Resolution of the Council and the Representatives of the Governments of the Member States, meeting within the Council of 22 April 1999 on a Code of Conduct for improved cooperation between authorities of the Member States concerning the combating of transnational social security benefit and contribution fraud and undeclared work, and concerning the transnational hiring-out of workers
Date: 1999-04-22
Institutions: Council of the European Union, Representatives of the Governments of the Member States
Subjects: fraud, intergovernmental cooperation (EU), labour mobility, moonlighting, social-security benefit

6.5.1999

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Official Journal of the European Communities

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I

(Information)

COUNCIL

RESOLUTION OF THE COUNCIL AND THE REPRESENTATIVES OF THE GOVERNMENTS OF
THE MEMBER STATES, MEETING WITHIN THE COUNCIL

of 22 April 1999

on a Code of Conduct for improved cooperation between authorities of the Member States
concerning the combating of transnational social security benefit and contribution fraud and
undeclared work, and concerning the transnational hiring-out of workers

(1999/C 125/01)

THE COUNCIL OF THE EUROPEAN UNION AND THE REPRESEN-
TATIVES OF THE GOVERNMENTS OF THE MEMBER STATES,
MEETING WITHIN THE COUNCIL,

1. CONSIDERING that cooperation between the Member States
issues should be
concerning transnational employment
improved,
in order to avoid negative consequences for
the protection of workers and for the functioning of the
labour market,

to employed persons,

securtiy schemes
self-employed
persons and to members of their families moving within
the Community (1), including relevant decisions and recom-
mendations by the Administrative Commission on Social
Security for migrant workers, and in respect of
trans-
national posting of workers by Directive 96/71/EC of the
European Parliament and of the Council of 16 December
1996 concerning the posting of workers in the framework
of the provision of services (2),

information will have positive

2. RECOGNISING that an improved cooperation and exchange
on the
in

of
employment situation and the protection of workers,
particular in the following areas:

effects

(cid:151) the combating of transnational social security benefit
and contribution fraud (hereinafter referred to as (cid:145)social
security fraud(cid:146)),

(cid:151) the combating of undeclared work, and

(cid:151) the transnational hiring-out of workers,

3. RECALLING that in its Communication on undeclared work
the Commission called for coordinated action at European
Union level to combat undeclared work,

4. RECOGNISING that, as a first step, it is desirable that the
cooperation
emphasis be placed on ensuring better
between Member States
security
fraud, in combating undeclared work and in the field of
the transnational hiring-out of workers,

in combating social

6. CONSIDERING also that existing structures and procedures
transnational cooperation and in
context of Article 4 of Directive

in the

for

offer a means
particular
96/71/EC,

7. CONSIDERING that

in areas which fall outside these
provisions it is desirable to encourage improved bilateral
cooperation and exchange of information between Member
States in the areas covered by this Resolution by means of
a non-binding Code of Conduct, using existing structures
and procedures,

8. CONSIDERING the importance of the social security services
and, where they exist and have the relevant competence, of
the labour inspection services of the Member States for the
implementation of this Code of Conduct,

the Court of

9. RECALLING that in its ruling of 17 December 1981 (Case
the European
279/80, WEBB)
Communities held that Article 59 of the Treaty establishing
the European Community does not preclude a Member
State which requires
the provision of
agencies
manpower to hold a licence from requiring a provider of
services established in another Member State and pursuing

Justice of

for

5. RECALLING that some provision is made for cooperation
between authroities in respect of social security benefits
and contributions
in Council Regulation (EEC) No
1408/71 of 14 June 1971 on the application of social

(1) OJ L 149, 5.7.1971, p. 2. Regulation as last amended by Regulation

(EC) No 307/1999 (OJ L 38, 12.2.1999, p. 1).

(2) OJ L 18, 21.1.1997, p. 1.

