Self-employed persons for regulation purposes are persons pursuing an activity as a self-employed person. The concept of “activity as a self-employed person” within the meaning of the regulation refers to any activity or equivalent situation which is regarded under the national social security legislation of the Member State in which such activity or situation exists as a self-employed activity.

It is for the Member States alone to determine who is regarded as pursuing an activity as a self-employed person. If a Member State decides to subject certain categories of economically inactive persons to a social security scheme for self-employed persons, these categories of persons are pursuing an activity as a self-employed person within the meaning of the regulation.

In Member States which operate distinct, clearly-defined schemes for self-employed persons, it is fairly easy to determine who is pursuing an activity as a self-employed person for the purposes of the regulation. Other Member States, however, have general social security schemes which cover all residents or the whole working population. In those cases the notion of self-employed activity has to be inferred from another branch of social security which operates such a distinction.

It has to be noted that the definition of “activity as a self-employed person” has become less important as the personal scope of the current regulation includes all persons subject to the social security legislation of a Member State, irrespective of whether they are economically active or not. Nevertheless, the notion of “activity as a self-employed person” remains important in some respects, notably as regards the determination of the legislation applicable and the entitlement to family benefits.

When it comes to the rules on the determination of the legislation applicable, persons receiving cash benefits because or as a consequence of their activity as a self-employed person (e.g. sickness benefits, maternity benefits, unemployment benefits) are considered to be pursuing the said activity. However, this does not apply to invalidity, old-age or survivors' pensions or to pensions in respect of accidents at work or occupational diseases or to sickness benefits in cash covering treatment for an unlimited period.

Yes, this is possible, for the same reasons as stated in the answer to the question 55.1. The concepts of “activity as an employed” and “as a self-employed person” indeed refer to activities which are regarded as such for the purposes of the social security legislation of the Member State in which those activities are pursued. For instance, in Belgium, members of the board of directors are insured under a scheme for self-employed persons. In France, however, persons carrying out the same activity are insured under a scheme for employed persons. See also question 7.6.

When you reside or stay outside the competent State, you can receive sickness benefits in cash (i.e. benefits intended to replace income which is suspended because of the incapacity for work) in the Member State of residence or stay. The cash benefits are calculated in accordance with the legislation applied by the competent institution and are at its expense. They are provided by the competent institution, but that institution may agree with the institution in the State of residence or stay that the benefits be provided by the latter. Such agreement in no way affects the amount of benefits.

Where the legislation of the competent State provides that benefits are calculated on the basis of average income or an average contribution basis, the competent institution will determine such income or such basis only by reference to the income earning during the periods you completed under the legislation of the competent State. Likewise, where the amount of benefits is related to standard income, only standard income for the periods during which you were subject to the legislation of the competent State will be considered for calculation purposes.

Please refer to question 33.1.

56.3. Am I also entitled to other sickness benefits in cash than those related to incapacity of work under the regulation?

Yes, you are. Due to the rulings of the European Court of Justice also long-term care benefits in cash are coordinated as all other sickness benefits in cash. See the keyword long-term care benefits.
 

See the keyword medical care.

Simultaneous employment is the situation in which a person simultaneously or in alternation exercises one or more separate activities in two or more Member States for the same undertaking or employer or for various undertakings or employers.

Activities that are performed simultaneously covers cases where additional activities in different Member States are carried out simultaneously under the same or different employment contracts. The second or additional activity could be exercised during paid leave, during the weekend, or in the case of part-time work, two different activities for two different employers may be undertaken on the same day. For example, a shop assistant in one Member State would still be covered by this provision if he/she works as an employed taxi driver during the weekends in another Member State.

Activities that are performed in alternation covers situations where the activities are not carried out simultaneously over the territory of several Member States, but consists in successive work assignments carried out in different Member States, one after another. To determine if the activities are carried out during successive periods, not only must the anticipated duration of periods of activity be considered, but also the nature of the employment in question. It is not relevant how often this alternation takes place, but some regularity in the activity is required. For example, a business representative who year after year travels in a Member State, canvassing business for nine months, and for the remaining three months a year returns to his Member State of residence to work would be carrying out activities in alternation.

For the assessment, it is first of all important to establish whether, at the moment of the determination of the applicable legislation, periods of work in several Member States will follow each other with a certain regularity in the course of the following 12 calendar months. For the purpose of that assessment, the description of the nature of the work as evidenced by the employment contract(s) is of particular importance.

Secondly, the activities as described in the contract(s) should be consistent with the activities likely to be undertaken by the worker. If the assessment of the factual situation differs from the one based on the employment contract, the competent institution should base itself on the findings of the person’s actual situation, as assessed, and not on the employment contract.

