• Posting Workers

Brexit: clarifications on the provisions on posting and applicable legislation

working in the UK after brexit

With Circular n°71 of 27.04.2021, the INPS clarifies the provisions on posting and applicable legislation contained in the TCA (Trade and Cooperation Agreement) and in the PSSC (Protocol on Social Security Coordination).

Pending the ratification by the EU of the Trade and Cooperation Agreement (TCA) with the UK, the two parties have agreed to apply the Agreement provisionally. The TCA regulates social security coordination after Brexit through a special protocol – the Protocol on Social Security Coordination (PSSC) – which is valid for 15 years from the entry into force of the Agreement.

The INPS Central Directorate Revenue has clarified in its Circular No. 71 of 27 April 2021 the application practice for the provisions on the posting of workers.

Posting of workers in the PSSC

There are several elements of continuity between the PSSC and Regulation 883/2004. Art. SSC. 11 of the Protocol mirrors Art. 12 of Regulation 883/2004: in addition to providing for posting of workers, Art. SSC. 11 states that the posted worker remains subject to the legislation of his State of origin if the duration of the posting does not exceed 24 months and he is not sent to replace another worker already posted. The PSSC gives the possibility for EU Member States to make use or not of the provisions of Art. 11 – Italy has already expressed his willingness to do so.

the posted worker remains subject to the legislation of his State of origin if the duration of the posting does not exceed 24 months and he is not sent to replace another worker already posted.

Regulation 883/2004 continues to apply to EU workers whose posting to the UK was already in progress on December 31, 2020, as long as this situation does not end. Posting certificates issued with an initial date prior to December 31, 2020 and ending after that date remain valid, as already clarified in INPS Message No. 4805 of 22.12.2020. For such situations, it will be possible, upon expiry of the certificate, to request a new uninterrupted posting, again pursuant to Regulation 883/2004.

The total duration of the uninterrupted posting cannot exceed 24 months, also considering the periods prior to 2021, without prejudice to the possibility of extending the duration of the posting by making use of the derogation under art. 16 of Regulation 883/2004.

With reference to this derogation, we can note one of the differences between the pre-Brexit and the post-Brexit posting regime. The PSSC no longer provides for the possibility of extending the ordinary duration of the posting (24 months), nor the possibility of concluding agreements derogating from the general rules laid down for determining the applicable legislation (see Art. SSC. 10).

The exercise of employed or self-employed activities in two or more States in the PSSC

Art. 12 reproduces the provisions contained in Art. 13 of Regulation 883/2004 but also adds special criteria for the application of the legislation of the United Kingdom (par. 5 and 6). The INPS territorial offices will continue to issue certificates concerning the applicable legislation also in these cases.

Forms and documents on applicable law

The implementing provisions of the above-mentioned articles are contained in Annex SSC-7 (art. SSCI. 13 et seq.; art. SSCI. 75), which re-introduce with some minor changes the regulatory framework of Regulation 987/2009 (art. 14 et seq.). Here too, the new post-Brexit system of rules appears substantially unchanged from that in force for EU countries: the same applies to the obligations of companies.

The employer informs – possibly in advance – the social security institution of the State whose legislation applies pursuant to Art. 14 (as also provided for in Art. 15 of Regulation 987/2009). Art. SSC 16 then provides that the institution of the State whose legislation is applicable issues a certificate of applicable legislation, which indicates the date and conditions. This provision is modelled after Article 19 of Regulation 987/2009 and the certificate of art. SSCI. 16 can be associated to the A1 certificate.

all forms and documents issued by the competent institutions in the format used in the period immediately preceding the entry into force of the PSSC shall remain valid for the purposes of implementing the Protocol itself

Incidentally, Art. SSCI. 75 provides that all forms and documents issued by the competent institutions in the format used in the period immediately preceding the entry into force of the PSSC shall remain valid for the purposes of implementing the Protocol itself, until the bilateral Committee for the coordination of social security orders the conclusion of the transitional period. A1 documents will therefore continue to be used for certification of the legislation applicable during the transitional period.

For postings that began before 31.12.2020 and will end after that date, as already mentioned, the EU legislation will continue to apply and, by consequence, the already issued A1 will continue to apply too.

Subjective and material scope of the PSSC in general

INPS had already clarified the general scope of the PSSC in its Circular no. 53 of 6 April 2021. EU citizens resident in the UK before 1 January 2021 and UK citizens resident in the EU before the same date remain protected by the Withdrawal Agreement (WA) and, consequently, continue to benefit from Regulation 883/2004 and Regulation 987/2009. The TCA and the PSSC apply to cases not covered by the WA and, in some ways, to a wider range of persons than under the previous legislation, namely all “persons, including stateless persons and refugees, who are or have been subject to the legislation of one or more States, as well as their family members and survivors” (Art. SSC. 2), not just EU and UK nationals.

Art. 3 of the Protocol follows its counterpart in Regulation 883/2004 (Art. 3) with regards to the material scope – the only exception being that it does not mention family benefits. For all matters covered by Art. 3, the persons concerned enjoy equal treatment with the nationals of the State whose legislation is applicable (Art. CSS. 5).

For further details, please refer to the full informatives:

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