Changes from report parliamentary committee draft to plenary report

Regulation (EC) No 987/2009

Change 28

ChangedArticle 2 – paragraph 1 – point 4, Article 1 – paragraph 2 – point e a:ea: (ea)“(ea) ‘fraud’ means any intentional act or omission to act, in order to obtain or receive social security benefits, to avoid paying social security contributionsbenefits or to circumvent the membership rules of aavoid Memberto State’spay social security scheme,contributions, contrary to the law of thea Member State,State in accordance with the basic regulationRegulation orand the implementing regulation;Regulation;”

Regulation (EC) No 987/2009

Change 29

ChangedArticle 2 – paragraph 1 – point 5, Article 2 – paragraph 5: 5. When a person's rights or obligations to which the basic and implementing Regulations apply have been established or determined, the competent institution may request the institution in the Member State of residence or stay to provide personal data about that person.person, in accordance with Regulation (EU) 2016/679. The request and any response shall be limited to information which enables the competent Member State to identify any inaccuracy in the facts on which a document or a decision determining the rights and obligations of a person under the basic or implementing Regulation is based. The request can also be made where there is no existing doubt about the validity or accuracy of the information contained in the document or on which the decision is based in a particular case. The request for information and any response must be reasoned, necessary and proportionate.

In line with the comments of the European Data Protection Supervisor on a proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems and Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004.

Regulation (EC) No 987/2009

Change 30

ChangedArticle 2 – paragraph 1 – point 5, Article 2 – paragraph 6: 6. The Administrative Commission shall draw up a detailed list of the types of data requests and responses which can be made under paragraph 5, identify which entities are to be entitled to make such requests and establish the applicable procedures and safeguards. The European Commission shall give such list the necessary publicity. Only data requests and responses which are listed shall be permitted.

In line with the comments of the European Data Protection Supervisor on a proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems and Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004.

Regulation (EC) No 987/2009

Change 31

ChangedArticle 2 – paragraph 1 – point 7, Article 5 – paragraph 1: 1. Documents issued by the institution of a Member State and showing the position of a person for the purposes of the application of the basic Regulation and of the implementing Regulation, and supporting evidence on the basis of which the documents have been issued, shall be accepted by the institutions of the other Member States for as longprovided asthat they have not been withdrawn or declared to be invalid by the Member State in which they were issued. Such documents shall only be valid if all sections indicated as compulsory are filled in. However, such documents are not required to be accepted where they have not been withdrawn due to a breach of the principle of sincere cooperation by the issuing Member State.

Regulation (EC) No 987/2009

Change 32

RemovedArticle 2 – paragraph 1 – point 7, Article 5 – paragraph 1 a (new): 1a. Where not all sections of documents, as referred to in paragraph 1, indicated as compulsory are filled in, the institution of the Member State that receives the document shall, without delay, notify the issuing institution of the defect in the document. The issuing institution shall, as soon possible, rectify the document or confirm that the conditions of issuing the document are not fulfilled. If the missing information is not provided within five working days of notification of the defect, the requesting institution may proceed as if the document had never been issued and, if it does so, shall inform the issuing institution accordingly.

AddedArticle 2 – paragraph 1 – point 7, Article 5 – paragraph 2: b) If the issuing institution, having reconsidered the grounds for issuing the document is unable to detect any error it shall forward to the requesting institution all supporting evidence within 25 working days from the receipt of the request. In cases which are urgent for the purpose of protecting the rights of the person concerned, this shall be done within two working days from the receipt of the request, notwithstanding that the issuing institution may not have completed its deliberations pursuant to subparagraph (a) above. / c) Where the requesting institution having received the supporting evidence continues to have doubts about the validity of a document or the accuracy of the facts on which the particulars contained therein are based that the information upon which the document was issued is not correct, it shall submit evidence to that effect and make a further request for clarification and where appropriate the withdrawal of that document by the issuing institution in accordance within the procedure and timeframes set out above. / ca) Where the issuing institution fails to reply within the applicable time-limit referred to in point (b) and where there is doubt about the validity of a portable document certifying the social security legislation applicable to the holder or the accuracy of the facts on which they are based, the requesting institution shall inform the issuing institution of this situation and may request that a deposit equal to the contributions that t…

Regulation (EC) No 987/2009

Change 33

RemovedArticle 2 – paragraph 1 – point 7, Article 5 – paragraph 2 – point a: a) When receiving such a request, the issuing institution shall reconsider the grounds for issuing the document and, if necessary, withdraw it or rectify it, within 15 working days from the receipt of the request. Upon detection of an irrefutable case of fraud committed by the applicant of the document, the issuing institution shall withdraw or rectify the document immediately and with retroactive effect.