A multi-state worker can only be affiliated to one social security scheme. To know which scheme applies, several factors are taken into account, such as the place of residence and/or the substantial nature of the business activities.

A Practical Guide on applicable legislation can be found here:
For the distinction between multiple activities and posting, the duration and nature of the activity in one or more Member States shall be decisive (whether it is permanent or of a one-off, ad hoc or temporary nature).

In principle no, it would not qualify as simultaneous employment

To avoid possible manipulation of the rules governing the applicable legislation, marginal activities are not taken into account for the determination of the applicable legislation on the basis of article 13 of Regulation 883/2004.

Marginal activities are activities that are permanent but insignificant in terms of time and economic return. It is suggested that, as an indicator, activities accounting for less than 5% of the worker’s regular working time and/or less than 5% of his/her overall remuneration should be regarded as marginal activities. Also the nature of the activities, such as activities that are of a supporting nature, that lack independence, that are performed from home or in the service of the main activity, can be an indicator that they concern marginal activities. A person who pursues “activities of a marginal extent” in one Member State and also works in another Member State, cannot be regarded as normally pursuing an activity in two or more Member States and is therefore not covered by article 13 of Regulation 883/2004. In this situation, the person is treated, for the purpose of determining the applicable legislation, as having an activity in one Member State only. If the marginal activity generates social security affiliation, then the contributions shall be paid in the competent Member State for the overall income from all activities. This helps to avoid misuse if, for instance, a person is obliged to work for a very short period in another Member State to circumvent the legislation of the ‘first’ Member State becoming applicable. In such cases, the marginal activities shall not be taken into account when determining the applicable legislation. Marginal activities have to be assessed for each Member State separately and cannot be aggregated.

There are special rules for persons normally working in two or more Member States. These rules are laid down in Article 13 of Regulation 883/2004. The rules are designed to ensure that the social security legislation of only one Member State is applicable at a time.

In the situation where a person normally pursues an activity as an employed person, the first step is to determine if a substantial part of a person’s activity is pursued in the Member State of residence. A substantial part of the activity pursued in a Member State means that a quantitatively substantial part of all the activities of the worker is pursued there, without this necessarily being the major part of those activities.

For the purposes of determining whether a substantial part of the activity of an employed person is pursued in a Member State, two criteria shall be taken into consideration:

• The working time; and/or;
• The remuneration.

If in the context of carrying out an overall assessment, it emerges that at least 25% of the person’s working time is carried out in the Member State of residence and/or at least 25% of the person’s remuneration is earned in the Member State of residence, this shall be an indicator that a substantial part of all the activities of the worker is pursued in that Member State.

If a substantial part of the activity is actually pursued in the Member State of residence, article 13 (1) provides that the legislation of the Member State of residence applies.

If this is not the case, then article 13(1) provides that a person normally working in two or more Member states is subject to:

1. The legislation of the Member State in which the registered office or place of business of the undertaking employing him/her is situated if s/he is employed by one undertaking or employer;
2. The legislation of the Member State in which the registered office or place of business of the undertakings employing him/her is situated if he/she is employed by two undertakings which each have their registered office or place of business in the same Member State;
3. The legislation of the Member State in which the registered office or place of business of the undertaking employing him/her is situated, other than the Member State of residence, if s/he is employed by two undertakings, one of which has its registered office in the Member State of residence and the other in another Member State;
4. The legislation of the Member State of residence if she/he is employed by various undertakings of various employers whose registered offices or places of business are in different Member States outside the country of residence.
5. If a person pursues his/her activity as an employed person in two or more Member States on behalf of an employer established outside the territory of the European Union, and if the person resides in a Member State without pursuing substantial activity there, s/he shall be subject to the legislation of the Member State of residence.

There is a special rule for persons normally self-employed in two or more Member States which provides that a person who is normally self-employed in two or more Member States is subject to:

• The legislation of the Member State of residence if s/he pursues a substantial part of her/his activity in that Member state;
• The legislation of the Member State in which the centre of interest of her/his activity is situated if s/he does not reside in one of the Member States in which s/he pursues a substantial part of her/his activity.

A substantial part of the self-employed activity pursued in a Member State of residence means that a quantitatively substantial part of all the activities of the self-employed person is pursued there, without this necessarily being the major part of these activities.

For the purpose of determining whether a substantial part of the activity of a self-employed person is pursued in a Member State, account must be taken of:

• The turnover;
• The working time;
• The number of services rendered; and/or;
• The income.

If in the context of carrying out an overall assessment, it emerges that a share of at least 25% of the above criteria are met, this is an indicator that a substantial part of all the activities of the person is pursued in the Member State of residence.

