Guide for Mobile European Workers

Transcription

1 Guide for Mobile European Workers CES CONFEDERATION EUROPEENNE DES SYNDICATS

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3 Guide for Mobile European Workers Bart Vanpoucke FGTB & Ger Essers FNV-Bruxelles CONFEDERATION European Trade EUROPEENNE Union Confederation DES SYNDICATS (ETUC) (CES) With the financial support of the European Commission

4 Guide for Mobile European Worker Introduction Part I: Legislation and regulations The EEC Treaty The free movement of workers: Regulation 1612/ a. The right of EEA citizens to take up employment b. The right of non-eea citizens (third country nationals) to take up employment c. The right of residents of the new Member States to take up employment The coordination of social security: Regulation 1408/71 & Regulation 883/ a. General b. Rules for determining the applicable social security legislation c. The right to export benefits d. Aggregation of insurance periods e. Coordination of calculation methods for benefits Cross-border employment law a. General b. Convention on Contractual Obligations c. Directive regarding the posting of workers 96/71/EC d. Competent labour court: Reg. 44/ Coordination of taxation: double taxation treaties a. General b. State of employment principle c. Conditional retention of State of residence principle d. Wage splitting e. Taxation of pensions and social benefits f. Specific rules for frontier workers g. Lack of coordination between social security and taxation payments h. Methods of avoiding double taxation i. To conclude: the trade union view Supplementary pensions Right of residence a. General b. Right of residence for up to three months c. Right of residence for more than three months d. Right of permanent residence e. Right of residence after the end of employment f. Social advantages & social assistance

5 PART II : Mobile workers Posted workers a. General b. Social security c. Taxation d. Employment law Jobseekers a. General b. Finding employment across borders: EURES c. Job-seeking while retaining national unemployment benefit d. Right of residence while seeking work e. Right of residence during periods of work f. Guarantees of unemployment benefit after a period of work g. Guaranties to medical insurance h. Practical hints Cross-border workers a. General b. Employment law and labour legislation c. Social security d. Taxation Multinational workers a. General b. Social security c. Taxation d. Employment legislation e. Examples Migrant workers a. General b. Working regulations and right to stay c. Social security d. Tax and contributions due on foreign pensions PART III Sources of information

6 Introduction The principle of the free movement of persons applies within the European Union and the European Economic Area. For the European worker, this means that he has the right to move to another Member State to work or to look for a job. In doing so, he can expect greater freedom of movement and better protection than other workers who are not European citizens. Nonetheless, mobile workers run into a very complex legal framework. The European legislation and regulations are, despite their size, relatively modest in their intentions. The often very different national laws and regulations in Member States remain to a great extent in place. The aim is to establish a number of basic rights in this varied landscape, and, in a number of areas, to coordinate the differing legislative frameworks. There is no intention to harmonise and/or standardise these laws. The practical effect for the mobile worker is that his rights and obligations are not solely guaranteed by European legislation and regulation. These are also determined by national legislation in his country or countries of residence and/or work. In one area which is important for mobile workers, Europe has little impact: taxation. As yet there is a complete lack of European coordination. So the hundreds of bilateral taxation treaties designed to prevent double taxation and mutually agreed between Member States remain in full force. In Part I, a number of important European treaties, regulations and directives are explained. We also consider the underlying principles of the OECD model treaty to prevent double taxation, on which almost all bilateral double taxation treaties are based. The application of all this in practical cross-border employment situations are further discussed in Part II (chapters 8 to 12). The first edition appeared in This revised edition is from March

7 Part I Legislation and regulations Chapter 1. The EEC Treaty Chapter 2. Free movement of workers: Regulation 1612/68 Chapter 3. Coordination of social security: regulation 1408/71 & Regulation 883/04 Chapter 4. applicable employment law: Convention on Contractual Obligations Chapter 5. Coordination of taxation: double taxation treaties Chapter 6. Supplementary pensions Chapter 7. right of residence 7

8 1. The EEC Treaty The EEC Treaty sets out a number of fundamental basic rights for European citizens. For cross-border or migrant workers the most important articles in the Treaty are: Article 12 Within the scope of this Treaty, and without prejudice to the special provisions it contains, any discrimination on the grounds of nationality is prohibited. Article Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby. Article Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect. Article Freedom of movement for workers shall be secured within the Community. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: a) to accept offers of employment actually made; b) to move freely within the territory of Member States for this purpose; c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. 4. The provisions of this Article shall not apply to employment in the public service. Article 42 The Council shall, acting in accordance with the procedure referred to in Article 251, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants: a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries; b) payment of benefits to persons resident in the territories of Member States. Article 293 Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals: the protection of persons and the enjoyment and protection of rights under the same conditions as those accorded by each State to its own nationals,.. the abolition of double taxation within the Community 8

