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Obligations in the frame of Social Security Legislation pursuant to the Articles 12, 13, 16, Reg. (EC) No 883/2004

“Quando è possibile il distacco comunitario oltre i 24 mesi” is the article written by Alessandro Arletti and Elisa Storchi, published in the magazine Guida alle Paghe.

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Referring to social security, posting within the European Union is subject to Regulation 883/2004. According to the general principle of the Lex Labor Loci, the worker should be subject to the legislation of the country in which the work is performed. However, there are exceptions to the general principle of territoriality, regulated by Articles 12, 13 and 16 of EC Regulation 883/2004.

Article 12, Regulation (EC) No 883/2004

First of all, it is important to identify and determine the applicable security system: if the posting envisage a maximum duration of 24 months and all the conditions of Article 12 of Regulation (EC) No 883/2004 are fulfilled, the posted worker must be subject to the “social security system of the Member State in which his employer normally carries out his activities (sending State)”. The conditions required by the legislation are:

  • The worker must be employed in a Member State on behalf of an employer;
  • The employer must normally perform his activities in the country of origin and his undertaking must not represent a letterbox company (i.e. a fictitious company created for the sole purpose of performing an activity in a country other than the country of incorporation);
  • The worker is posted by his employer to provide services on his behalf;
  • The expected duration must not exceed 24 months;
  • The worker may not be sent as a replacement to another posted worker.

Posting not exceeding 24 months: Article 16, Regulation (EC) No 883/2004

On the other hand, if the company finds it necessary to extend the posting period beyond the initial deadline, and the period finally exceeds 24 months, there is the possibility of applying an extension, pursuant to Article 16 of Regulation (EC) No 883/2004. The company can send the request for extension to the Regional Institutions of INPS (the National Social Welfare Institution) and the latter has the task and authority to verify and approve the requirements, and then send the application to the competent authority of the country concerned.

Posting for more than 24 months: Article 16, Regulation (EC) No 883/2004

If an initial duration of more than 24 months is envisaged, Article 16 of Regulation (EC) No 883/2004 may be applied from the very beginning.

Posting for more than 24 months: Article 13, Regulation (EC) No 883/2004

With reference to the type of posting which lasts more than 24 months, the application of Article 13 of Regulation (EC) No 883/2004, which concerns workers who perform their activities in two or more Member States, can be considered. This case study covers cases of partial posting, posted workers and the frequent secondment of employees to variable locations with return to their usual place of work.

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