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Brexit: posting of workers and exercise of activities in two or more States

Online the instructions issued by the INPS concerning the applicable legislation

The Circular number 71 of April 27th, 2021 issued by the INPS provides information about the applicable legislation in case of posting of workers and the exercise of activities in two or more States, following the publication of the Agreement on commercial exchanges and cooperation (Trade and Cooperation Agreement - TCA) between the European Union and the European Atomic Energy Community, on one side, and the United Kingdom of Great Britain and Northern Ireland, on the other side.

The Institute reminds that, pending the exam of the TCA by the European Parliament and the Council and its ratification by the European Union, the Parties have agreed to apply the Agreement on a temporary basis for the period between January 1st, 2021 and February 28th, 2021, furtherly extended until April 30th, 2021.

With particular reference to the social security sector, the coordination rules are set forth in the Protocol (which is an integral part of the TCA), that will be valid for 15 years after the date of entry into force of the Agreement (the provisions regarding the applicable legislation are, in particular, set out in the Title II of the Protocol and in the Annex SSC-7).

For what concerns the posted workers - notwithstanding the general provisions and as a transitional measure - the Protocol provides that the person working in a State different from the State in which the registered office or place of business of the undertaking or employer is situated (employed people), or from where the substantial part of the activity is pursued (self-employed people), will be subject to the legislation of the State of residence for a period of time that cannot be longer than 24 months.

The INPS makes clear that the rules of the Protocol concerning the posting of workers will be applied only to the Member States that have already notified the Union that they wish to derogate from the general rules (Category A Member States).

In this respect, the Ministry of Labour and Social Politics became messenger for Italy’s intention to be included in the list of Category A Member States that, in the relations with the United Kingdom, will apply the rules on posting of workers since February 1st, 2021 and for the next 15 years (validity period of the Protocol).

The Circular considers the cases of posting which are covered by the application of the Withdrawal Agreement and the validity of the certifications regarding posting periods having their expiration date after December 31st, 2020, providing the following guidelines:

• The European citizens working in the United Kingdom, either employed or self-employed people, at the end of the transition period (December 31st, 2020), that are subject to the legislation of a Member State, keep this condition until they find themselves in the above-described cases, without interruption.

• The validity of the posting certifications released for working periods starting before the date of entry into force of the TCA and with expiring date after December 31st, 2020 is confirmed. In these cases, when the certification date will expire, the worker will be entitled to require a new posting, without interruption (in application of the provisions of the Title II of the Regulation (EC) number 883/2004.

The Circular also reports that in the event of extension of the posting period (according to article 16 of the Regulation (EC) number 883/2004) authorized before January 1st, 2021 - and still pending at that date – the authorization will be valid until its natural expiring date. Likewise, different agreements stipulated before January 1st, 2021, notwithstanding the general provisions laid down in the previous EC discipline, will be valid until their natural expiration date.

Finally, with reference to the hypothetical case of employed or self-employed activities performed in two or more States, given that the case is specifically governed in the Protocol on social security coordination, the Institute states that the local structures will continue to release the certifications concerning the applicable legislation also in the above-mentioned cases.

For further details, please refer to the Circular