9 The rights set out in the EEC Treaty are further developed, inter alia, in the EEC Regulation 1612/68 on the free movement of workers within the European Union, Regulation 1408/71 on the coordination of social security, the Regulation on the right of residence, etc. 2. The free movement of workers: Regulation 1612/68 a. The right of EEA citizens to take up employment European Regulation 1612/68, which governs the rights of migrant or cross-border workers and their families, is based on the prohibition of discrimination on the grounds of nationality under Articles 12 and 39, paragraph 2 of the EEC Treaty. As a condition for the application of Regulation 1612/68, the worker must be a citizen of one of the Member States of the European Economic Area (EEA= the Member States of the European Union plus Liechtenstein, Norway and Iceland). An supplementary agreement has been concluded with Switzerland. Article 39 of the EEC Treaty guarantees the free movement of workers, which means that every EEA citizen may work in more or less every sector. An exception is made for the public sector, restricting this right. This only concerns government services, such as the police or the judiciary, whether or not directly participating in the exercise of public authority and those functions extending to the protection of the general interests of the state or public bodies. The European Regulation 1612/68 guarantees the equal treatment of EEA workers in the Member States in relation to: taking up an activity as an employed person (Article 1); negotiating and concluding contracts of employment (Article 2); labour market access (Article 3), including any quantitative restrictions (Article 4); access to the services of employment offices (Article 5); conditions for engagement and recruitment (Article 6). Article 7 of Regulation 1612/68 is of particular importance. This article governs non-discrimination relating to: labour conditions and conditions of engagement; social and tax benefits; the right to training, rehabilitation and retraining; the provisions of collective and individual labour agreements. 9

10 Article 7 of Regulation 1612/68: 1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment; 2. He shall enjoy the same social and tax advantages as national workers. 3. He shall also, by virtue of the same right and under the same conditions as national workers, have access to training in vocational schools and retraining centres. 4. Any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment, employment, remuneration and other conditions of work or dismissal shall be null and void in so far as it lays down or authorises discriminatory conditions in respect of workers who are nationals of the other Member States. This important Article 7 thus ensures that the migrant and frontier worker is entitled to the same social and tax advantages as national workers. Social and tax advantages include: study finance for children, redundancy payments on dismissal, non-contributory continuation of company pensions in the event of unemployment, tax credits, maternity allowances (birth grant), access to collective private health insurance, tax rebates etc. Social benefits must not be confused with statutory social security payments. The coordination of statutory social security is governed by Regulation 1408/71 (see Chapter 3). Examples : A Swedish family moves to Brussels. Both parents take up paid employment in Belgium. On the birth of a child, they claim Belgian maternity allowance (birth grant). This may not be refused on the ground of non-belgian nationality. Maternity allowances are a social advantage (under Article 7, paragraph 2 of Regulation 1612/68). A German family lives in Maastricht; the father is in paid employment in Belgium. On the birth of a child the family is entitled to Belgian maternity allowances. Belgium may not require the family to live in Belgium. If the father is self-employed in Belgium, there is no entitlement to maternity allowances, because Article 7, paragraph 2 of Regulation 1612/68 only applies to employees and not to the self-employed (Leclere judgment C-43/99). A French student lives in the Netherlands to follow higher vocational education. She works two days a week in paid employment. The student is entitled, because she is in employment, to claim a supplementary Dutch student grant (Raulin judgment C-57/89). Another type of example (Article 7, paragraph 4 of Regulation 1612/68): A Greek doctor goes to work in Germany, after working in a comparable post in Greece. Under the German collective labour agreement employees, including doctors, are entitled to promotion to a higher salary scale after a number of years service in German hospitals. The Court of Justice found that the (comparable) years of service in Greece must be counted and treated equally with years of service in Germany (Schöning-Kougebetopoulou judgment C-15/96). 10