AddedArticle 2 – paragraph 1 – point 7 a (new), Article 5 – paragraph 4: 7a. In Article 5, paragraph 4 is replaced by the following: / 4. Where no agreement is reached between the institutions concerned, the matter may be brought before the Administrative Commission by the competent authorities. The Administrative Commission shall reconcile the points of view within three months of the date on which the matter was brought before it. The competent authorities and institutions concerned shall take the necessary measures to apply the decision of the Administrative Commission, without prejudice to the right of the authorities, institutions and persons concerned to have recourse to the procedures and tribunals provided for by the legislation of the Member States, by this Regulation or by the Treaties.

Regulation (EC) No 987/2009

Change 34

RemovedArticle 2 – paragraph 1 – point 7, Article 5 – paragraph 2 – point c a (new): (ca) The absence of response by the issuing institution to the requesting institution shall constitute a breach of the principle of sincere cooperation by the issuing Member State.

AddedArticle 2 – paragraph 1 – point 7 b (new), Article 5 – paragraph 4 a (new): 7b. In Article 5, the following paragraph 4a is added: / “4a. Notwithstanding paragraphs 1 to 4, where a requesting institution has acquired evidence, collected in the course of a judicial investigation that constitutes evidence that a document certifying the social security legislation which applies to the holder or the accuracy of the facts on which they are based was obtained as a result of a fraud, it shall request the issuing institution to withdraw or rectify that document within 25 working days from receipt of the request. The issuing institution shall withdraw or rectify the document with retroactive effect. If the issuing institution fails to withdraw or rectify the document concerned within in accordance with the first subparagraph, the requesting institution may apply to a national court to decide whether the document concerned may be disregarded on the basis of fraud.”

AddedThe corresponding recital proposed by the Commission, recital 15 which reads “With a view to expediting ... within a reasonable period of time”, was voted by the EMPL committee as a compromise.

Regulation (EC) No 987/2009

Change 35

RemovedArticle 2 – paragraph 1 – point 7, Article 5 – paragraph 2 a (new): 2a. In the absence of a response from the issuing institution, the requesting authority may reject, rectify or reclassify the documents issued by the institution of a Member State attesting to a person’s situation for the purposes of the application of the basic regulation and the implementing regulation.

AddedArticle 2 – paragraph 1 – point 7 c (new), Article 6 – paragraph 3: 7c. In Article 6, paragraph 3 is replaced by the following: / ‘3. Where no agreement is reached between the institutions or authorities concerned within three months of the date on which the difference of views arises, the matter shall be brought before the Administrative Commission by the competent authorities no earlier than one month after the date on which the difference of views, as referred to in paragraph 1 or 2 arose. The Administrative Commission shall seek to reconcile the points of view within six months of the date on which the matter was brought before it.’

Regulation (EC) No 987/2009

Change 36

RemovedArticle 2 – paragraph 1 – point 8 – point a, Article 14 – paragraph 1: 1. For the purposes of the application of Article 12(1) of the basic Regulation, 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 within the meaning of the Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services52 or sent by that employer to another Member State’ shall include a person who is recruited with a view to being posted or sent to another Member State, provided that, immediately before the start of his employment, the person concerned has already been subject, for a period of at least six months, to the legislation of the Member State where the employer is established, in accordance with this Title.

AddedArticle 2 – paragraph 1 – point 7 d (new), Article 7 – paragraph 1 a (new): 7d. In Article 7, the following paragraph is inserted: / “1a. The provisional calculation of a benefit or contribution referred to in paragraph 1 shall be made no later than one month after the submission of the request by the person concerned.”

Regulation (EC) No 987/2009

Change 37

RemovedArticle 2 – paragraph 1 – point 8 – point a a (new), Article 14 – paragraph 2: (aa) paragraph 2 is replaced by the following: / “2. For the purposes of the application of Article 12(1) of the basic Regulation, the words ‘which normally carries out its activities there’ shall refer to an employer that ordinarily performs substantial activities, other than purely internal management activities, in the territory of the Member State in which it is established, taking account of all criteria characterising the activities carried out by the undertaking in question, such as the turnover achieved in the posting State where such turnover is at least 25 % of the total annual turnover. The relevant criteria must be suited to the specific characteristics of each employer and the real nature of the activities carried out.”

