From January 2019, employees will now generally need to carry an A1 form whenever they are normally working in, or posted to, other EEA countries in order to avoid liability for social security contributions and potential fines.

In general, an employee pays social security contributions to the country they are working in. However, employees from an EEA country working in another EEA country may continue paying social security contributions in their home country and will be exempt from paying contributions in the other countries where either:

• the work abroad is not expected to be for more than 24 months; or
• they normally work in 2 or more EEA countries (multi-state workers)

The EEA includes all countries in the European Union (EU) and Norway, Iceland and Liechtenstein. Switzerland is not an EEA member but an agreement between Switzerland and the EU means that the same rules also apply there.

Workers can prove that they pay social security contributions in another EEA country and cannot be required to pay social security contributions in the country where they are working by presenting a Form A1 to the competent authorities.  The employer can obtain a Form A1 from the home country social security authorities which will keep the employee with the ambit of their home country social security and will absolve both the employer and employee from making any social security contributions in the host country for the period covered by the certificate.

The requirement to have a Form A1 when working in the EEA has been in place for many years,  even in the case of short business trips to another country. Legislation and case law do currently not provide for a minimum time or differentiation between short-term business travel and fixed-term transfers with a longer  duration. In general, employers try to comply with existing legislation. However, some employers send their employees on short business trips without the A1 and, if authorities in the host Member State require presentation of a Form A1, apply for a certificate retroactively.

However, the authorities in a number of EEA countries have increased their scrutiny over the past weeks and months. France and Austria in particular have tightened up the relevant regulations and increased controls in the past months. In Germany, the Federal Ministry of Labour and Social Affairs previously considered it appropriate to refrain from applying for the A1 in advance in cases where international meetings were planned at short notice or for a planned duration of up to one week, with the option to apply retrospectively for the A1. A corresponding bulletin had been provided to the employers` associations. However, due to the increased scrutiny in France and Austria the Federal Ministry of Labour and Social Affairs has taken the bulletin off their website. While we believe that in substance not every crossing of the border to a Member State qualifies as working in that Member State, the current administrative practice of many EEA countries makes it advisable  that employers apply for the A1 even in cases of very short transfers.

If a Form A1 is not obtained from the home country authorities or the period covered by the Form A1 lapses, social security contributions will potentially be payable in both the home country and the host country and there can be significant fines. If an employee travels and gets caught without such certificate, he would be sent home by the authorities and a fine of could be imposed upon the employer (up to EUR 10,000 per violation in Germany). It may also be necessary to repay social security contributions if authorities take the view that the employee should have been subject to the social security system of the other EU member state.

How to apply for Form A1

Generally, the individual employee`s health insurance provider is competent for issuing the Form A1. In case the employee is insured with a private health care provider, the application needs to be filed with the Public Pension Insurance Fund. The application should be filed electronically.

How to apply for Form A1 in case of multi-state workers

There are special forms available for so called multi-state workers, i.e. employees who “normally work” in several Member States. This is the case if they regularly work in another Member State for at least one day per month or for at least five days per quarter. The respective period to be viewed is the upcoming next 12 months, to the best of the employer’s and employee’s knowledge. If the work situation for the next 12 months is not certain, the past 12 months may be used as experience value.

The Member State in which the employee lives (State of residence) is responsible for determining the applicable legislation in each individual case. In Germany, the authority to determine the applicable legislation for employees that are normally working in several Member States lies with the National Association of Statutory Health Insurance Funds – German Liaison Office Health Insurance Abroad  (Spitzenverband der gesetzlichen Krankenversicherungen – Deutsche Verbindungsstelle Krankenversicheung Ausland, “DVKA”).

In order to enable the DVKA to determine the applicable legislation, the DVKA provides questionnaires to be filled out and sent to the DVKA. The questionnaire for employers based in Germany (GME1 questionnaire, in German) can be downloaded at:

https://www.dvka.de/media/dokumente/antraege_av_gme/gewoehnliche_erwerbstaetigkeit/GME_13_1_dt_AG_Online.pdf

Step Plan A1 form:

 

• Determine, whether employees are “normally working” in several Member States

 

• Fill out the GME1 questionnaire (use fillable form fields to ensure readability and avoid a prolonged process)

 

• Both, employer and respective employee, need to sign the questionnaire

 

• Submit the questionnaire to the DVKA

 

• The DVKA will usually issue a statement of receipt of the questionnaire within a couple of weeks.

 

• The A1 form will then be sent to the employee.

 

The timing of the final issuing cannot be foreseen. Currently, there are quite a lot of applications filed with the DVKA, which leads to a slowed down process. Additionally, the number of Member States the application is filed for, also plays an important role regarding the time the DVKA will need to issue the A1 form. Nevertheless, employees may generally already be able to work in the respective Member States prior to being issued the final A1 form. In order to do so, employees would need to carry with them the filled out questionnaire GME1 (application for A1 form) and an up-to-date pay slip. Those documents are then to be presented in case of inspection. After the statement of receipt has been issued by the DVKA, the statement of receipt may instead be carried and presented in case of inspection.