11 Access to trade union organisations and the exercise of trade union rights are governed by Article 8. Article 8 of Regulation 1612/68: 1. A worker who is a national of a Member State and who is employed in the territory of another Member State shall enjoy equality of treatment as regards membership of trade unions and the exercise of rights attaching thereto, including the right to vote; he may be excluded from taking part in the management of bodies governed by public law and from holding an office governed by public law. Furthermore, he shall have the right of eligibility for workers representative bodies in the undertaking. The provisions of this Article shall not affect laws or regulations in certain Member States which grant more extensive rights to workers coming from the other Member States. The provisions of this Article shall not affect laws or regulations in certain Member States which grant more extensive rights to workers coming from the other Member States. 1. As a result of the introduction of the new Residence Directive 2004/38/EC, Articles 10 and 11 of Regulation 1612/68 were removed. b. The right of non-eea citizens (third country nationals) to take up employment Employed persons who are nationals of one of the Member States of the EEA (and Switzerland) have an automatic right to work in another Member State. Employed persons who are not citizens of a Member State (or Switzerland) - third country nationals - do not have this right to go and work in another Member State. They need a work permit. In the event that an EEA worker is married to a non- EEA citizen (third country national) and goes to live and work in another Member, the spouse also has the right to take up paid employment in the host country (State of residence). Until recently, his/her right to take up employment in the State of residence were guaranteed by Article 11 of Regulation 1612/68. Now they are assured by Article 23 of the new Residence Directive 2004/38/EC 1. Article 23 of Directive 2004/38/EC Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or be self-employed there. Examples : A Finnish employer recruits an Italian worker. He is married to an Argentinian woman. Both spouses are automatically entitled to reside and take up employment in Finland - under Article 1 of Regulation 1612/68 for the EU citizen, and under Article 23 of Directive 2004/38/EC for his spouse. Therefore no work permit is necessary for the non-eea citizen. A Croatian nurse living in Croatia - a country which has not yet joined the European Union - does not automatically have the right to work in Austria. A work permit is necessary for this. Even if the Croatian nurse is married to a German man, who is working as a cross-border worker in Austria but living in Croatia, she is not allowed to work in Austria. If the couple moves to Austria, there is no need for a work permit any more. A construction company based in Belgium employs Moroccan workers on a permanent basis and temporarily posts them to France. The company is not obliged to apply for a work permit from the French authorities (on the grounds of Articles 49 and 50 (free movement of services) of the EEC Treaty (Vander Elst judgment C-43/93 and judgment in Case C 445/03, Commission v Luxembourg). 11

12 An Israeli ballerina lives in Amsterdam (NL) and works in Antwerp (B). Because she is not an EEA citizen, she may only work if she has a work permit. She is entitled to Belgian child allowances (social security payments) under Regulation 1408/71 on the coordination of social security. She has no entitlement to Belgian maternity allowances (social advantage) under Article 7, paragraph 2 of Regulation 1612/68. She is entitled to child allowances but not maternity allowances because third country nationals are covered by the scope of the social security coordinating Regulation 1408/71, but not that governing the free movement of workers, Regulation 1612/68. c. The right of residents of the new Member States to take up employment There were two important enlargements to the European Union in recent years. The EU grew from a club of 15 into one of 25 with the accession to the Union on 1 May 2004 of ten new Member States (Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia - in the following called the 2004 accession countries). Then, on 1 January 2007, another two new Member States (Bulgaria and Romania - in the following called the 2007 accession countries) joined us, bringing the total number of members to 27. In the case of each enlargement, the old and new Member States have agreed on transitional arrangements. This allows the right to free movement of workers, a politically sensitive issue, to be introduced gradually. The result of this is essentially that the original system, under which residents of the new Member States needed a work permit to work in an old Member State, may still be retained for a time desired. However, no transitional arrangements were made for Cyprus or Malta. Their residents had the right to work in all the old Member States immediately on their accession in Residents of the other 2004 accession countries and the 2007 accession countries, however - unless they are nationals of one of the old Member States - will have their right to free access to the labour market in an EU-15 Member State (in the case of the 2004 accession countries apart from Cyprus and Malta) or EU-25 Member State (in the case of the 2007 accession countries) restricted for a time yet. It should be noted that if old Member State A applies restrictive measures to the residents of new Member State B, this State will have the same right in respect of residents of Member State A (= reciprocity). The intention is to give the Member States the chance, over a maximum period of 7 years, to make a gradual transfer from the original nationally controlled permit system to the completely open labour market system under EU Regulation 1612/68. Those Member States that wish to make use of these transitional provisions are obliged to make efforts to extend access policies in respect of their labour markets. Furthermore, they may not diminish existing rights. There is also a rule of precedence that states that persons from a new Member State should be given precedence over persons from non- Member States when applying for vacancies open to foreigners. The transitional arrangements will have three phases, spread over 7 years. In each successive phase, there is less scope for national policy and a greater duty of accountability on those Member States which wish to persist with the permit system. 12

