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ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS

DECISION NO 113

OF 28 FEBRUARY 1980

CONCERNING THE APPLICATION OF ARTICLE 14 ( 1 ) ( A ) AND ( 2 ) ( A ) OF COUNCIL REGULATION ( EEC ) NO 1408/71 ON THE LEGISLATION APPLICABLE TO POSTED WORKERS AND REPLACING DECISION NO 110 OF 16 DECEMBER 1977

THE ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS ,

HAVING REGARD TO ARTICLE 81 ( A ) OF COUNCIL REGULATION ( EEC ) NO 1408/71 UNDER WHICH IT IS MADE RESPONSIBLE FOR DEALING WITH ALL QUESTIONS OF INTERPRETATION ARISING FROM THE PROVISIONS OF COUNCIL REGULATION ( EEC ) NO 1408/71 AND ( EEC ) NO 574/72 ,

WHEREAS THE PURPOSE OF THE PROVISIONS OF ARTICLE 14 ( 1 ) ( A ) AND ( 2 ) ( A ) OF REGULATION ( EEC ) NO 1408/71 IS TO AVOID , BOTH IN RESPECT OF WORKERS AND OF EMPLOYERS AND SOCIAL SECURITY INSTITUTIONS , THE ADMINISTRATIVE COMPLICATIONS WHICH WOULD RESULT FROM THE APPLICATION OF THE GENERAL RULE LAID DOWN IN ARTICLE 13 ( 2 ) ( A ) OF REGULATION ( EEC ) NO 1408/71 WHERE THE PERIODS OF EMPLOYMENT ARE OF SHORT DURATION IN A MEMBER STATE OR ON A VESSEL FLYING THE FLAG OF A MEMBER STATE OTHER THAN THE STATE IN WHICH THE UNDERTAKING HAS ITS REGISTERED OFFICE OR A PLACE OF BUSINESS ;

WHEREAS , WITH A VIEW TO SIMPLIFICATION , THE SCOPE OF ARTICLE 14 ( 1 ) ( A ) OR ( 2 ) ( A ) OF THE SAID REGULATION SHOULD BE EXTENDED TO COVER THE CASE OF A WORKER ENGAGED IN THE MEMBER STATE IN WHICH THE UNDERTAKING HAS ITS REGISTERED OFFICE , OR A PLACE OF BUSINESS WITH A VIEW TO A POSTING TO THE TERRITORY OF ANOTHER MEMBER STATE OR TO A VESSEL FLYING THE FLAG OF ANOTHER MEMBER STATE ;

WHEREAS ON THE ONE HAND THE ADMINISTRATIVE COMPLICATIONS THAT ARTICLE 14 ( 1 ) ( A ) IS DESIGNED TO PREVENT , ARISE IN ANY EVENT IF A WORKER , WHO IS ENGAGED BY AN UNDERTAKING ESTABLISHED IN ONE MEMBER STATE WITH A VIEW TO BEING POSTED TO ANOTHER MEMBER STATE , WAS PREVIOUSLY SUBJECT TO THE LEGISLATION OF A THIRD MEMBER STATE OR A NON-MEMBER COUNTRY AND , A FORTIORI , IF HE WAS PREVIOUSLY SUBJECT TO THE LEGISLATION OF THE MEMBER STATE TO WHICH HE IS POSTED ; WHEREAS THE PURPOSE OF ARTICLE 14 ( 1 ) ( A ) WOULD THUS NOT BE FULFILLED ; WHEREAS THE SAME WOULD APPLY MUTATIS MUTANDIS TO ARTICLE 14 ( 2 ) ( A ) ;

WHEREAS , ON THE OTHER HAND , ONE OF THE DECISIVE CRITERIA FOR THE APPLICATION OF ARTICLE 14 ( 1 ) ( A ) AND ( 2 ) ( A ) OF REGULATION ( EEC ) NO 1408/71 IS THE EXISTENCE OF A DIRECT RELATIONSHIP BETWEEN THE UNDERTAKING AND THE WORKER IT ENGAGES , AND IN PARTICULAR THE PAYMENT OF A WAGE AND THE MAINTENANCE OF THE WORKER'S RELATIONSHIP TO THE UNDERTAKING AS AN EMPLOYEE ;