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6.5.1999

for

that

in the

licences and in granting them,

the first Member State to
activities on the territory of
comply with that condition even if he holds a licence
issued by the State in which he is established, provided,
first place when considering
however,
applications
the
Member State in which the service is provided makes no
distinction based on the nationality of the provider of the
services or his place of establishment, and, in the second
place, that it takes into account the evidence and guar-
antees already produced by the provider of the services
for the pursuit of his activities in the Member State in
which he is established,

10. RECOGNISING the importance of protecting the funda-
mental right to privacy with respect to the processing of
personal data, as guaranteed by Directive 95/46/EC of the
European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the
processing of personal data and on the free movement of
such data (1), and by Article 84(5) of Regulation (EEC) No
1408/71,

11. RECALLING that this Code of Conduct represents a political
commitment and therefore does not affect the rights, obli-
gations and responsibilities of the Member States and of
the European Community, including existing bilateral and
multilateral arrangements on cooperation between the
authorities or bodies of the Member States,

(b) (cid:145)undeclared work(cid:146) shall mean any paid activities that
are lawful as regards their nature, but not declared in
conformity with national
In any
case,
this definition must not be more restrictive
than the legislation in force in each Member State;

law and practice.

(c) (cid:145)transnational hiring-out of workers(cid:146) shall mean the
hiring-out of workers by an employer in a Member
State for the purpose of providing services to a user
in another Member State with continuation of the
employment relationship between the workers and
the employer;
this Code of Conduct shall not be
understood as allowing the hiring-out of workers in
Member States where this is not permitted by national
law.

B. SPECIFIC ARRANGEMENTS
ERATION AND ASSISTANCE

FOR ADMINISTRATIVE COOP-

law and practice,

the following procedures,

1. Member States are invited to take the following steps and
in accordance with
adopt
cooperation
national
between the competent bodies
in combating social
security fraud and undeclared work, and in verifying
trans-
the requirements and conditions
whether
national hiring-out of workers are fulfilled:

to improve

for

HEREBY ADOPT THIS RESOLUTION:

(a) direct communication between competent bodies in

the framework of cooperation;

THE MEMBER STATES are invited to observe, in accordance with
national law and practice, the following Code of Conduct for
the Member
improved cooperation between authorities of
States
social
security benefit and contribution fraud and undeclared work,
and concerning the transnational hiring-out of workers:

concerning the

combating of

transnational

A. OBJECTIVE AND SCOPE OF THE CODE OF CONDUCT

least

1. The objective of this Code of Conduct is, in cases where
at
to improve
two Member States are involved,
cooperation between the competent authorities and insti-
tutions ((cid:145)bodies(cid:146)) of
the Member States in combating
in combating undeclared work,
social security fraud,
and in the field of transnational hiring-out of workers.

2. For the purpose of this Code af Conduct:

(a) (cid:145)social security fraud(cid:146) shall mean any act or omission
in order to obtain or receive social security
to act,
benefit or to avoid obligations to pay social security
contributions, contrary to the law of a Member State;

(1) OJ L 281, 23.11.1995, p. 31.

liaison offices in the
(b) the designation of national
Member States in order
to facilitate cooperation,
and their notification to the other Member States
and to the Commission; no new structures need to
be set up for this purpose;

(c) the forwarding of any request for cooperation to the
competent body of a Member State; the requesting
body of the other Member State shall be informed
thereof;

(d) the reciprocal provision of administrative assistance
the Member
the supply of

competent bodies of
between the
States,
in particular in the form of
information and transmission of documents.

to

encourage

cooperation

2. In respect of data transmission, the Member States are
their
invited
competent bodies, consisting in particular in replying to
reasoned requests from bodies in other Member States for
information on social security benefits and contributions,
presumed undeclared work, and transnational hiring-out
of workers.

between

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shall

the Member States
In all cases of data transmission,
and
national
involved
Community laws and legislation providing for
the
protection of the right to privacy with respect to the
processing of personal data.

relevant

apply

all

3. In respect of verification of certificates, when the matter
in accordance with
is open to doubt, Member States,
law and practice, are encouraged to provide
national
mutual administrative assistance to each other in the
verification of the authenticity of certificates relating to
circumstances which are relevant to areas covered by this
Code of Conduct.

4. In respect of the transmission of documents:

(a) documents relating to cases of social security fraud,
undeclared work and transnational hiring-out of
workers may be transmitted by mail;

(b) the body which has transmitted a document by mail
is invited to communicate to the requesting body a
certificate of transmission or an acknowledgement of
receipt personally signed by the addressee and indi-
cating the place and date of receipt.

C. FOLLOW(cid:150)UP OF THE RESOLUTION

Member States are invited to keep the Commission informed
on measures taken in implementing this Resolution.