Germany: Issue of an A1 requires “legal residency” in the EU, but this need not be permanent.
Employee mobility plays an important role in many industries, not only in construction, transport and home care. Increasingly, employees from non-EU countries, such as Ukraine or Serbia, are also being used. As with any cross-border employment, the question arises as to which social law applies. There are clear rules for this within the EU (Regulation 883/04): In principle, the social law of the state in which the work is carried out applies. However, an EU citizen who pursues employment in two or more member states is exceptionally subject to the regulations of their home member state if pursuing a substantial part of activity there.
The ECJ now had to decide whether this also applies to non-EU citizens who do not have permanent residence in an EU state: Several ice-skaters from Central and Eastern Europe were under contract for a Dutch ice-skating show. They were residing legally in the Netherlands to train and perform. The ice revue then toured Europe. The Dutch social security institution was now of the opinion that no A1 could be issued for these athletes because their main residence was still in their home country, outside the EU. The ECJ takes a different view: According to the objectives of Regulations 883/2004 and 1231/2010, third-country citizens who legally reside and work in an EU state must also be treated in the same way as EU citizens. Therefore, an A1 must be issued as a result.
What does this mean in practice? Whenever a third-country citizen legally resides and works within the EU, he or she benefits from the European coordination system for social law like an EU citizen. The prerequisite, however, is the legitimate nature of the residence, which is why care must be taken to ensure that all residence requirements are met.
Source: ECJ C-411/17 – Holiday on Ice