WRITTEN QUESTION E-1480/98 by Bartho Pronk (PPE) and Ria Oomen-Ruijten (PPE) to the Commission (13 May 1998)

Subject: Industrial accident insurance under Regulation 1408/71

I have received a complaint from the Netherlands-Germany Building Export Foundation to the effect that Dutch building firms which have posted workers to Germany are having to pay premiums in respect of industrial accident insurance (Unfallversicherung) both in the Netherlands and in Germany. This is very expensive, particularly for small companies.

1. Does the Commission consider that this double payment is contrary to European law, and in particular Regulation 1408/71? ((OJ L 149, 5.7.1971, p. 2. ))

If so, does the Commission plan to take any action against it?

2. Is the Commission aware that similar complaints have been raised in other Member States?

Answer given by Mr Flynn on behalf of the Commission (22 June 1998)

1. According to the information provided by the Honourable Members, it appears that the competent occupational insurance institution in Germany refuses to acknowledge that the workers concerned have been posted to Germany in accordance with Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community. Under Article 14(1) of this Regulation, a worker posted by an undertaking to another Member State remains subject to the legislation of the first Member State, provided that the anticipated duration of the work does not exceed 12 months. However, the competent institution in Germany does not accept form E 101 issued by the competent institution in the Netherlands as proof that workers will remain subject to social security legislation in the Netherlands and remain obliged to pay contributions to the Netherlands scheme. The German institution seems to believe that Article 14(1) cannot be applied because of the fact that the undertaking posting the workers conducts its business mainly in Germany.

However, the wording of this Article does not explicitly lay down this condition. It seems in fact that activity in the Member State of origin should be genuine and substantial without any other conditions being applied. Furthermore, the Commission takes the view that the competent institution is not authorised to unilaterally refuse to accept form E 101 - which, at first sight, seems to have been issued in accordance with the provisions of Regulation (EEC) No 1408/71 and Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 ((OJ L 74, 27.3.1972. )) - without getting in touch with the institution which issued the form. In this connection, the Commission has notified the German authorities of its position and asked for a response.

2. The Commission would also like to inform the Honourable Members that a similar problem is currently before the Court of Justice for a preliminary ruling (Case C-202/97 Fitzwilliam). This case involves a refusal on the part of a competent institution in the Netherlands to accept form E 101 issued by an Irish institution in connection with the posting of Irish agricultural workers to the Netherlands. The reason given for the refusal was that the Fitzwilliam firm's principal place of activity was the Netherlands.