13 Phase 1 => 01/05/ /04/2006 for the 2004 accession countries, and 01/01/ /12/2008 for the 2007 accession countries: During the first two years after accession, the old Member States may apply national regulations to the access of workers from the new Member States, rather than the EU regulations on free movement. Every old Member State may opt on a voluntary basis, though, to choose to apply the EU regulations at the time of accession. Phase 2 => 01/05/ /04/2009 for the 2004 accession countries, and 01/01/ /12/2011 for the 2007 accession countries: At the end of the first phase, the European Commission will assess the transitional rules. Every Member State that is applying the transitional regulations must then declare whether or not they intend to extend the transitional period for a maximum of three more years. If not, there will be no further need for work permits in that Member State. The Free movement of workers regulation will then apply. In this event the Member State may take further voluntary measures for certain regions or professions, or in the case of unexpected problems in the labour market. Phase 3 => 01/05/ /04/2011 for the 2004 accession countries, and 01/01/ /12/2013 for the 2007 accession countries: After the second phase of three years the Member States which have not yet done so will again be asked to open up their labour markets fully. Only if they can demonstrate serious distortion, or the threat of serious distortion, in the labour market may they extend the work permit system for a maximum of two further years. In the case of the 2004 accession countries, no Member State may continue to operate the work permit system as of 01/05/2011 and Regulation 1612/68 will enter fully into force at that time with no further restrictions throughout the EU-25 countries. The same will apply throughout the EU-27 as of 01/01/2014 in the case of the 2007 accession countries. Only Ireland, Sweden and the United Kingdom opened their labour markets to citizens of the 2004 accession countries from the start. Finland, Greece, Italy, Portugal and Spain joined them as the second phase began. Belgium, Denmark, France, Luxembourg and the Netherlands indicated that they would make use of the possibilities offered to them by the second phase, but at the same time put in place a more flexible permit procedure, covering the whole labour market (in Denmark) or specific industries and professions where there was a need for workers (in Belgium, France, Luxembourg and the Netherlands). Austria and Germany have decided to maintain all the restrictions. In fact, they announced already in 2004 that, depending on their labour market situation, they would make full or partial use of the 7-year transitional period. The 2004 accession countries (including Cyprus and Malta) allowed free movement of workers from other Member States from the start. Only Hungary, Poland and Slovenia decided to apply the reciprocity principle to residents of those EU-15 Member States that were themselves applying restrictions. Since the start of the second phase, only Hungary has continued with this policy. Poland and Slovenia have now completely opened their labour markets. In the case of the 2007 accession countries, we are currently only in the first phase of the transitional period. It was not yet completely clear as the final editorial touches were being made to this guide, what positions the various Member States would take. Nevertheless it can be stated - subject to the appropriate reservations - that the Cypriot, Estonian, Finnish, Latvian, Lithuanian, Polish, Slovakian, Slovenian and Swedish labour markets have been opened to residents of Bulgaria and Romania with immediate effect and without any restrictions being applied. 13

14 In France, Hungary and Italy, a work permit is still required, but has become easier to acquire. In Austria, Belgium, Denmark, Germany, Greece, Ireland, Luxembourg, Malta, the Netherlands, Portugal, Spain and the United Kingdom, the intention seems to be to keep to the original national work permit policy for the time being. As this guide went to press, it was still unclear whether Bulgaria and Romania would apply the reciprocity principle to the EU-25 Member States that were applying restrictions. Denmark, Germany and Austria will operate a more restrictive access policy. The transitional arrangements only apply to the free movement of workers. The free movement of services - including the posting of workers - will apply from the first day of accession, as will the free movement of self-employed persons, students, pensioners, tourists, etc. Only in Austria and Germany will there be a special protection clause under which secondment from the new Member States can also be restricted. It covers both the 2004 and the 2007 accession countries. This possibility will only apply to a limited number of services, such as construction and industrial cleaning, and may only be used in the event of severe distortions in the sectors concerned. Anyone who is working in an old Member State before 1 May 2004, and who has a work permit for a minimum of twelve months, may automatically continue to work in that Member State. Their family members who had legal access to the labour market in a Member State on the date of accession will also retain this right. If the family reunion takes place after the accession date, the family members will have access to the labour market in that Member State when they have been resident for eighteen months or from the third year after accession, depending on which comes first. In short, anyone who wants to make use of their right to go to work in another Member State during the transitional period must take into account the exact situation in the country where they wish to work. The transitional period is designed to prevent mass migration on a scale that would distort the labour market. It is not intended to prevent all movement. 14