AddedArticle 2 – paragraph 1 – point 7 e (new), Article 11 – paragraph 1: 7e. In Article 11, paragraph 1 is replaced by the following: / ‘1. Where there is a difference of views between the institutions of two or more Member States about the determination of the residence of a person to whom the basic Regulation applies, these institutions shall, no later than three months after the difference of views arises, establish by common agreement the centre of interests of the person concerned, based on an overall assessment of all available information relating to relevant facts, which may include, as appropriate:’

Removed(http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:284:0001:0042:en:PDF)

Regulation (EC) No 987/2009

Change 38

AddedArticle 2 – paragraph 1 – point 8 – point a, Article 14 – paragraph 1: 1. For the purposes of the application of Article 12(1) of the basic Regulation, 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 sent by that employer to another Member State shall include a person who is recruited with a view to being sent to another Member State, provided that immediately before the start of his employment, the person concerned is already subject to the legislation of the sending Member State in accordance with Title II of the basic Regulation.

AddedThis amendment integrates the criteria developed to define substantial activity in Directive 2014/67/EC.

AddedRegulation (EC) No 987/2009

AddedArticle 2 – paragraph 1 – point 8 – point a a (new), Article 14 – paragraph 2: (aa) paragraph 2 is replaced by the following: / "2. For the purposes of the application of Article 12(1) of the basic Regulation, the words ‘which normally carries out its activities there’ shall refer to an employer that ordinarily performs substantial activities. In order to determine whether an undertaking genuinely performs substantial activities, other than purely internal management and/or administrative activities, the competent authorities shall make an overall assessment of all factual elements characterising those activities, taking account of a wider timeframe, carried out by an undertaking in the Member State of establishment. Such elements may include in particular: / (a) the place where the undertaking has its registered office and administration, uses office space, pays taxes and social security contributions and, where applicable, in accordance with national law has a professional licence or is registered with the chambers of commerce or professional bodies; / (b) the place where workers are recruited and from which they are sent; / (c) the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and with its clients, on the other; / (d) the place where the undertaking performs its substantial business activity and where it employs administrative staff; / (e) the number of contracts performed and/or the size of the turnover realised in the Member State of establishment, taking into account the specific situation of, inte…

AddedThis amendment integrates the criteria developed to define substantial activity in Directive 2014/67/EC.

AddedRegulation (EC) No 987/2009

Article 2 – paragraph 1 – point 8 – point a b (new), Article 14 – paragraph 3: (ab) paragraph 3 is replaced by the following: / “3. For the purposes of the application of Article 12(2) of the basic Regulation, the words ‘who normally pursues an activity as a self-employed person’ shall refer to a person who habitually carries out substantial activities in the territory of the Member State in which he is established. In particular, that person must have already pursued a sufficient activity for some time before the date when he wishes to take advantage of the provisions of that Article and, during any period of temporary activity in another Member State, must continue to fulfil, in the Member State where he is established, the requirements for the pursuit of his activity in order to be able to pursue it on his return.”

Change 39

Removed(http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:284:0001:0042:en:PDF)

AddedThis amendment integrates the criteria developed to define substantial activity in Directive 2014/67/EC.

Regulation (EC) No 987/2009

Change 40

RemovedArticle 2 – paragraph 1 – point 8 – point b a (new), Article 14 – paragraph 10: (ba) paragraph 10 is replaced by the following: / “10. "The determination of applicable legislation under Article 13 of Regulation (EC) 883/2004 shall apply for a maximum period of 12 months. After expiry of the 12-month period, the determination shall be revised on the basis of the person's situation.”

AddedArticle 2 – paragraph 1 – point 8 – point a c (new), Article 14 – paragraph 4 a (new): (ac) the following paragraph is inserted after paragraph 4: / “4a. 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.”

Removed(http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:284:0001:0042:en:PDF)

AddedThis amendment integrates the criteria developed to define substantial activity in Directive 2014/67/EC.

Regulation (EC) No 987/2009

Change 41

RemovedArticle 2 – paragraph 1 – point 11, Article 19 – paragraph 4: 4. Where necessary for the exercise of legislative powers at national or Union level, relevant information regarding the social security rights and obligations of the persons concerned shall be exchanged directly between the competent institutions and the labour inspectorates, immigration or tax authorities of the States concerned this may include the processing of personal data for purposes other than the exercise or enforcement of rights and obligations under the basic Regulation and this Regulation in particular to ensure compliance with relevant legal obligations in the fields of labour, health and safety, immigration and taxation law. The authorities responsible for the social security data shall inform data subjects of the transfer of those data to another public administrative body and of the purpose(s) of the further processing, in accordance with the principle of fair processing set in Article 6 of Directive 95/46/EC of the European Parliament and of the Council* and Article 5(l)(a)of Regulation (EU) 679/2016 of the European Parliament and of the Council**. The authorities to which the social security data are transferred shall inform the data subjects of its identity, the purpose(s) of the processing and the categories of data processed in accordance with Article 11(1)(a), (b) and (c) of Directive 95/46/EC and with Article 14(1) of Regulation (EU) 679/216. Further details shall be laid down by decision of the Administrative Commission. / *.Directive 95/46/EC of the …