While it is obligatory to take into account these criteria, this is not an exhaustive list and other criteria may also be taken into account.

If a person does not reside in one of the Member States in which s/he pursues a substantial part of his/her activity, s/he shall be subject to the legislation of the Member State in which the centre of interest of her/his activities is located.

The centre of interest of activities should be determined by taking account of all the aspects of your occupational activities, notably the following criteria:

• The locality in which the fixed and permanent premises from which you pursue your activities is situated;
• The habitual nature or the duration of the activities pursued;
• The number of services rendered; and
• Your intention as revealed by all the circumstances.

In addition to the above criteria, when determining which Member State’s legislation is to apply, the assumed future situation in the following 12 calendar months must also be taken into account. Past performance can also be taken into account as far as it gives a sufficient reliable picture of your activity.

A person who normally pursues an activity as an employed person and an activity as a self-employed person in different Member States shall be subject to the legislation of the Member State in which s/he pursues an activity as an employed person.

The single digital gateway will facilitate online access to the information, administrative procedures and assistance services that citizens and businesses need to get active in another EU country. By the end of 2020, citizens and companies moving across EU borders will easily be able to find out what rules and assistance services apply in their new residency. By the end of 2023 at the latest, they will be able to perform a number of procedures in all EU Member States without any physical paperwork, like registering a car or claiming pension benefits.Regulation 2018/1724 was adopted on 2 October 2018. Citizens and businesses who are getting active in another EU country, will get online access to the information, administrative procedures and assistance services via the SDG. This SDG will guide citizens and companies to information on national and EU rules (e.g. on social security coordination), rights and procedures and the websites where they can carry out these procedures online.

More specifically, a search function on the ‘Your Europe’ portal will give access to:

• Information: reliable, qualitative information on EU and national rules applying to them when exercising the single market rights. For example, information on the relevant forms for social security purposes (A1-form, S1-form, etc.), information on the applicable social security scheme in case of a posting following Regulation 883/2004, etc.
• Procedures: how to carry out administrative procedures and what steps to follow;
• Assistance services: if there would still be issues, the users will be guided to the EU or national assistance service most suited to address the problem.

The Regulation also requires that more administrative procedures can be performed online than currently, by users in their own country and cross-border users. The goal for December 2023 is to :

• Have a list of 21 important administrative procedures available fully online in all the EU countries;
• Make all national online procedures fully accessible to cross-border users;
• Apply the once-only principle to cross-border exchanges of evidence for a range of procedures. This will make sure that users do not have to submit to authorities documents or data already held by other authorities. Users will be able to request the direct exchange of evidence between authorities in different Member States.

The Regulation concerning the Single Digital Gateway is ‘Regulation 2018/1724 establishing a single digital gateway to provide information, procedures, assistance and problem solving services’.

The regulation does not give an express definition of social assistance. Social assistance is generally understood as referring to benefits intended to guarantee a minimum means of subsistence to persons in need. The distinction between benefits which come within the scope of the regulation, on the one hand, and social assistance benefits, on the other, is a very difficult one to make. This is due, notably, to the fact that some of the traditional criteria characterising the latter benefits are not or no longer exclusive to social assistance. These criteria relate to the non-contributory nature of benefits, i.e. tax financed; not conditional upon periods of employment; and means-tested. The fact that a benefit is non-contributory or means-tested does not necessarily preclude it from being covered by the coordination regulation.

One traditional characteristic of social assistance benefits, i.e. its discretionary nature, rules out the classification of a benefit as a social security benefit. If, on the one hand, the granting of a benefit is conditional upon an assessment of individual needs or circumstances, the benefit cannot be regarded as a social security benefit for the purposes of the regulation. If, on the other hand, the authorities responsible for providing a benefit enjoy no discretionary power to assess personal needs or situations in deciding whether or not to grant it, and their involvement is confined to merely verifying fulfilment of the objective conditions for entitlement laid down by law, the benefit is a social security benefit, provided it relates to one of the risks expressly mentioned in the regulation. At the same time, it should be added that most minimum subsistence benefits in the Member States are nowadays no longer discretionary.

Mention should also be made here of a separate category of benefits, i.e. special non-contributory cash benefits. These benefits are neither social security benefits in the traditional sense nor social assistance benefits, but have links to both these categories. Special non-contributory benefits have to be classified as social security benefits within the meaning of the regulation and therefore are within its material scope, but they are governed by specific rules if these benefits are entered in the relevant annex to the regulation (Annex X to Regulation 883/2004). See the keyword special non- contributory cash benefit.

