The Rules within Regulation 883/2004 for Determining the Applicable Legislation
| Date | 01 March 2009 |
| Author | Danny Pieters,Paul Schoukens |
| DOI | 10.1177/138826270901100104 |
| Published date | 01 March 2009 |
| Subject Matter | Article |
European Jour nal of Social Sec urity, Volume 11 (2009), Nos. 1–2 81
THE RULES WITHIN REGULATION
883/2004 FOR DETERMINING THE
APPLICABLE LEGISLATION
P S and D P*
Abstract
is article will outline the changes brought about by Regulation 883/2004 to
the rules for determining which EU Member State’s social security legislation
is applicable to individuals under a variety of cross-border situations (Title II of
regulation). We will rst describe the current rules for determining the competent
State. Next, we will give an overview of the new rules. In a third section, we will
discuss whether the new regulation really simpli es and modernises the rules for
determining the legislation applicable. We will do so by analysing some situations
that were considered problematic under the old regulation. e main question will
be whether Regulation 883/2004 brings the ex pected improvements. Finally, we will
give some concluding remarks.
Keywords: designation rules; Title II coordination regulation; lex loci laboris vs. lex
loci domicilii; posting; working simultaneously in di erent states; electronic form; tax
vs. social security contribution
1. THE PRESENT RULES FOR DETERMINING THE
LEGISL ATION APPLICABLE
1.1. GENERAL RULE: THE LE X LOCI LABORIS
In Articles 13–17 of Regulation 1408/71, the fundamental rules are found for
determining wh ich Member State’s so cial security legislation is applic able to workers.
* Paul Shoukens and Danny P ieters are Professors of So cial Law at the Cathol ic University of Leuven.
Address: Inst itute of Social L aw, Tiensestraat 43, B-30 00 Leuven, Belg ium; e-mail: pau l.schoukens@
law.kuleuven.ac.b e and danny.pieters@law.kuleuven .ac.be. Danny Pieter s is also Secretar y-General
of the European I nstitute of Social S ecurity.
Paul Schoukens a nd Danny Pieters
82 Intersentia
ese rules guara ntee that neither dou ble social securit y protection nor loopholes in
protection occur. e basic rule is th at on ly one State is the competent one, which in
principle is the State where a person is working (the lex l oci laboris).
e rules for determining the applicable legislation have both an exclusive
and a binding e ect.1 An exclusive e ect means that persons to whom Regulation
1408/71 applies are subject to the legislation of a single Member St ate only. Hence , the
possibility of socia l security s chemes of non-competent countries being simu ltaneously
applicable (on the basis of national law) is excluded. Moreover, the designated social
sec urit y syst em is t o be ap plied d espit e any t errit oria lity condit ions o f that syste m (the
‘binding e ect’). e State determined as the competent one has to cover that pers on,
even if this would not be the case according to its own rules on the territorial scope
of its coverage.
However, there are many speci c provisions that deviate from the lex loci labor is
principle (Articles 14 to 17 of Regulation 1408/71). Among them, the most important
are the provisions for posting and the provisions speci cally designed for the
situation where a person works simultaneously in two or more States. Other special
provisions exist for employees of diplomatic missions, the personnel of international
transportation companies and the personnel of the European Community itself.
Fin all y, Art icle 17 al lows t he ad min ist rati ons of Memb er St ates t o ma ke ar ran gemen ts
that may deviate from the genera l rules laid down in the Regul ation, on the condition
that they are in the worker’s interest. In what follows we wil l mainly focus on posting,
the speci c r ules for the performance of multiple simultaneous professional ac tivities,
and the rules for determi ning the applicable legislation for persons who are no longer
professional ly active.
1.2. POSTING
On the basis of the posting provisions, which are applicable to both employed and
self-employed persons, it is possible to send workers for a (brief) period to another
Member State in order to accomplish some work, while keeping them insured under
the social secu rity system of the country of origin.
1 ECJ 9 June 1964, Nonnenmacher, case 92/63, [1964] ECR 281, ECJ 5 December 1967, Van der Vecht,
case 19/67, [1967] ECR 345, ECJ 5 May 1977, Perenboom, case 102/76, [1977] ECR, 815, ECJ 12 June
1986, Te n Ho ld er, cas e 302/84, [1986] ECR 1821 and ECJ 10 July 1986, Luyten, ca se 60/85, [1986] ECR
2365. See R. Cornelis sen, 25 years of Regula tion (EEC) No 1408/71, its achievements a nd its limits, in
European Commission and National Social Security O ce Sweden, European conference: 25 years
of Regulation 1408/71, Stock holm, 1997, 33–34.
e Rules Within R egulation 883/2004 for De termining the Appl icable Legislation
European Jour nal of Social Sec urity, Volume 11 (2009), Nos. 1–2 83
1.2.1. Conditions for posting
According to Article 14(1)(a) a person normally attached to an undertaking (i.e. his
or her employer) who is sent to another State to perform work in that State for that
undertaki ng remains socially insured in t he country from which he has been sent. In
principle, the person cannot be s ent for a period longer than 12 months. Moreover, he
should not be sent to replace another person who has completed his term of posting.
A main condition of the Article regards the duration of posting. In other words,
posting is possible only for a per iod of, in principle, 12 months. However, if the duration
of the work extends beyond the origi nal period of 12 months, owing to unforeseeable
circumstances, t he social security legislation of the rst Member State shall continue
to apply until the completion of such work. A condition for th is is that the competent
authority of the Member State in whose terr itory the person is posted gives its consent
(Art icle 14(1)(b)). e maximum period for such prolongation is another term of 12
months. e di erence between this and the rst part of the posting period, prov ided
for under Article 14(1)(a), is that the Member State to which t he worker is posted has
to be asked for permission for the prolonged posti ng period.
Another condition is that the posted worker cannot be sent to replace a previous
posted worker. Hence, it is not allowed to set up a chain of posted workers for the
same activities abroad. Many loopholes still exist in this provision. Is it possible, for
instance, to send the same worker again, a er some ti me, to the same place to which
he was previously posted? In the Regulation, strictly speaking, nothing prevents an
employer from doing this. But, from which moment onwards c an the second posting
take place in order to not be considered a continuation of the rst posting period?
Countries appear to apply various periods for this.2 Another question is whether
chain posting also covers the situation in which an employee is posted to the same
rm agai n, but for a nother occupation or job.
irdly, there is a condition that the posted worker should already have been
socially insured before a posting takes place. Article 14 stipulates that the employed
perso n ‘shall continue t o be subje ct to the legislat ion’ of th e Member St ate from w hich
he has been sent. However, as the Court of Justice decided, it is possible for a company
to hire a worker who is sent out immediately to anot her Member State.3 Both cases in
which this was decided dealt with interim work. is led to t he question of whether
the possibility to send out workers im mediately was to be applied strictly, i.e. only to
interim work. e Court did not seem to r ule on this question in the a rmative, as it
also applied the sa me ruling in a case where the u ndertaking was not an i nterim post.4
2 See on this issue, for example: P. Donders (200 2) Current practice in posti ng according to Regulati on
1408 /71, Utrecht : BMT, 35–39.
3 See ECJ 17 December 1970, Manpower, case 35/70, [1970] ECR 1251, and ECJ 10 February 200 0,
Fitzwilliam, case C-202/97, [2000] ECR I-883.
4 ECJ 9 November 2000, Plum, cas e C-404/98, [2000] EC R I-9379.
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