Miscellaneous situations

Gainful activity is carried out in only one State – the basic rule

Social security legislation of only one Member State applies to a person covered by Regulation (EC) No 883/2004 of the European Parliament and of the Council. The basic rule for determining the legislation applicable is the rule of the State of the performance of the activity – lex loci laboris (Article 11(3) (a) of Regulation No 883/2004), i.e.:

• An employee is subject to the social security legislation of the Member State in whose territory he or she is pursuing an activity, even if he or she resides in the territory of another Member State or if his or her employer is established in the territory of another Member State. The situation is not affected by the fact where and in what currency the person is paid, where the taxes are paid and what the person’s nationality is (provided that the person falls within the personal scope of the regulation),
• A self-employed person is subject to the legislation of the Member State in whose territory he or she is self-employed, even if he or she resides in the territory of another Member State, regardless of the person’s nationality (provided that the person falls within the personal scope of the Regulation) or where he or she pays taxes.

Form A1 according to the basic rule is issued only in justified cases with a cross-border element, e.g. if a person needs to prove to the institution of the State of residence that he or she participates in the social security system of another Member State.

Special rules for certain categories of persons

If a migrant is in a situation different from the basic rule, i.e. if he or she is working in another State(s), such person or his or her employer are obliged to notify the relevant social security institution of this situation; this notification obligation is fulfilled by the submission of an application for a certificate of social security legislation applicable.

1) Civil servants and persons treated as such are subject to the legislation of the Member State to which the administrative authority employing them is subject. The situation is regulated by Article 11(3)(b) of Regulation No 883/2004. If the conditions are met, form A1 is issued. 

2) Persons receiving unemployment benefits in accordance with Article 65 of Regulation No 883/2004 under the legislation of the Member State of residence who were resident in a Member State other than the Member State concerned shall be subject to the legislation of the Member State of residence. The situation is regulated by Article 11(3)(c) of Regulation No 883/2004. Form A1 is not issued in this case.

3) Persons recruited or recalled to military or civilian service are subject to the legislation of the Member State to whose service they were recruited or called. The situation is regulated by Article 11(3)(d) of Regulation No 883/2004. Form A1 is not issued in this case.

4) Inactive persons, i.e. persons who are not gainfully employed (e.g. students, pensioners) are subject to the legislation of the Member State of residence. The situation is regulated by Article 11(3)(e) of Regulation No 883/2004. Form A1 is not issued in this case.

5) Persons employed on board a ship are subject to the legislation of the Member State that is the ship’s flag state. This rule is laid down in more detail in Article 11(4) of Regulation No 883/2004. If the conditions are met, form A1 is issued. 

6) Members of the air crew or cabin crew in the field of passenger or cargo air transport are subject to the legislation of the Member State in which their parent airport is located. The situation is regulated by Article 11(5) of Regulation No 883/2004. If the conditions are met, form A1 is issued. 

7) Posting of workers

• Posted employees are subject to the legislation of the posting State for a period not exceeding 24 months, if they meet the conditions laid down in Regulations Nos 883/2004 and 987/2009. The conditions are laid down in detail in Article 12(1) of Regulation No 883/2004. If the conditions are met, form A1 is issued. 

Notification obligation of the posting employer

In the event of the posting of an employee to temporarily pursue an activity in the territory of another Member State, the posting employer is required to notify the competent institution of the posting State in accordance with Article 15 of Regulation No 987/2009. In the Czech Republic, the employer shall fulfil the above notification obligation by submitting a joint application of the employee and the employer for the issue of a certificate of social security legislation applicable.

• Posted self-employed persons are be subject to the legislation of the posting State, provided that they meet the conditions set out in Article 12(2) of Regulation No 883/2004. If the conditions are met, form A1 is issued.

Notification obligation of a posted self-employed person

A self-employed person who will temporarily pursue its activity in the territory of another Member State has a notification obligation towards the institution of the posting State in accordance with Article 15 of Regulation No 987/2009. In the Czech Republic, it shall fulfil the above notification obligation by submitting an application of a self-employed person for the issue of a certificate of social security legislation applicable. 

• The posting of workers in the area of free movement of persons is governed by Regulations (EC) Nos 883/2004 and 987/2004. This area is the competence of the CSSA, or the district social security administrations. More information in Czech.

• The posting of workers in the area of free movement of services is governed by Directive 96/71/EC (concerning the working and pay conditions of certain categories of workers). This area is in the competence of the State Labour Inspection Office.

8) Simultaneous pursuit of activities in the territories of two or more Contracting States

These are situations where:

a) A worker, simultaneously or alternately, carries out one or more separate activities in two or more Member States for the same undertaking or employer or for different undertakings or employers. The situation is regulated by Article 13(1) of Regulation No 883/2004.

b) A self-employed person, simultaneously or alternately, pursues one or more separate self-employed activities, regardless of the nature of those activities, in two or more Member States. The situation is regulated by Article 13(2) of Regulation No 883/2004.

c) A person usually works as an employee and a self-employed person in different Member States. The situation is regulated by Article 13(3) of Regulation No 883/2004.

d) A person is employed as a civil servant by one Member State and works as an employed or self-employed person in one or more Member States. The situation is regulated by Article 13(4) of Regulation No 883/2004.

Notification obligation of the person

A person pursuing an activity in the territory of two or more Member States is obliged to notify the institution of the Member State of residence in accordance with Article 16(1) of Regulation 987/2009. In the Czech Republic, it shall fulfil the above notification obligation by submitting one of the following applications, depending on the specific situation:

a) A joint application by an employee and an employer for the issue of a certificate of applicable social security legislation;

b) An application of a self-employed person for the issue of a certificate of applicable social security legislation;

c) A joint application by an employee and an employer and a self-employed person for the issue of a certificate of applicable social security legislation.

The situation is regulated by Article 13 of Regulation No 883/2004. If the conditions are met, form A1 is issued. 

9) Contract staff of the European Communities may their legislation applicable from the following options:

a) the legislation of the Member State in which they are employed;

b) the legislation of the State which last applied to them; or

c) the legislation of the Member State of which they are nationals.

This right of choice may be exercised only once and takes effect on the day of taking up employment. The situation is regulated by Article 15 of Regulation No 883/2004.

10) Exception from legislation applicable

If a migrant wishes to be subject to the legislation of a Member State other than the one designated for him or her under the basic rule or special provisions, he or she may request an exemption from legislation applicable in accordance with Article 16 of Regulation 883/2004.