employed person is required in the country in which it is established.

The term "similar activity" refers to the actual nature of the activity and not to classification of the activity, as an employed or self employed person, which it is assigned in the other member State.

PURSUIT OF ACTIVITIES IN TWO OR MORE MEMBER STATES.- Articles 13.1 and 13.2 of Regulation 883/04 and article 14 of Regulation 987/09.

A person who normally pursues an activity as an employed person in two or more member States shall be subject:
1. the legislation of the member State of residence, if they carry out a substantial part of their activity in said member State, or
2. if he/she does not pursue a substantial part of his/her activity in the member State of residence:
  1. to the legislation of the member State in which the registered office or place of business of the undertaking or employer is situated if he/she is employed by one undertaking or employer; or
  2. to the legislation of the member State in which the registered office or place of business of the undertakings or employers is situated if he/she is employed by two or more undertakings or employers which have their registered office or place of business in only one member State; or
  3. to the legislation of the member State in which the registered office or place of business of the undertaking or employer is situated other than the member State of residence if he/she is employed by two or more undertakings or employers, which have their registered office or place of business in two member States, one of which is the member State of residence; or
  4. to the legislation of the member State of residence if he/she is employed by two or more undertakings or employers, at least two of which have their registered office or place of business in different member States other than the member State of residence.
The phrase "person who normally pursues an activity as an employed person in two or more member States" refers to a person who: a) while maintaining an activity in one member State, simultaneously exercises a separate activity in one or more other member States, irrespective of the duration or nature of that separate activity. b) continuously pursues alternating activities in two or more member States, irrespective of the frequency or regularity of the alternation.
A person who normally works a self-employed person in two or more member States shall be subject:
1. the legislation of the member State of residence, if they carry out a substantial part of their activity in said member State, or
2. the legislation of the member State where the centre of interest of their activities is located, if they do not reside in one of the member States in which they carry out a substantial part of their activity. The centre of interest shall be determined by taking into account the fixed and permanent place of business of the interested party, the habitual nature or duration of the activities or the number of services rendered.
  The phrase "person who normally pursues an activity as a self-employed person in two or more member States" shall refer, in particular, to a person who simultaneously or in alternation pursues one or more separate self-employed activities, irrespective of the nature of those activities, in two or more member States.
  
  With regard to points 1) and 2), a worker shall be considered to carry out "a substantial part of their activity" as a employed or self-employed person in a member State if a quantitatively substantial part of all the activities of the self-employed person are pursued there, without this necessarily being a major part of those activities. The working time or the remuneration shall be taken into account in the case of an employed activity, or the turnover, working time, number of services rendered and/or income, in the case of a self-employed activity. If, based on the above criteria, the total percentage is less than 25%, it means that they do not carry out a substantial part of the activity in the relevant member State.
If a person carries out paid work as an employed person in two or more member States on behalf of an employer established outside the territory of the Union, and if this person resides in a member State without pursuing substantial activity there, they shall be subject to the legislation of the member State of residence.
A person who normally pursues an activity as an employed person and an activity as a self-employed person in different member States shall be subject to the legislation of the member State in which he/she pursues an activity as an employed person or, if he/she pursues such an activity in two or more member States, to the legislation determined in paragraph 1).
A person employed as a civil servant in a member State who pursues an activity as an employed or self-employed person in one or several other member States shall be subject to the legislation of the member State to which the Administration employing them is attached.

Persons referred to in paragraphs 1 to 4 shall be treated, for the purposes of the legislation determined in accordance with these provisions, as though they were pursuing all their activities as employed or self-employed persons and were receiving all their income in the member State concerned.

CONTRACT STAFF OF THE EUROPEAN COMMUNITIES.- Article 15 of Regulation 883/04 and article 17 of Regulation 987/09.

Auxiliary staff of the European Community may opt to be subject to the legislation of the member State where they are employed, subject to the legislation of the member State to which they were last subject, or subject to the legislation of the member State in which they are nationals.

EXCEPTIONS TO ARTICLES 11 TO 15.- Article 16 of Regulation 883/04 and article 18 of Regulation 987/09.

Two or more member States, the competent authorities of these member states or the bodies designated by these authorities may, by common agreement, provide for exceptions to articles 11 to 15 in the interest of certain persons or categories of persons.

Formalities for postings abroad

In general, the application for a posting abroad must be done prior to the start date of the posting.

The request will be made, in every instance, using form TA.300. "Request for information on the applicable Social Security legislation".

The competent Body will issue, where appropriate, the "Certificate of applicable legislation" form A1.

Article 11.3.b. Civil Servants in the General Scheme of the Spanish Social Security System.

Civil servants who are posted in a "temporary transfer" to carry out their activity in another member State, shall continue to be subject to the Spanish social security system. If these postings are to attend conferences, courses or meetings, the form A.1. does not need to be processed.

Jurisdiction: Central Services of the Social Security General Treasury.

