In accordance with Regulation (EC) No 987/2009 of the European Parliament and the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, if a worker established in a Member State is sent temporarily to another Member State to perform a labor or professional activity, the worker shall be entitled to claim the application of the social security system of his native country during all his detachment to the other Member State (usually 24 months).

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 establish by common agreement the center of interests of the person concerned, based on an overall assessment of all available information relating to relevant facts, which may include, as appropriate:

  • the duration and continuity of presence on the territory of the Member States concerned;
  • the person’s situation, including:
  • the nature and the specific characteristics of any activity pursued, in particular the place where such activity is habitually pursued, the stability of the activity, and the duration of any work contract;
  • his family status and family ties;
  • the exercise of any non-remunerated activity;
  • his housing situation, in particular how permanent it is;
  • the Member State in which the person is deemed to reside for taxation purposes.

In accordance with art. 11 of Regulation (EC) No 987/2009, where the consideration of the various criteria based on relevant facts as set out above does not lead to agreement between the institutions concerned, the person’s intention, as it appears from such facts and circumstances, especially the reasons that led the person to move, shall be considered to be decisive for establishing that person’s actual place of residence.

The Regulation applies not only to nationals of Member States but also to third-country nationals and their family members residing legally on the territory of a Member State and who have in that State an insurance or social benefit.

Finally, it should be noted that the employer shall exercise in the host Member State, substantial activities in the field of activity for which it detaches the worker and the worker must retain a legal relationship with his employer.

Héloïse Lopez

hlopez@avocatbarcelone.com

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