15 3. The coordination of social security: Regulation 1408/71 & Regulation 883/04 a. General The European Regulation 1408/71 on the application of social security schemes within the Community governs the rights of migrant and cross-border workers and their families. The coordinating regulation 1408/71 prevents workers and their families who make use of the right to free movement from losing their acquired social security rights. The practical implementation of this coordination is set out in the implementing regulation 574/72. 2 These determining rules also apply in Regulation 883/04 (Articles 12 to 16). In the foreseeable future (2008/2009?), coordinating Regulation 1408/71 will be replaced by Regulation 883/04. Regulation 883/04 will come into effect once the relevant implementing regulation has been approved by the European Parliament. A proposal for an implementing regulation has been put forward by the European Commission (COM(2006) 16). Regulation 1408/71 only applies to workers having the nationality of one of the Member States of the European Economic Area (EEA = The European Union, plus Liechtenstein, Norway and Iceland). As of 1 July 2002 the regulation also applies to Switzerland. From 1 June 2003 it was also extended to non-eu citizens ( third country nationals ) legally resident in one of the Member States (except Denmark). Regulation 1408/71 only coordinates social security systems. It does not affect supplementary, extralegal social insurance schemes (company pensions, private health insurance, supplementary sickness and invalidity insurance etc.) The most important coordinating principles of Regulation 1408/71 are: a. the determination of a single applicable social security legislation, to avoid the conflict of laws; b. the obligation to export payments such as family allowance, sickness, invalidity, retirement pensions and death benefits; c. the aggregation of insurance periods in the different Member States; d. the coordination of calculation methods for payments. b. Rules for determining the applicable social security legislation To prevent migrant or cross-border workers being subject to no social security legislation, or being subject to two or more such legislations simultaneously, determining rules were introduced in Regulation 1408/71. These determining rules - in Articles 13 to 17 - establish which social legislation is applicable under given circumstances. These rules are binding in nature, and allow no choice. They are also exclusive, in that a worker can only be subject to the social legislation of a single Member State (Article 13). In general the principle of country of work applies (the lex loci laboris) 2. There are a limited number of exceptions to these basic principles, for example, in the event that his employer posts a worker for a short period to another Member State. In some cases there is also an 15

16 3 Regulation 883/04 strengthens exclusivity. It will be impossible under any circumstances to be covered by social security in two Member States at the same time. In addition, Regulation 883/04 will extend the posting period from 12 to 24 months. 4 Article 11, paragraph 2 a of Regulation 883/04 5 Article 12, paragraph 1 of Regulation 883/04 6 Article 13, paragraph 1 a of Regulation 883/04 7 Article 13, paragraph 1 b of Regulation 883/04 8 Regulation 883/2004 eliminates the possibility of a person being covered by two social security regimes. In the example above, the person involved is covered by social security in the Netherlands for all his activities - including those in Belgium as a self-employed person. 9 art. 16 du R. 883/ Articles 11 to 15 of Regulation 883/04 exception to the country of work principle if the worker is employed simultaneously in more than one Member State. Moreover, despite the principle of exclusivity, double social security coverage may still occur in a very specific situation (a person performing work in both paid employment and as a selfemployed person at the same time in States of employment having separate social security regimes for the two professional categories) 3. Examples: A resident of Portugal works in Spain, but returns to Portugal at least once a week. The employee is a frontier worker. He is subject to the social security system of the country in which he works, Spain (Reg. 1408/71, Article 13 paragraph 2 a) 4. A Swedish company posts its personnel manager to Denmark for twelve months. Since he is on secondment, the employee remains subject to Swedish social security (1408/71 Article 14 paragraph 1 b) 5. A resident of Italy works for a French company in both France and Italy. He is subject to the social security of a single Member State, in this case Italy, the country where he both lives and works. The French employer must accordingly make social security contributions in Italy (Reg. 1408/71 Article 14 paragraph 2 b i) 6. A resident of Austria works as a maintenance mechanic for a German company. This maintenance mechanic works in Italy and Switzerland. The employee is subject to the social security legislation of a single Member State, in this case Germany, where his employer is based (Reg. 1408/71, art. 14, paragraph 2 b ii) 7. A resident of Belgium works as a self-employed person in Belgium and in paid employment in the Netherlands. Exceptionally, this person is insured as an employed person in the Netherlands and simultaneously as a self-employed person in Belgium (the split subjection governed by Annex VII of Reg. 1408/71). Such a regulation also applies to a number of other member States 8. In a number of very exceptional cases, there may be exemption from the rules of applicable legislation set out under Reg. 1408/71 Articles 13 to 16. This is governed under Article 17, which states: Article 17 Reg. 1408/71 9 : Two or more Member States or the competent authorities of those States may, by common agreement, provide for exceptions to the provisions of Articles 13 to 16 in the interest of certain workers or categories of workers

