NIM33085 | Special Cases: International going to or coming from abroad EEA Regulations 883/04 (After 1 May 2010): Meaning of “Direct Relationship”

Note: This page is under review and the content may only be appropriate to periods beginning before 1 January 2021 and for those covered by a Withdrawal Agreement. A new International NICs manual is under development and will be published in due course.

Article 12 of Regulation 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems

A direct relationship must continue to exist between the posting undertaking and the posted worker throughout the period of posting. There are some indicators of the existence of such a direct relationship, including:

• It must be evident that the contract was and still is applicable to the parties involved in drawing it up and stems from the negotiations that led to the recruitment;

• The power to terminate the contract of employment (dismissal) must remain exclusively with the posting undertaking;

• The posting undertaking must retain the power to determine the nature of the work performed by the posted worker, not in terms of defining the details of the type of work to be performed and the way it is to be performed, but in the more general terms of determining the end product of that work or the basic service to be provided;

• The obligation with regard to the remuneration of the worker rests with the undertaking which concluded the contract, irrespective therefore of who actually makes the payment.

There are some situations where it is impossible for someone to remain insured in the sending Member State under Article 12:

• The undertaking to which the worker has been posted places him/her at the disposal of another undertaking in the Member State in which it is situated;

• The undertaking to which the worker is posted places him/her at the disposal of an undertaking situated in another Member State;

• The worker is recruited in a Member State in order to be sent by an undertaking situated in a second Member State to an undertaking in a third Member State;

• The worker is recruited in one Member State by an undertaking situated in a second Member State in order to work in the first Member State.