Starting from the 1st of May 2010, Regulation (CEE) no. 1408/71 and 574/72 had been replaced with Regulation (CE) no. 883/2004 of the European Parliament and Council of 29 of April 2004, regarding the coordination of the social security systems and, respectively, Regulation (CE) no. 987/2009 of the European Parliament and Council of 16 September 2009, regarding the procedure of entry into force of Regulation (CE) no. 883/2004, regarding the coordination of the social security systems.
The changes brought by Regulation (CEE) no. 1408/71 and 574/72 are as follows:
- Using the A1 portable document instead of E1 form;
- Setting the maximum time limit to the initial secondment to 24 months (initially, there were 12 months )
- Eliminating the institution in charge with prolonging the secondment.
Following research on the subject, we came to realise that there are some differences in the meaning of “seconded employee” as it results from Regulation (CE) no. 883/2004 and from the Romanian Code du Travail.
Thusly, according to art. No. 43 of the Code du Travail, secondment refers to the temporary assignment of work related tasks to the employee by the employer, outside the workplace. Consequently, the deployed employee takes on work related tasks for the employer, outside the workplace. The difference between delegation and secondment lays in the fact that the delegated employee carries out activities for the same employer, but in a place that is different from the one indicated as workplace in the Labour Contract, while a seconded employee works for another employer. In case of delegation, the Labour Contract shall not be suspended and the employer shall pay the employee accordingly, while in case of secondment, the Labour Contract will be suspended and the salary paid by the new employer.
On the other hand, according to art. No. 12 of Regulation (CE) no. 883/2004, the person who carries out work activities in a member state for an employer who usually carries out economic activities in this state, and who is transferred by the employer to another member state to work for another employer, continues to be subject to the Law of the first member state, under the condition that the secondment does not exceed 24 months and that the person was not sent to replace another person.
Therefore, in order for a person to continue to be subject to the Law of the member state transferred from, one of the conditions should be that the person still works for the employer, but in the situation in which the secondment respects the Code du Travail, the condition cannot be respected because the employee works for another employer. For this reason, we can say that the secondment, as defined by Regulation (CE) no. 883/2004, represents delegation, as defined by the Code du Travail. Consequently, the employee can use the A1 portable document for delegated employees in accordance with the Code du Travail, taking into consideration that the delegated employee temporary carries out, for the same employer, work related activities and tasks outside the workplace, which according to Regulation (CE) no. 883/2004 refers to being a seconded employee.
More than that, this conclusion respects the general definition of “seconded employee” as formulated in paragraph (1) of art. No. 2 of Directive 96/71/CE of the European Parliament and Council of 16 December 1996, regarding the secondment of employees, by which we understand: “an employee who carries out work activities on the territory of another member state, different from the one he usually works in, for an unlimited period of time.
Publisher: Budușan & Associates