Sending employees on foreign business trips? Check if you should get the A1 certificate

The guiding principle of the EU rules on the coordination of social security systems is that the worker is subject to a social security system in the country where he works on a daily basis. This rule shall continue to apply where a worker periodically carries out work in another country, provided that the period does not exceed 24 months. This is regulated by Article 12 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, which provides that „a person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted by that employer to another Member State to carry out work on behalf of that employer shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed 24 months and that he is not sent to replace another posted person”. This provision therefore describes the situation of „posting”, which is a situation where the working time outside the country does not exceed 24 months. It should be noted that the provision in question sets a maximum duration for posting and, on the other hand, does not set a minimum duration for posting. On a literal reading of the provision, even a person who is sent by his employer to work in another Member State for a single day would be a posted worker and, consequently, would be required to obtain the A1 certificate for that person.

Analysing the situation described above, the Supreme Court in its judgements presents the position according to which the issuance by ZUS of the A1 form (previously E-101) excludes the recognition that employees in the periods indicated were on business trips. In the opinion of the Supreme Court, ZUS certification of form A1 is only allowed in the case of foreign secondments of employees to perform work (SN judgment of November 14, 2013, II UK 204/13; SN judgment of January 13, 2015, II UK 205/13). This was also the case in the lower instance courts (III AUa 566/16, III AUa 830/16, III AUa 114/16). The Supreme Court therefore requires a distinction to be made between cases of posting and business travel by an employee, noting that EU rules refer to a person delegated by an employer to another Member State to perform work on behalf of an employer. Therefore, the purpose of a worker’s departure, in order to be able to talk about posting, should be to perform work on behalf of the employer. In other words, the worker should perform his or her regular employment duties during the posting. However, business travel, by its very nature, is an incidental event in relation to the regular performance of duties. Often also employees during foreign business trips take part in trainings or integration meetings, which cannot be classified strictly as cases of work.

This problem was noticed by the European Commission, which in March this year announced that Regulation 883/2004 requires changes, including the fact that in the case of business trips within the EU, A1 forms should not be used anymore. However, it should be noted that this means that, in the current legal situation, the EU authorities take the view that the A1 certificate should also be obtained at all times when travelling on official business. Often, ZUS also presents its position that the A1 certificate should be obtained also in the case of employees’; business trips.

However, the lack of the A1 certificate may result in severe consequences:

1. the imposition of a fine on the employer or the persons representing the employer by the authorities of the State to which the worker is posted, if the legislation of that State so provides,
2. the recognition that the worker concerned should be subject to the social security system of the country to which the posting took place (where the worker is travelling on official business) and consequently to the payment of social security contributions.