Finally and further to more than nine months of negotiations, the United Kingdom and the European Union have reached on December 24th, 2020 an agreement regarding their relationships post-Brexit, entitled TRADE AND COOPERATION AGREEMENT BETWEEN THE EUROPEAN UNION AND THE EUROPEAN ATOMIC ENERGY COMMUNITY, OF THE ONE PART, AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, OF THE OTHER PART.
The Parties have agreed to provisionally apply this Agreement from 1 January 2021 provided that prior to that date, they have notified each other that they have fulfilled their respective domestic requirements and procedures for the Agreement to be provisionally applicable.
As of today, this agreement is between the European Union and the United Kingdom and it is published for information only: no rights may be derived from this agreement until its date of application. (In addition, please note that the current references below of the Articles are provisional).
Regarding the coordination of social security, the Agreement provides for a protocol whose aim is to guarantee a number of rights to individuals, including stateless persons and refugees, who are or have been subject to the legislation of one or more States, together with their family members and their survivors.
Overall, the provisions relating to the coordination of social security are rather close to the applicable European Regulations, notably they provide for the principle of unicity of the applicable social security legislation in some situations (Article SSC.10).
Article SSC.11 of the Agreement like Article 12 of the EU Regulation 883/2004 provides that a natural person who pursues an activity as an employed person in a State for an employer which normally carries out its activities there and who is sent by that employer to another State to perform work on that employer’s behalf, shall continue to be subject to the legislation of the first State, provided that (i) the duration of such work does not exceed 24 months and (ii) that person is not sent to replace another detached worker.
This possibility is also applicable to self-employed individuals for a maximum period of 24 months.
Moreover, whether the individual is salaried or non-salaried, there is no exceptional derogation beyond 24 months proposed in this agreement.
Nonetheless flexibility is left to each EU country as to whether or not they wish to apply this provision: the Agreement provides that the EU shall notify the United Kingdom by the date of entry into force of this Agreement, the position taken by each EU State as to whether the EU State wishes to apply, to derogate from (or has taken no decision) the General [social security] rules stated by Article 10 that notably includes the principle of unicity of the applicable social security legislation.
Pursuit of activities in the UK and one or more EU States
Similarly, Article SSC.12 of the Agreement is very close to Article 13 of the EU Regulation 883/2004 applicable to individuals performing their professional activity as an employee and as self-employed in the UK plus one or several EU States.
The Brexit-EU Agreement retains for this type of situation the same principles:
- The applicable social security legislation is the one of the State where the substantial activity is performed;
- The rule according to which the legislation of the State where the employed activity is performed, is the one exclusively applicable when the individual has both a self-employed activity and an employee’s activity in two or more States.