Persons who want to work in a country of the European Union other than Poland often ask the question posed in the title of this article. We will try to answer it. It’s extremely important to know what an A1 certificate is and the lack of knowledge in this field can result in serious consequences.

1. Purpose of issuing the certificate

An appropriate social security scheme shall be determined for each person seconded to work within the European Union. This information allows to pay social security contributions in accordance with the rules and in the amount determined by the legislation of the country whose social security system applies to the posted person.

The rules for determining the appropriate law in the field of social security are specified in Union legislation, i.e.: Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (Text with relevance for the EEA and for Switzerland) (OJ L 166, 30.4.2004, p.1, as amended), hereinafter referred to as Regulation No 883/2004 and Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (Text with relevance for the EEA and for Switzerland) (OJ L 284, 30.10.2009, p. 1, as amended), hereinafter referred to as Regulation No 987/2009.

The competent national authorities deal with determining the appropriate social security scheme. The Social Insurance Instituion (Zakład Ubezpieczeń Społecznych – ZUS) is such an authority in Poland.

The certificate A1 constitutes the document allowing to determine the social security scheme which applies to a given person. According to its content, the natural person mentioned there is subject to the social security system of the country that issued the attestation. If he/she works in a State other than the one indicated in the document, the social security scheme in the country where he/she works doesn’t concern him/her and social security contributions are paid by the rules in force in the State that issued the certificate. In the event that the A1 certificate isn’t obtained, social security contributions shall be paid in the country of actual work.

2. How to obtain an A1 certificate?

The A1 certificate is issued on request. It may be in paper form or sent by post or presented by the interested party in person to the appropriate ZUS office. It’s also possible to submit the application electronically via the ZUS PUE platform.

A request for a certificate can be made by:

  • the worker,
  • the employer,
  • a self-employed individual.

3. Types of A1 certificate

The Union legislation allows to distinguish several types of A1 certificate. The most common ones include:

  • A1 certificate issued in connection with the secondment of employees to working in an employed capacity in another Member State;
  • A1 certificate issued in connection with the temporary transfer of a self-employed activity to the territory of another Member State;
  • A1 certificate granted in connection with the simultaneous or alternate performance of an activity as an employed person in the territory of two or more Member States;
  • A1 certificate granted in connection with the simultaneous or alternate self-employed activity in the territory of two or more Member States.

Due to the size of this publication, we will briefly discuss the above-mentioned types of attestations. However, it should be mentioned that the following A1 certificates also exist:

  • A1 certificate issued to civil servants;
  • A1 attestation issued to seafarers;
  • A1 document granted to members of the flight or cabin crew;
  • A1 certificate issued in connection with the simultaneous or alternate pursuit of an activity as an employed person in Poland or as a self-employed person in another Member State;
  • A1 attestation granted to civil servants who work in an employed capacity or pursue a self-employed activity in one or several Member States;
  • A1 documents issued to contract staff of the European Communities;
  • A1 certificates issued after an exceptional agreement concluded by ZUS with the institution of the country where the work is performed;
  • A1 attestations granted in connection with a change in the previously issued certificate.

4. A1 certificate issued in connection with the secondment of employees to working in an employed capacity in another Member State

According to Article 12(1) of Regulation No 883/2004: A person who performs an activity as a salaried employee in a Member State on behalf of the employer normally conducting his/her activities there and who is posted by that employer to another Member State to perform work on this employer’s behalf remains subject to the legislation of the first Member State, provided that the expected time of such work doesn’t exceed 24 months and that this person isn’t sent to replace another seconded one.

The condition for issuing the type of certificate in question is the existence of a direct relationship between the posted worker and the employer. The employer who posts should also be entitled to determine the “nature” of work performed be the seconded employee. Moreover, the worker can’t be put at the entrepreneur’s disposal in the country of secondment and the work has to be performed for the posting employer.

ZUS will issue an A1 certificate on the basis of Article 12(1) of Regulation No 883/2004 if the posting employer conducts normal activity in Poland. It’s about the activity whose significant part of is conducted in Poland and this is not an activity related to the internal regulation (Article 14(2) of Regulation No 987/2009). In order to determine whether a substantial part of the activity is carried out in Poland, the following criteria are taken into account in particular:

  • the number of employees working in Poland and abroad,
  • the number of contracts executed in Poland and abroad,
  • the value of turnover generated by the the posting employer in Poland and abroad.

The A1 certificate referred to in Article 12(1) of Regulation No 883/2004 can’t be granted in the event that a seconded worker is to replace another posted employee. However, there is an exception to this rule. It’s possible to replace a person who has previously been seconded provided that the posting period of the replaced person hasn’t ended.

In the event that the employe was engaged for the sole purpose of the posting, he/she should be subject to the Polish social security system for at least one month before the start of secondment.