It follows from the above that the definition of social assistance benefits for the purposes of the coordination regulation is largely negative in nature, in the sense that it only social benefits which cannot be classified as social security benefits or special non-contributory cash benefits can qualify as social assistance.

The coordination regulation only applies to benefits covering the “traditional” risks of social security. These essentially correspond to the contingencies listed in ILO Convention No 102. The risks expressly mentioned in the regulation are sickness; maternity and equivalent paternity, invalidity, old-age, survivorship, accidents at work and occupational diseases, death, unemployment; pre-retirement and family care.

This list is exhaustive. Benefits covering other risks are in principle not within the scope of the coordination regulation. However, the Court of Justice has classified certain benefits relating to risks which are not as such listed in the regulation, as benefits that nevertheless fall within the scope of the regulation. It has, for instance, categorised benefits covering the risk of becoming reliant on care (long-term care benefits) as sickness benefits, after an assessment of the constituent elements of these benefits (see also the keywords material scope and benefit). On the other hand, benefits connected with the general risk of poverty, such as guaranteed minimum income benefits, are outside the scope of the regulation (see the keyword social assistance).

The connection of a benefit to one of the risks expressly mentioned in the regulation is not only important for determining whether the regulation applies, but also for determining which part of the regulation applies; as the various benefits are governed by different coordination rules.

Special non-contributory cash benefits are cash benefits which are halfway between traditional social security benefits and social assistance. They present characteristics of both categories, but belong – from a systemic point of view – to neither. They are linked to social security in that they create legally-defined rights connected to a social security benefit and relate to one of the risks covered by the coordination regulation. At the same time, they have links with social assistance, in the sense that they are non-contributory and intended to relieve a financial or personal need. Special non-contributory benefits come within the scope of the regulation, but are governed by specific rules (see questions 60.2 and 60.3).

In order for a benefit to be a special non-contributory cash benefit, it must fulfil a number of conditions:
 

• First, it must have a special character. This character is defined by its purpose. In particular, the benefit must be intended to provide either:
  • supplementary, substitute or ancillary cover against one of the risks covered by the branches of social security expressly mentioned in the regulation (see the keywords social security risks and benefits) and it must guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned (e.g. supplements to old-age pensions)
    Or
  • specific protection for disabled people, closely linked to the social environment of the said person in the Member State concerned
• Second, it must be non-contributory, which essentially depends on the way in which the benefit is financed. In particular, the benefit must be financed from compulsory taxation intended to cover general public expenditure. The conditions for providing and calculating the benefit should not be dependent on any contribution in respect of the beneficiary. The fact that a benefit is provided to supplement a contributory benefit does not necessarily imply that it is itself contributory in nature
• Third, it must be listed in an annex to the regulation (Annex X to Regulation 883/2004).

Each Member State has one or more entries in this annex. There are some 70 special non-contributory benefits. Examples are the Irish Jobseekers’ Allowance, the Slovenian State Pension, the Polish Social Pension and the Danish Accommodation Expenses for Pensioners.

Yes, you will lose entitlement to this benefit if you transfer your residence to another Member State. Special non-contributory cash benefits are only payable in the Member State where you reside and in accordance with its legislation. This is a major exception to the principle of export of benefits (see the relevant keyword), which is mainly justified by the fact that special non-contributory benefits are closely linked to the social and economic environment of the Member State under whose legislation they are provided.

Yes, there is, for the same reason that you cannot export the special non-contributory cash benefit to which you were entitled in your former country of residence, i.e. that payment of this kind of benefits is conditional upon the claimant residing in the territory of the State under whose legislation s/he is entitled thereto.

This implies that you have the right to receive a corresponding special non-contributory cash benefit from your new State of residence, provided there exists such a benefit and you meet the (non-discriminatory) conditions for granting laid down in that State’s legislation. The regulation provides for mechanisms to ensure that these conditions do not affect you more than they affect persons who have always been subject to the legislation of your new State of residence. These mechanisms include aggregation of periods (see the relevant keyword) and equal treatment of benefits. Accordingly, if the conditions for entitlement include the completion of periods of employment or residence in the territory of your new State of residence, the institution of that State must take into account periods of employment or residence completed in your former State of residence (or in any other Member State), as if they were completed on its territory. This means that if, for instance, the legislation of your new State of residence makes entitlement to a special non-contributory cash benefit subject to a two-year residence requirement, you would fulfil this condition as of the first day if you completed periods of residence under the legislation of any other Member State for a period of at least two years. Moreover, if the special non-contributory cash benefit which you claim is a supplement to a social security benefit, such as a minimum subsistence benefit supplementing an old-age pension, your new State of residence may not refuse such a supplement for the sole reason that you are not entitled to an old-age pension under its own legislation but only to a pension paid by your former State of residence (or by any other Member State). This is an application of the principle of equal treatment of benefits (see the keyword assimilation of facts).

