Recent Developments in the field of posting of workers

Posting and portable documents Quickly to repeat: A person can be subject to the legislation of one MS at a time If a person is posted to another Member State by an employer who normally carries out activities in the sending MS for less than 24 months and is not sent to replace another posted person, this person continues to be subject to the legislation of the sending MS Portable Document A1 is issued which confirms the insured status of the posted persons. The form has to be accepted by the institution of the receiving MS as long as it has not been withdrawn or declared invalid by the MS in which they were issued. Another situation in which PD A1 is issued is when a person is working in two or more Member States either simultaneously, or alternatively, The same principles apply.

Posting and portable documents 1.51 mln Portable Documents (PD) A1 issued in 2011 Problems that have been reported are a.o.: a) difficulties in finding the competent institution; b) delays in issuing the PD A1; c) wrong application of procedure for issuing PD A1; d) non-recognition of PD A1 or unilateral annulment of PD A1; e) communication problems between competent institutions. Increased number of postings: in 2011 1.51 million persons in EU?EER. Of these 1.21 million relate to postings. EU law procides for certain procedural provisions and requirements that must be fulfillet when a PD A1 is issued. However it is the competence of each MS to apply its national procedures. This also means that MS can take a different approach as regards the administrative requirements, application, verification and issuing mechanisms as well as the follow up. When issuing such a large amount of documents, there is always a risk of making a mistake. However, we saw room for improvement, especially on some issues related to the issuing of the PD A1 on which the Commission has received complaints. Among the problems raised the most common are: Incorrect applicatcation of the EU rules by the competent institutions, which resulted in a lack of insurance or double insurance -delays in issuing the PD A1 - Non-recognition of the PD A1 or unilateral annulment of the PD A1. - Finally lack of proper communication between institutions One of the key factors for an efficient functioning of the EU rules is a close and effective cooperation between the authorities. Institutions shall provide each other with all the necessary data to determine the rights and obligations of persons concerned. Moreover if MS disagree on the legislation that should apply, a diague may hepl to resolve disputes between the MS, possibly leading to the withdrawal of the PD A1.

Working Party of the AC on posting issues Setting out the variety in administrative procedures for issuing the Portable Document A1 Difficulties arising after Portable Document A1 was issued Practices and suggestions for improvement by Member States WE gathered information of the administrative means and the best practces to solve some of the issues mentioned and see if we could achieve some minimm requirements for standardisation, . Standardisation does not mean the establishment of a unique EU-wide application form (which is not advisable because socials security is organized differently in the Member States), but the establishment of minimum requirements in order to ensure that - all relevant conditions for issuing the PD A1 are checked and the documents are issued in the most speedy and accurate way possible. Shall the PD A1 in case of posting and/or multiple employment be issued at a central or local level, per insurance scheme or transversal?   Shall application forms be standardised in particular to assure the correct assessment of the facts? Shall there be a different application form for each situation mentioned in point 3.1 to 3.11 of the PD A1? Shall there be a standardised timing of issuing a PD A1? Shall e-procedures be standardised? Shall first-time applicants be interviewed? Under which conditions? Shall all certificates get a serial number in order to avoid falsifications? Shall direct contact between the applicant and the adjudicating officer be prohibited? Not only looked at issuing PD A1 in cases of posting, but also of cases where persons are working in two or more Member States. There is a specific procedure laid down in Article 16 of Regulation 987/2009 according to which the insitution in the place where the person resides takes a prelliminary decision on the applicable legislation and sends thiis decision to al MS where a person is carrying out an activity. Gathered first experience with the application of tis provision After two months have elapsed, ths decision becomes definitive. Noticed problems with tthe application of this provision gather the available information and to verify the information. Especially if no activities are pursued in the Member State of residence, or the Member State in which the registered office or place of business is located. The relationship between the provisional and final determination of the applicable legislation. On the one hand this period is considered as being too short to make a proper assessment (related to information available) and On the other hand, it has also been signaled in the report that there are no means to push the designated institution in the competent MS to react within a period of 2 months. The procedure is not applied properly or being considered too heavy. Example is mentioned that there is a direct registration with the designated institution of the MS in which employer has registered office or place of business, without the worker of the institution in the State of residence is being informed thereof.

WP of the AC on posting issues June 2014 meeting – main conclusions Elaboration of a non-mandatory standardised set of questions to be clarified before a PD A1 is issued; Simplification of the procedure laid down in Article 16 of Regulation (EC) No 987/2009 in case of activities pursued in two or more Member States; Prevention of replacement of one posted worker by another; Establishment of procedural rules and criteria for the withdrawal of incorrectly issued PD A1 entailing a retroactive change of the applicable legislation; Review of the conciliation procedure; The notion of 'employer'. Outcome of the Working Party: Establish an Ad-Hoc Group that will look into: - the introduction of standardised, non-mandatory application forms for assessing the factual situation of a person - the introduction of the time limit for issuting the forms - explore settting up a central register where decisions on applicable legislation that could be consulted at EU level that will be integrated into the EESSI system. - How to simplify the procedure for determining the applicable legislation in the situation where a person is working in two or more MS Deal with the situation of verirfy replacement of posted worers - If PD A1 was withdrawn after it was issued . - review of efficiency of dialogue and conciliation procedure.