Skip to content Transnational posting represents one of the most common forms of global mobility.
It occurs when an employee is temporarily assigned to work in a country different from their usual place of employment.
This is done while maintaining the employment relationship with the original employer.
How does employee posting work?
The employer arranges the assignment for organizational or operational reasons, while the employee remains part of the structure of the posting company.
What does posting of workers means?
Pursuant to Article 30 of Legislative Decree No. 276 of 10 September 2003, the posting of workers occurs when the employer temporarily relocates one or more employees to another location for the performance of a specific work activity, in order to satisfy a legitimate business interest.
Posting does not create a new employment relationship but modifies the manner of performing work under the original employment contract (see Interpello No. 1/2011).
According to Ministry of Labour Circular No. 3/2004 and Interpello No. 1/2011, the legitimacy requirements are:
- Interest of the posting company: must be specific, relevant, concrete, and persist throughout the posting period. However, it cannot merely consist of providing labor to a third party, which would constitute temporary agency work (see Circular No. 28/2005).
- Temporariness: posting must be temporary. Excessive extension may indicate a stable transfer, resulting in a change of applicable law.
- Predetermined activity: the employee must perform specific tasks that serve the interest of the posting employer. A generic provision of personnel is not permitted.
Failure to comply with these requirements may lead to requalification of the employment relationship and significant legal consequences.
Declarative obligations of the employer
The posting employer must comply with certain formal obligations to ensure the posting’s regularity.
For example, these include requesting the A1 Certificate and notifying the competent authorities of the host country.
These measures ensure proper social security coverage and prevent tax or contribution risks.
Who pays the posted employee’s salary?
Generally, the posting employer continues to pay the salary, although intercompany agreements for cost recharging may be implemented.
Despite the temporary nature and increasing prevalence of transnational posting, additional relevant questions arise:
- Which law governs the employment relationship?
- Which State is competent to tax the income?
- To which social security system must the employee contribute?
- To what extent does the host country’s legislation apply?
This infosheet provides practical guidance to navigate these questions, using a case study as reference.
Practical case
Alessandro, an EU citizen, is employed by a French company and is temporarily posted to Italy for six months.
He continues to work for the French employer and receives remuneration from them.
His presence requires a coordinated assessment of several legal aspects, analyzed in the following sections.
Which laws are relevant in this case?
Multiple legal levels are engaged: international law, European Union law, and the national laws of the countries involved.
Understanding the coordination among these sources is essential to ensure compliance for both the employee and the company.
In this context, regulatory evolution is also relevant.
What is the posted workers directive? The European framework continues to focus on posting rules, based on Directive 96/71/EC, which reinforces the principle of equal pay for equal work and increases reporting and documentation obligations for companies.
Which law governs the employment relationship?
The first step is to identify the governing law of the employment contract.
Pursuant to Regulation (EC) No. 593/2008 (Rome I), in the case of a temporary posting, the contract is generally governed by the law of the country where the employee normally works, in this case French law.
This does not mean that Italian law is irrelevant.
Working in Italy entails the application of mandatory provisions of national labor law.
The situation would significantly change if the posting of workers ceased to be temporary or became a stable presence.
In that case, the center of gravity of the employment relationship would gradually shift towards Italian law.
Professional support is therefore necessary when drafting or reviewing posting agreements.
This ensures operational aspects (workplace, working hours, health and safety) align with applicable laws.
Which State can tax the income?
Alessandro’s stay in Italy requires careful analysis of tax nexus rules.
In transnational contexts, domestic laws must be coordinated with the France-Italy double taxation convention, which allocates taxing rights between the two States.
The length of stay, the actual location of work, and the beneficiary of the work are key elements to determine the taxing State.
Even short or non-working stays may be relevant for overall assessment.
Where should social security contributions be paid?
From a social security perspective, the posting falls within the EU coordinating social security system, in particular Regulation (EC) No. 883/2004.
This regulation does not harmonize national systems but sets criteria to determine the applicable legislation.
For temporary posting, the general principle is continuity with the home country system, provided EU conditions are met.
Without prior assessment, uncertainties may arise regarding proper coverage regarding the posted workers.
Which immigration requirements apply?
Alessandro’s wife, a Norwegian citizen, accompanies him, invoking EU/EEA free movement and residence rules.
Although EU citizenship facilitates mobility, the length and stability of stay may affect legal qualification and required compliance in Italy.
Conclusions
Alessandro’s case demonstrates how transnational posting of workers, even if temporary, simultaneously triggers multiple legal frameworks: labor law, taxation, social security, and international mobility rules.
Without coordinated interpretation of applicable laws, significant risks arise for both the employee and the company in terms of legal and fiscal compliance.
Relying on professionals specialized in Global Mobility allows proper identification of the applicable law, coordination of national and supranational regulations, and mitigation of compliance risks.
A&P Law Firm supports companies in all matters related to international posting through an integrated approach of specialized teams.
If this applies to your case, we invite you to visit our dedicated posting service page and contact us.