Will the practice of the member states be unified or further fragmented based on the changed German attitude?
If an employer in a member state sends an employee out to work temporarily in another member state – e.g. for a business trip, for a course, or for on-the-job training at the mother company – this qualifies as posting.
In the course of a posting, the employee stays in the social security system of the sending country. Neither establishment of parallel social insurance nor payment of social insurance contributions is required in the host member state. For proof, a so-called “A1 certificate” is needed. This has to be applied for and issued by the competent institution of the sending country prior to the business trip. The relevant regulation uses the term “whenever possible in advance”, leaving the right of interpretation basically to the member states. Not even typical exceptions are listed in the regulation, i.e., covering cases where no application in advance is needed.
For frequently travelling employees as well as urgent, unforeseen business trips the following question arises. Since one of the goals of community law is removal of administrative interstate obstacles, is it reasonable to require the in-advance-application strictly, in each case?
Assessment of the in-advance-application requirement varies greatly across member states. France and Austria represent a strict standpoint, and interpret the term “whenever possible” as “always” supported by the introduction of sanctions (administrative fines) built into their national law.
Recently, however, Germany accepted a different point of view. The federal ministry of labour and social issues (Bundesministerium für Arbeit und Soziales, ‘BMAS’) examined the question and in their guide published in June 2019 they declared that in case of unforeseen, urgent business trips as well as of business trips no longer than one week, neither the requirement of an in-advance application nor punishment for failing to do so is reasonable. Instead, they found it sufficient to issue and present the document only in case of subsequent necessity (meaning in case of a check by the authority).
The BMAS guide is not legally binding, while regarding other member states it even has no legal relevance. However, it foreshadows the emergence of two different ways to approach interpretation of the relevant community law, and raises the question of the necessity for clarification at EU level.
Source: Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I);
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems;
Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems;
Bundesministerium für Arbeit und Soziales: Handhabung der Bescheinigung A 1 bei kurzfristig anberaumten und kurzzeitigen Tätigkeiten im EU-Ausland, den EWR-Staaten Island, Liechtenstein und Norwegen sowie der Schweiz