AddedArticle 2 – paragraph 1 – point 8 – point b a (new), Article 14 – paragraph 8 a (new): (ba) the following paragraph is inserted after paragraph 8: / “8a. For the purposes of the application of point (b) of Article 13(1) of the basic Regulation, the largest share of his/her work activities shall be determined by comparing the average weekly hours worked in each Member State where the person pursues an activity.”

AddedThis amendment integrates the criteria developed to define substantial activity in Directive 2014/67/EC.

AddedRegulation (EC) No 987/2009

AddedArticle 2 – paragraph 1 – point 8 – point b b (new), Article 14 – paragraph 10: (bb) paragraph 10 is replaced by the following: / ‘10. The determination of the applicable legislation within the meaning of Article 13 of the basic Regulation shall apply for a maximum period of 24 months. Once that period has elapsed, the applicable legislation shall be reassessed in the light of the employee’s situation.’

AddedThis amendment integrates the criteria developed to define substantial activity in Directive 2014/67/EC.

AddedRegulation (EC) No 987/2009

AddedArticle 2 – paragraph 2 – point 8 a (new), Article 15 – paragraph 1: 8a. In Article 15, paragraph 1 is replaced by the following: / “1. Unless otherwise provided for by Article 16 of the implementing Regulation, where a person pursues his or her activity in a Member State or more than one Member State other than the Member State competent under Title II of the basic Regulation, the employer or, in the case of a person who does not pursue an activity as an employed person, the person concerned shall inform the competent institution of the Member State whose legislation is applicable thereof in advance. That institution shall without delay make information concerning the legislation applicable to the person concerned, pursuant to Article 11(3)(b), Article 12 or Article 13 of the basic Regulation, available to the person concerned and to the institution designated by the competent authority of the Member State in which the activity is pursued. / 1a. For the purposes of the application of Article 12, the employer or, in the case of a person who does not pursue an activity as an employed person, the person concerned shall notify the competent institution of the Member State whose legislation is applicable thereof, in advance. / Unless the activity pursued concerns a business trip, that competent institution shall, within 20 working days of that notification, do all of the following: / (a) assess whether the conditions for continued application of the legislation of the relevant Member State are met; / (b) issue the attestation referred to in Articl…

AddedRegulation (EC) No 987/2009

AddedArticle 2 – paragraph 1 – point 9 a (new), Article 15 a (new): 9a. The following article is inserted: / “Article 15a / Delivery of the attestation / 1. In order to ensure the timely delivery of the attestations referred to in Article 19(2), administrative cooperation and mutual assistance shall, for the purposes of Article 15(1) be implemented through the Internal Market Information System (IMI) established by Regulation (EU) No 1024/2012 of the European Parliament and of the Council1a. / 2. Member States shall ensure that the attestations referred to in Article 19(2) is issued to the persons concerned and to the employers electronically. / 1a Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 on administrative cooperation through the Internal Market Information System and repealing Commission Decision 2008/49/EC (‘the IMI Regulation’) (OJ L 316, 14.11.2012, p.1).”

AddedSo far, not all Member States are issuing PDA1 forms electronically, nor providing them to the receiving Member State in a timely manner. This leads to delays which are a burden on the concerned citizens and employers. To foster free movement and improve social security cooperation Member States should issue the document electronically. For cooperation, Member States should use the IMI which is developed exactly to increase cooperation on crossborder matters.

AddedRegulation (EC) No 987/2009

AddedArticle 2 – paragraph 1 – point 10, Article 16 – paragraph 3: 3. If that institution determines that the legislation of another Member State applies, it shall do so provisionally and shall without delay inform the institution of the Member State which it considers to be competent of this provisional decision. The decision shall become definitive within two months after the institution designated by the competent authorities of the Member State concerned has been informed of it, unless the latter institution informs the first institution and the persons and the employer concerned that it cannot yet accept the provisional determination or that it takes a different view on this.

AddedRegulation (EC) No 987/2009