DECISION No 128 of 17 October 1985 concerning the application of Articles 14 (1) (a) and 14b (1) of Council Regulation (EEC) No 1408/71 on the legislation applicable to posted workers (86/C 141/06)

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 matters of interpretation arising from the provisions of Council Regulations (EEC) No 1408/71 and (EEC) No 574/72,Whereas Decision No 113 of 28 February 1980 should be amended to take account of the provisions of Regulation (EEC) No 1390/81 of 12 May 1981, which entered into force on 1 July 1982;Whereas the purpose of the provisions of Articles 14 (1) (a) and 14b (1) 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) or (2) (c) of the said Regulation where the period of employment is 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 14b (1) of the said Regulation should be extended to cover the case of a worker who is engaged in the Member State in which the undertaking has its registered office or place of business with a view to his being posted to another Member State or to a vessel flying the flag of another Member State;Whereas, on the one hand, the administrative complications which 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 of 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 in the case of Article 14b (1);Whereas, on the other hand, one of the decisive criteria for the application of Article 14 (1) (a) or 14b (1) of the said Regulation 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 possibility provided by this Decision should therefore be restricted to undertakings which normally carry out their activities in the Member State to whose legislation the posted worker remains subject;Whereas such guarantees are no longer provided if a posted worker 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 14b (1) 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 in which the undertaking has its registered office or place of business with a view to his posting either to another Member State or to a vessel flying the flag of another Member State, provided that:(a) there exists a direct relationship between that undertaking and the worker during his period of posting;(b) the undertaking normally carries out its activities in the first Member State, that is so say, in the case of an undertaking whose activity consists in making staff temporarily available to other undertakings, and that it normally makes staff available to hirers established in that State for employment in that State.2. The provisions of Article 14 (1) (a) or 14b (1) above shall cease to 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 aforementioned Article 14 (1) (a) or 14b (1) 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. This Decision, which replaces Decision No 113 of 28 February 1980, shall be published in the Official Journal of the European Communities. It shall apply from the first day of the month following its publication.The Chairmanof the Administrative CommissionG. SCHROEDER