17 c. The right to export benefits In many Member States the right to benefits, or their payment, expires when the worker is no longer resident in that Member State. On return to the country of origin, or removal to another Member State, acquired benefit rights are thus lost. This forms a severe hindrance to the free movement of workers. European Regulation 1408/71 establishes a rule which states that benefits for parenthood, sickness, invalidity, old age and death must continue to be paid to entitled persons who live in another Member State or return to their country of origin. This obligation is not absolute. Assistance benefits, for example, cannot be exported. The provisions only apply to unemployment benefits for a limited time (maximum 3 months) (Reg. 1408/71, Article 69) 11. The European Regulation 1408/71 determines how a sick worker who is entitled to sickness benefits or continued wage payments during sickness but domiciled in another Member State shall be regulated. There are also rules which prevent the payment of double child allowance or no child allowance (overlapping entitlement). 11 Article 64 of Regulation 883/04 12 A specific chapter (9) and an annex (X) are incorporated in Regulation 883/ Article 65 paragraph 2, first sentence of Regulation 883/04 Examples : French statutory retirement, death and invalidity benefits are automatically exportable. This does not apply to assistance benefits from the Fonds National de Solidarité (Law of 30 June 1956) or benefits for disabled adults (French Law of 30 June 1975). Italian pensions (and other payments) for deaf mutes, Irish assistance for the unemployed (Social Welfare Consolidation Act 1993), and, for example, the Danish housing payments to pensioners, are not exportable to another Member States, because these benefits are not based on premiums or contributions (Regulation 1408/71 Article 10 bis and Annex II bis) 12. A Portuguese frontier worker - living in Portugal - who has worked throughout his entire working life in Spain receives Portuguese unemployment benefits if he is completely unemployed (residence principle, Reg. 1408/71 Article 71 paragraph 1 a) ii) 13. This principle also applies to a Spanish worker who moves to Portugal and continues to work in Spain. A single income family living in the Netherlands, the father of which is in paid employment in Germany, has a priority claim on German child allowances. German child benefit is exportable. There is no requirement that the children should grow up in Germany (Reg. 1408/71 Article 74). Because the Dutch child benefit system is based on residence, there is also a right to additional Dutch child allowance payments if these are higher than those paid in Germany. The mother, if she does not work in the Netherlands, may also have a claim (a derived right) to German maternity benefits (Hoever judgment C-245/94 and Zacher judgment C-312/94). If the mother works in the Netherlands, she has the right to German maternity benefits if she satisfies the German requirements. 17