Article 11.4. Workers included in the Special Scheme for Sea Workers.
- The company that hires the worker must be Spanish or have their place of business in Spain, irrespective of the flag on the ship.
- Jurisdiction: Provincial Social Security Directorates and Administrative Offices.
Article 12.1. Workers who pursue an activity as an employed person in a single country.

Requirements that must be fulfilled by a Spanish company or worker:
- The worker must have a record, in any scheme of the Spanish Social Security System, of at least one month prior to the date of their posting.
- Holding an employment contract, that is, they must have no other contract with the foreign company.
- The company must continue to normally perform substantial activities in Spain.
- Jurisdiction: Provincial Directorates and Administrative Offices of the Social Security.
Article 12.2. Workers who pursue an activity as a self-employed person in a single country.

Requirements that must be fulfilled by a self-employed worker:
- A record of at least two months in the Spanish Social Security System as a self-employed worker.
- Holding facilities in Spain that enable them to continue with their activity upon their return.
- Jurisdiction: Provincial Directorates and Administrative Offices of the Social Security.

When Articles 12.1 and 12.2 are applicable, the maximum period entered cannot exceed 24 months. If from the start it is anticipated that the posting will exceed 24 months, this posting should be processed at the Central Services of the Social Security General Treasury, in accordance with article 16 of Regulation 883/04 and using the form TA300.

Likewise, irrespective of the duration of the posting, if the worker has a contract with the company to which they are being posted, the application must be processed at the Central Services of the Social Security General Treasury, in accordance with article 16 of Regulation 883/04 and using the form TA300.

When Spanish Social Security legislation is applicable and all or part of the worker´s salary is paid by the company in the country of employment, the full salary received by the worker will be taken into account for the calculation of the contribution basis.

Article 13.1. Workers who normally pursue activities as a employed person in more than one country. This posting shall be authorised for successive 12-month periods, although there is no maximum time limit.
- Spanish legislation will apply to a worker whose habitual residence is in Spain and who carries out a substantial part of their activity in Spain.
- If the worker does not carry out a substantial part of their activity in the country in which they reside, Spanish legislation will apply:
  - If they work exclusively for one or more companies with a registered office in Spain.
  - If they are not resident in Spain but they work for one or more companies with registered offices in Spain as well as for another company or companies with registered offices in their country of residence.
  - If they reside in Spain and are employed by two or more companies, and at least two have registered offices in different member States, other than the state of residence.
Examples of activities to which this article can be applicable:
- International hauliers.
- Artists who go on tour in the different community countries.
- Bullfighters who are resident in Spain when they are contracted by Spanish or foreign impresarios to fight in other community countries.
- Sportsmen and women who take part in sporting competitions held in other member countries.
- Workers who attend Conferences, Conventions and Trade shows.
- Tour guides.
- Jurisdiction: Provincial Directorates and Administrative Offices of the Social Security.
Article 13.2. Workers who normally pursue activities as a self-employed person in more than one country. This posting shall be authorised for successive 12-month periods, although there is no maximum time limit.
- The worker must have their permanent residence in Spain and carry out a significant part of their activity there.
- If they do not reside in Spain, Spanish legislation will apply if the centre of interest of their activities is in Spain.
- Carrying out the same activity in Spain and one or several other member States, which involves constant travelling to those countries.
- Jurisdiction: Provincial Directorates and Administrative Offices of the Social Security.

Article 13.3. Workers who pursue an activity as a employed and self-employed person in different countries.
- If the worker pursues an activity as an employed person in Spain and as a self-employed person in another country, they shall be subject to the legislation of Spanish Social Security, and will have to make Social Security contributions in Spain for their activity as a self-employed person.
- Jurisdiction: Central Services of the Social Security General Treasury.

Article 13.4. A person employed as a civil servant in one member State who at the same time pursues an activity as an employed or self-employed person in another member State.
- If they are considered to be a civil servant in Spain, they shall be subject to the Spanish Social Security System.
- Jurisdiction: Central Services of the Social Security General Treasury.

Article 15. Contract staff of the European Communities may opt to be subject to the legislation of the member State in which they are employed, to the legislation of the member State to which they were last subject or to the legislation of the member State whose nationals they are.
- Jurisdiction: Central Services of the Social Security General Treasury.
Article 16. Exceptions to articles 11 to 15. Two or more member States, the competent authorities of these States or the bodies designated by them may provide for exceptions to articles 11 to 15.
- Although no time limit has legally been established, as a general rule the maximum posting period cannot exceed five years, taking into account those authorised in the initial posting and any previous extensions.
- Should a posting extension of up to a year be necessary, in order to process the request, the company will have to attach a written statement to form TA.300 setting out the reasons justifying the need to stay in that country.
- If the posting is to France the form CLEISS must be fully completed and attached.
- If the posting is to Romania it will be necessary to attach a written statement detailing the activity that will be carried out in this country.
- Jurisdiction: Central Services of the Social Security General Treasury.

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