The European Parliament proposal for the amendment of Article 12 Regulation 883/2004, exempts employed persons sent on business trip, from the obligation to obtain a Portable Document A1.
One of the proposed conditions to be met under Article 12 Regulation 883/2004, contains the rule and its exemption : “the competent institution in the Member State where the person concerned normally pursues the activity has been notified about the pursuit of the activity in the other Member State and received a request, prior to the start of the activity for the continued application of its legislation. No such formal request need be made where the activity pursued concerns a business trip” [Art 12.1 (c) new- A8-0386/2018]
Is that provision applicable regardless the number of business trips foreseeable?
The proposal for the amendment of Article 14 Regulation 987/2009 defines the concept of business trip : “ For the purpose of the application of point (c) of Article 12(1) and point (c) of Article 12(2) of the basic Regulation, “business trip” means a temporary activity related to the business interests of the employer, not including the provision of services or the delivery of goods, such as attending internal and external business meetings, attending conferences and seminars, negotiating business deals, undertaking sales or marketing activities, performing internal or client audits, exploring business opportunities, or attending and receiving training.” (A8-0386/2018).
It must be first observed that the enumeration of activities fail under the business trip definition is not exhaustive.
In regard to the concept of “provision of services”, pursuant to Article 57TFEU:
“Services shall be considered to be ‘services’ within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
Services shall in particular include:
- a) activities of an industrial character;
- b) activities of a commercial character;
- c) activities of craftsmen;
- d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals”
We take the view that a business trip fails under Art 57TFEU.
The definition suggested by the EP, makes no reference to national legislations.
The concept of business trip would be an autonomous concept (in reation to the social security coordination regulations)
Where on the one hand, the definition contains a non-exhaustive list of permitted activities, and on the other hand, the exclusion of “provision of services” cannot bring more clarity, only the ECJ’ case law would add to the case.
With simple words, we take the view that the amendment proposed by the EP, will lead to a judicial debate in regard to the concept of “provision of services” and in regard to other (non-listed) activities that qualify as business activities.
A different approach can be considered.
The concept of marginal activity is relevant only for the application of Article 13 Regulation 883/2004, and the ECJ’ case law has clarified its scope.
In view of simplifying the coordination rules in the field of social security (one of the purposes of the regulations for the coordination of social security systems), the same concept can be used “by extension” in the meaning of Article 12 Regulation 883/2004.
Considering an average of 252 working days in a calendar year, a period of 12 working days would represent below 5% of the working time. The activity carried out would be then a marginal activity in the sense of Article 12 Regulation 883/2004. The 12 days period shall apply per Member State.
It is probably more pragmatic to consider that any activity, carried out by an employed person, in another Member State, over a period of maximum 12 working days in a calendar year, is excluded from the scope of Article 12 and 13 Regulation 883/2004 (and in context, Article 16 Regulation 987/2009 does not apply)
An employed person who is covered under the legislation of a Member State and who performs activities in the territory of another Member State over a period does not exceed 12 working days in a calendar year, in respect of those activities, shall be subject only to the legislation of the former Member State as though those activities were performed in its territory.
It is obviously difficult to audit such a limitation. However, it is not easier to verify whether a person attends business meetings in the sense of the EP proposal, or work meetings related to a project in the framework of provision of services. It is probably easier to verify the period of stay rather than the nature of the activity carried out.