18 14 All these provisions have been brought together and incorporated in a general article (Article 6) in the new Regulation 883/04. Article 6 of Regulation 883/04: Aggregation of periods Unless otherwise provided for by this regulation, the competent institution of a Member State whose legislation makes: the acquisition, retention, duration or recovery of the right to benefits, the coverage by legislation, or the access to or the exemption from compulsory, optional continued or voluntary insurance, conditional upon the completion of periods of insurance, employment, self-employment or residence shall, to the extent necessary, take into account periods of insurance, employment, self-employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation which it applies. 15 This principle is thus incorporated in the general Article 6 of Regulation 883/ Article 61 of Regulation 883/04 17 Article 52 of Regulation 883/04 d. Aggregation of insurance periods In many national legislations the right to a benefit, and its duration and size, are dependent on the condition that the applicant has had social insurance for a certain period and that his social security contributions have been paid. In many systems waiting times are imposed or standard requirements set. Such conditions are very detrimental to migrant and cross-border workers. In transferring from one social security system to another, they can be repeatedly faced afresh with waiting periods and/or standard requirements. The coordinating regulation 1408/71 therefore sets out provisions which state that insurance waiting periods satisfied in another Member State should be accumulated for establishing the right to a benefit ( aggregation rules ) 14. Communications between Member State regarding satisfied insurance periods take place by means of E-forms. Examples : In Belgium six months social insurance are required before sickness benefit can be paid. An Irish worker, who moves to Belgium to work and falls sick after three months, is entitled to Belgian sick benefit if he can show using form E104 (Irl) that he has previously been insured for at least three months in Ireland (Reg. 1408/71 Article 18) 15. A resident of Greece has worked for five years in Greece. He then moves to France. After three months in France he becomes unemployed. To qualify for unemployment benefit in France a worker must have had social insurance for at least 182 days in a 22-month period. Accumulating insurance periods and treating them alike enables the Greek worker to claim French unemployment benefit if he can produce form E301 (Gr) (Regulation 1408/71 Article 67) 16. A Finnish worker has worked in Germany for 4 years. In the German pension system there is a 5-year waiting period. If the Finnish worker has had social insurance for less than 5 years, he has no entitlement to a German pension on the basis of his German contributions. If he was previously insured for a long period in Finland, and can prove it with a form E205, he will be entitled to a German retirement pension based on aggregating and treating equally his Finnish and German insurance periods (Article 44 of Regulation 1408/71) 17. This is known as the statutory pension. e. Coordination of calculation methods for benefits Articles 13 to 17 of the coordinating Regulation 1408/71 18 govern where the cross-border worker has social insurance. This prevents the worker from having double insurance, or none. But this does not solve all the problems. There can, for example, be problems in the payment of child benefits if both parents are subject to the legislation of different Member States, because one works in the state of residence and the other works in another Member State. 18 Articles 12 to 16 of Regulation 883/04 18

19 Examples : The family lives in Portugal. One of the parents is a frontier worker in Spain, the other works in Portugal. The question is which Member State is liable for child benefit payments: the family s place of domicile, or the country in which one of the parents works. Or should the family s country of residence (Portugal) pay the benefit as a matter of priority, with the country of work supplementing the payment where necessary? The family lives in Maastricht (the Netherlands). The father is in paid employment in Germany and the mother works in Belgium. The question is which of the three Member States should pay child benefit. How much each Member State should pay is also regulated. The Court of Justice reached a binding decision in the Danner case (C-167/88). Situations of this nature are resolved by the coordinating regulation 1408/71 in combination with the implementing order 574/ Chapter 8 of Regulation 883/04 20 In the new Regulation 883/04, this single pension method only applies if Spain and France are included in Annex VI. As this, however, is not the case, the pro-rata method applies. In coordinating family benefit systems, account is taken of the fact that various types of child benefit systems exist, (employees insurance, residents insurance, and even insurance for the self-employed). The coordinating Regulation 1408/71 determines which Member State must take precedence in paying family benefits and how to avoid an aggregation of child benefit payments (chapter 7 of Reg 1408/71) 19. Aggregation can also occur in the case of invalidity benefit. In a good many Member States invalidity insurance is risk insurance (e.g. the Netherlands, Belgium, Ireland, France, the United Kingdom and Spain). That means that the value of the invalidity benefit is independent of the length of the insurance period. The other Member States have acquired rights systems. Examples : A migrant worker lives and works for one year in Spain (risk system). He previously worked for 15 years in France (risk system). In the event of invalidity this migrant worker, regardless of his insurance history, is only entitled to a full Spanish invalidity pension. Under Regulation 1408/71, he has a claim to a Spanish invalidity benefit exactly as if he had always been insured in Spain 20. A migrant worker lives and works for one year in Spain (risk system). He had previously worked for 15 years in Austria (acquired rights system). In the event of invalidity this migrant worker, regardless of his insurance history, is still entitled to a full Spanish invalidity pension. Because he had previously been insured under an acquired rights system, there will also be a claim to an Austrian invalidity pension. If this is also paid it will be deducted from the Spanish invalidity pension (anti-aggregation). If the worker was not insured against incapacity to work under the Austrian social laws, he is entitled to a full Spanish invalidity pension. Coordination in the event of invalidity is complicated. Account must be taken of the substantial difference between invalidity schemes. A distinction is made between risk systems and acquired rights systems. For the way in which they are coordinated, the insurance situation in which the worker finds himself at the point at which he is incapacitated plays a decisive role. A distinction is made between a worker who was most recently insured in an acquired rights system, and a worker who was most recently insured under a risk system. Coordination is designed so as not to lose acquired rights. It does not really resolve the problem of the often considerable mutual differences between invalidity systems. It can happen that a migrant or 19

