Organisation and coordination of a network on the EU coordination of social security schemes in EU/EEA/CH training and reporting on European Social Security trESS III Relevant topics on determination of legislation applicable in Lithuania

Pursuance of activities in two or more Member States International transport section. No special rules (provisions) for determination of legislation of applicable. Main rule ( Art of Regulation (EC) No 883/ BR ): A person who normally pursues an activity as an employed person in two or more Member States shall be subject to: (a) the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in that Member State or if he/she is employed by various undertakings or various employers whose registered office or place of business is in different Member States, (b) the legislation of the Member State in which the registered office or place of business of the undertaking or employer employing him/her is situated, if he/she does not pursue a substantial part of his/her activities in the Member State of residence.

International transport section (Art of IR) To determine whether a substantial part of the activities is pursued in a Member State, the following indicative criteria shall betaken into account: (a) in the case of an employed activity, the working time and/or the remuneration In the framework of an overall assessment, a share of less than25 % in respect of the criteria mentioned above shall be an indicator that a substantial part of the activities is not being pursued in the relevant Member State (Art of IR) For the determination of the applicable legislation underparagraphs 8 and 9, the institutions concerned shall take into account the situation projected for the following 12 calendar months.

International transport section Difficulties: How to establish whether the person concerned meets above conditions: working time (what is working time? How to measure (work schedules, vacations, work conditions: loading the goods, obligatory time of rest, holidays, illness, lunch brakes and etc. (how to proof) ; remuneration (only one employer – how to estimate this criteria).

Case of Lithuanian Transport Company The context: retroactively issued certificates E 101 for the company “U” employees working in international transport sector (EU member states) (art. 14(2)(a) of the Regulation (EEC) No 1408/71). competent institution other Member State asked to withdraw these certificates stating that drivers were actually employed with branch or permanent representation of Lithuanian company (art. 14(2)(a)(i) of the Regulation (EEC) No 1408/71).

Case of Lithuanian Transport Company Reasons of the dispute: Treatment of Lithuanian company “U” activity in other Member State: company “U” states that they never had branch or permanent representation in other Member State. all drivers were employed by Lithuanian company and had valid labour contracts. Drivers received their wages from Lithuanian company. Social security contribution and taxes were also paid in Lithuania. Lithuanian company “U” rented the parking in other Member State where the vehicles were temporarily placed. during substantial part of business activity was carried in other Member State where the main profit was generated competent institution of other Member State establishment of the fact that Lithuanian transport company acted as branch or permanent representation in other Member State without formal registration (under its legislation).

Appliance of Art of BR Art (BR): 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.

Appliance of Art of BR Difficulties : how to establish whether the person meets above conditions. persons perform activity as employed person only 1 day per months and the remuneration is about 40 Lt (aprox. 11 Euros). persons are permanent residents of other Member state (their places of residence are in other member state and in some cases is aprox km from Lithuania)

Determination of provisional legislation under art. 16 of regulation 987/2009 Situation: Competent institutions of Poland decide that Lithuanian legislation should be applicable for Polish self-employed residents who have concluded labour contracts with enterprises registered in Lithuania. According to the par. 3 of the art. 16 of Regulation 987/2009 this provisional determination is treated as definitive after two months from the moment when Lithuanian competent institution had been informed about it.

Determination of provisional legislation under art. 16 of regulation 987/2009 Difficulties: no documents and additional information attached; there are many cases when requested documents are not presented ; it is impossible to decide if person’s work in Lithuania conforms to legal requirements without application and other information.

Thank You for Your attention Sandra Krasauskienė The Foreign Benefits Office