WHEREAS THE PROTECTION OF THE WORKER AND THE LEGAL SECURITY TO WHICH HE AND THE INSTITUTION WITH WHICH HE IS INSURED ARE ENTITLED , REQUIRE FULL GUARANTEES THAT THE DIRECT RELATIONSHIP BE MAINTAINED THROUGHOUT THE PERIOD OF POSTING ; WHEREAS THE FACULTY PROVIDED BY THIS DECISION SHOULD THEREFORE BE LIMITED TO UNDERTAKINGS WHICH NORMALLY CARRY OUT THEIR ACTIVITIES IN THE TERRITORY OF THE MEMBER STATE TO WHOSE LEGISLATION THE WORKER POSTED ELSEWHERE REMAINS SUBJECT ;

WHEREAS SUCH GUARANTEES ARE NO LONGER PROVIDED IF A WORKER POSTED ELSEWHERE IS MADE AVAILABLE TO A THIRD UNDERTAKING ;

WHEREAS THE WORKER AND THE EMPLOYER MUST BE DULY INFORMED OF THE CONDITIONS UNDER WHICH THE POSTED WORKER IS ALLOWED TO REMAIN SUBJECT TO THE LEGISLATION OF THE COUNTRY FROM WHICH HE HAS BEEN POSTED ;

ACTING IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 80 ( 3 ) OF REGULATION ( EEC ) NO 1408/71 ,

HAS DECIDED AS FOLLOWS :

1 . THE PROVISIONS OF ARTICLE 14 ( 1 ) ( A ) OR ( 2 ) ( A ) OF REGULATION ( EEC ) NO 1408/71 SHALL ALSO APPLY TO A WORKER SUBJECT TO THE LEGISLATION OF A MEMBER STATE WHO IS ENGAGED IN THAT MEMBER STATE BY AN UNDERTAKING HAVING A REGISTERED OFFICE OR PLACE OF BUSINESS IN THAT MEMBER STATE , WITH A VIEW TO HIS POSTING EITHER TO THE TERRITORY OF ANOTHER MEMBER STATE OR TO A VESSEL FLYING THE FLAG OF ANOTHER MEMBER STATE , PROVIDED THAT :

( A ) THERE IS A DIRECT RELATIONSHIP BETWEEN THAT UNDERTAKING AND THE WORKER DURING HIS PERIOD OF POSTING ;

( B ) THAT THE UNDERTAKING NORMALLY CARRIES OUT ITS ACTIVITIES IN THE TERRITORY OF THE FIRST MEMBER STATE , THAT IS TO SAY , IN THE CASE OF AN UNDERTAKING WHOSE ACTIVITY CONSISTS IN MAKING STAFF TEMPORARILY AVAILABLE TO OTHER UNDERTAKINGS , THAT IT NORMALLY MAKES STAFF AVAILABLE FOR EMPLOYMENT IN THE TERRITORY OF THE FIRST MEMBER STATE WITH HIRERS ESTABLISHED IN THAT TERRITORY .

2 . THE PROVISIONS OF ARTICLE 14 ( 1 ) ( A ) OR ( 2 ) ( A ) REFERRED TO ABOVE SHALL NO LONGER APPLY IF THE UNDERTAKING TO WHICH THE WORKER HAS BEEN POSTED MAKES THE WORKER AVAILABLE TO ANOTHER UNDERTAKING .

3 . ANY INSTITUTION OF A MEMBER STATE WHICH RECEIVES A REQUEST FOR THE APPLICATION OF THE ABOVEMENTIONED ARTICLE 14 ( 1 ) ( A ) OR ( 2 ) ( A ) IN THE CASES PROVIDED FOR BY THIS DECISION , SHALL DULY INFORM THE UNDERTAKING AND THE WORKER CONCERNED OF THE CONDITIONS UNDER WHICH THE POSTED WORKER MAY CONTINUE TO BE SUBJECT TO THE LEGISLATION OF THE COUNTRY FROM WHICH HE WAS POSTED , IN PARTICULAR THE PROVISIONS OF PARAGRAPH 2 .

4 . THE DECISION WHICH REPLACES DECISION NO 110 OF 16 DECEMBER 1977 SHALL BE PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES . IT SHALL BE APPLICABLE FROM THE FIRST DAY OF THE MONTH FOLLOWING PUBLICATION .

S . BOVA

THE CHAIRMAN OF THE ADMINISTRATIVE COMMISSION FOR THE SOCIAL SECURITY OF MIGRANT WORKERS