As already indicated, in order to be able to claim special non-contributory benefits in the Member State to which you moved, you have to reside there. This means that the habitual centre of your interests must be situated in that State. A number of criteria must be taken into account in order to establish whether this is the case, whereby the length of your presence in the territory of the State concerned is not decisive, unlike your intention and the reasons which have led you to move (see the keyword residence). It follows from the above that the authorities of the State to which you moved could refuse to grant you a special non-contributory cash benefit if, for example, you went to that State to lend a hand with household and family tasks to a close relative living there and going through a very busy period, and you intend to return afterwards. If, on the other hand, you intend to remain in the State to which you moved and where your close relatives live, the authorities of that State cannot refuse to grant you a special non-contributory cash benefit on account of the fact that you have not yet been resident there for a certain period of time.

It is important to note that the legislation of your new State of residence may not provide for a special non-contributory benefit which is comparable to that which you received in your former home State. Even if it does, it is possible that, notwithstanding the mechanisms referred to above, you do not satisfy the objective and non-discriminatory conditions for grant laid down in the legislation of your new home State. In those cases, you will not be able to receive a corresponding benefit in your new State of residence. It is also possible that you receive a lower benefit than that which you previously received in your former State of residence. This is a consequence of the fact that the regulation does not harmonise the national social protection systems, but puts in place a coordination system (see the keywords harmonisation of social security and coordination of social security).

See the keyword residence.

A stateless person is a person who is not considered as a national by any State under the operation of its law. Their status is governed by the United Nations Convention relating to the Status of Stateless Persons, signed in New York on 28 September 1954.

Stateless persons are covered by the regulation on the same terms as Member State nationals, i.e. when they reside in a Member State and they are insured under the social security legislation of a Member State. Their family members and survivors are also covered. Moreover, their situation must not be confined in all respects within that Member State.

Structured electronic documents or SEDs are the instruments through which information will be exchanged electronically between national social security institutions under the EESSI system (electronic exchange of social security information, see the relevant keyword). They replace the paper E-forms that were used for the communication between the institutions under the former regulations.

The format and the content of the SEDs and the structure of the exchanges is established by the Administrative Commission on the Coordination of Social Security Systems (see the relevant keyword), on advice of the Technical Commission attached to it. At the latest by the end of the transitional period for the EESSI, i.e. by 30 April 2014, all information needed by the institutions involved to establish your entitlement to benefits and the quantum thereof, will be exchanged via these SEDs (until that period, so-called “paper SEDs” may be used). Seen from that perspective, they are very important for your social security situation. However, to the extent that the SEDs will be exchanged exclusively between social security institutions, you will not have to deal personally with them and therefore they do not directly concern you.

The introduction of the SEDs and the replacement of the paper E-forms do not mean that there will no longer be material forms. A series of EU-wide standard forms, called portable documents (see the relevant keyword) has been developed. Such forms, issued by a competent institution, attest to a certain entitlement or affiliation and may be physically shown by the insured person to the authorities of a Member State.

See also the keyword electronic exchange of social security information.

In order to establish who is a survivor, reference must be made to the legislation of the Member State under which benefits are provided.

The coordination rules apply to survivors of persons who come within the personal scope of the regulation (see the keywords personal scope), including survivors of third-country nationals to whom the coordination rules apply – by virtue of their own legal status – on the strength of the separate regulation extending the scope of these rules to this category of persons (see the keyword third-country nationals). It is not necessary, for these survivors to be covered by the coordination rules, that they be nationals of the EU/EEA Member States or Switzerland.
Moreover, if the deceased person was a person who has been subject to the legislation of one or more Member States, the survivor is covered by the coordination regulation, provided s/he is a Member State national (or a refugee or stateless person), even though the deceased was not covered by this regulation on account of his nationality of a third country.

Survivors used to be able to claim only derived rights, i.e. rights acquired through their status as survivor of a worker, not rights of their own which they enjoy without any relation of kinship with the worker (see the keyword derived benefit). In other words, survivors could only rely on the coordination rules in respect of benefits which were specifically intended for them, such as survivors’ benefits.

The scope of rights which survivors can claim was broadened by the European Court of Justice already under the old regulation. Since then, survivors can rely on all provisions of the coordination regulation, except those provisions which are applicable solely to workers, such as the articles dealing with unemployment benefits.

The coordination rules governing survivors’ pensions are identical to those governing old-age pensions. Please see the keyword old-age pensions.