20 frontier worker is declared fully incapacitated in one Member State and simultaneously is regarded as not incapacitated, or only partially so, in the other Member State. This lack of harmonisation cannot be resolved by coordination. Special coordination rules have also been devised for old age and survivors pensions. For a more thorough and detailed description of all the coordination rules, see chapters 10 and Cross-border employment law a. General In the case of cross-border work, the question is which employment law (collective agreement) applies. Before answering this question, it is important to establish what sort of cross-border work is involved. In a number of situations the Rome Convention on the law applicable to contractual obligations (Convention on Contractual Obligations of 19 June 1980) applies. The Convention applies to international labour agreements. This is the case if an employer from a given Member State causes his employee to work in one or more other Member States; for example, if a German company causes an employee living in France to work in Luxembourg, France and Belgium; or if a Greek undertaking seconds an employee to Spain for 2 years. The Convention also applies in principle to an employee who works in another Member State for an employer established there (e.g. frontier worker). There is, however, no question of cross-border domicile. In this event it is almost always agreed to apply the employment law and conditions (collective agreement) of the country of work (lex locis laboris). The Convention has been reworked as a European regulation (Rome I Regulation) on the law applicable to contractual obligations (COM(2005) 650 final). It is not yet certain when this will come into effect (2008?). 20

21 b. Convention on Contractual Obligations b.1. Applicable law As a general rule the Convention on Contractual Obligations states that a labour agreement is governed by the law selected by the parties (Article 3 of the Convention on Contractual Obligations). No further conditions are imposed on the jurisdiction chosen; any employment law system can in principle be selected. Choice of law by the parties, Article 3, paragraph 1 of the Convention on Contractual Obligations: A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or a part only of the contract 21. Examples : A Swedish firm engages a German-resident maintenance mechanic to work in Germany. The parties may choose which law will govern the contract. In practice the choice will be restricted to the German or Swedish employment law. Since the employee has social insurance and pays tax in Germany, the pragmatic solution is to opt for German employment law. A Swedish undertaking engages an employee domiciled in Luxembourg to carry out paid employment in France and Belgium. In practice there is a choice of the Swedish, French, Luxembourg or Belgian labour laws. Under the social security Regulation 1408/71 Swedish social security legislation is applicable. If the employee works fewer than 183 days in France and Belgium, he will be taxed in his country of domicile (Luxembourg). So there will be no salary split applied. In this event - because of the connection with social security - Swedish employment law can be chosen. If the employee also works in his place of residence (Luxembourg), he is insured under the Luxembourg social insurance scheme and it is more logical to opt for Luxembourg employment law. The Swedish undertaking posts one of its Swedish employees to England for one year. The employee remains covered by Swedish social insurance. He is taxed in England under the Swedish- English double taxation treaty. It is convenient, given the temporary nature of this employment situation, to continue to apply Swedish employment law and/or labour conditions. The employee will afterwards return to Sweden or he may then be posted to another Member State. If no choice of jurisdiction is made, the contract is governed under Article 6, paragraph 2 of the Convention on Contractual Obligations: Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with Article 3, be governed: (a) by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; or b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country. (Note: this applies to both a) and b)) Proposal in Rome I for an Article 3: Freedom of choice (COM(2005) 650 final) 1. Without prejudice to Articles 5, 6 and 7, a contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract behaviour of the parties or the circumstances of the case. If the parties have agreed to confer jurisdiction on one or more courts or tribunals of a Member State to hear and determine disputes that have arisen or may arise out of the contract, they shall also be presumed to have chosen the law of that Member State. By their choice the parties can select the law applicable to the whole or a part only of the contract. 22 Proposal in Rome I for an Article 6: Individual employment contracts (COM(2005) 650 final) A contract of employment shall, in the absence of choice in accordance with Article 3, be governed: (a) by the law of the country in or from which the employee habitually carries out his work in performance of the contract. The place of performance shall not be deemed to have changed if he is temporarily employed in another country. Work carried out in another country shall be regarded as temporary if the employee 21