The type of A1 certificate in question can be issued for a maximum of 24 months.

5. A1 certificate issued in connection with the temporary transfer of a self-employed activity to the territory of another Member State

Article 12(2) of Regulation No 883/2004 provides for the rules for determining the appropriate social security legislation for a person who temporarily transfers his/her self-employed activity to the territory of another Member State. According to this provision, a person who normally conducts a self-employed activity in a Member State and goes to another Member State to perform a similar activity there is subject to the legislation of the first country.

A person who wants to obtain an A1 certificate on the basis of Article 12(2) of Regulation No 883/2004 should show that he/she normally conducts a self-employed activity on the territory of Poland. This means that he/she has to prove the fact of carrying out this activity before the submission of the request for the A1 document. Moreover, during the period of temporary activity in another EU State, he/she should meet the requirements of the Republic of Poland for running the activity after the return (Article 14(3) of Regulation No 987/2009).

The person applying for the type of A1 certificate in question must also prove that the activity performed in another Member State will be similar to that one provided in Poland. It’s about the real nature of this activity and not about its classification as work in an employed capacity or as self-employed activity by another Member State (Article 14(4) of Regulation No 987/2009).

The expected duration of temporary job in another Member State can’t exceed 24 months.

6. A1 certificate granted in connection with the simultaneous or alternate performance of an activity as an employed person in the territory of two or more Member States

Pursuant to Article 13(1) of Regulation No 883/2004, a person who performs an employed activity in two or more Member States can apply for the A1 certificate. It results from this provision that:

a) a person performing a substantial part of the work in the country of residence is subject to the legislation of the Member State of residence;

b) a person who doesn’t carry out a substantial part of the work in the Member State of residence is subject to:

i. the legislation of the Member State where the head office or place of business of the undertaking or employer is situated – if he/she is employed by one enterprise or one employer; either

ii. the legislation of the Member State where the head office or place of business of undertakings or employers is situated – in the case of persons engaged by at least two enterprises, or at least two employers whose head office or place of business is located in one Member State; either

iii. the legislation of the Member State where the head office or place of business of undertaking or employer is situated, other than the Member State of residence – this concerns a person enagaged by at least two or more enterprises or at least two or more employers whose head office or place of business is located in two Member States and one of which is this person’s Member State of residence; either

iv. the legislation of the Member State of residence – in the event that a person is engaged by two or more enterprises either two or more employers, and at least two of these undertakings or employers have the head office or place of business in different Member States other than the Member State of residence.

In order to obtain the A1 certificate from Article 13(1) of Regulation No 883/2004, it’s necessary to demonstrate that the worker normally pursues an activity as an employed person in two or more Member States. It results from Article 14(5) of Regulation No 987/2009 that a person “normally performing an activity as an employed person in two or more Member States” means this one who:

a) while continuing to work in one Member State, simultaneously performs a separate activity in one or more other Member States, regardless of the duration or nature of that different work;

b) continuously pursues alternating several types of work, with the exception of marginal activities, in two or more Member States, regardless of the frequency of such alternation or its regular nature (Article 14(5) of Regulation No 987/2009).

It’s unambiguously clear from this provision that marginal activities performed in another Member State aren’t taking into account when issuing the certificate. Marginal activities constitute those ones whose working time, nature and remuneration are of minor importance in relation to working in an employed capacity at the same time. This is an activity that takes up less than 5% of regular working time or less than 5% of the employee’s total salary.

When determining the applicable legislation, it’s extremely important in which country the substantial part of the work is carried out. It’s about a quantitatively substantial part of the work. However, it doesn’t have to be predominant (Article 14(8) of Regulation No 987/2009). Evalutation is based on the working time and remuneration. It’s assumed that if both working time and salary in the country concerned are less than 25%, a significant part of work isn’t performed there.

It should be noted that a person applying for an A1 certificate from Article 13(1) of Regulation No 883/2004 should attach the planned working schedule to the request. This document should specify the expected work schedule for the period for which the attestation is to be issued. If an employee has already obtained an A1 certificate from Article 13(1) of Regulation No 883/2004, the application should be accompanied by an archival schedule showing the distribution of working time during the period covered by the previous attestation.

The type of A1 certificate in question is issued for a maximum period of 12 months.

7. A1 certificate granted in connection with the simultaneous or alternate self-employed activity in the territory of two or more Member States

Article 13(2) of Regulation No 883/2004 constitutes the basis for the issue of a certificate for a person who simultaneously or alernately performs self-employment in the territory of two or more Member States. In order to obtain this document, it must be shown that the self-employed activity is normally carried out in two or more EU countries. This is a situation where the applicant simultaneously or alternately carries out one or more separate types of self-employed activity, regardless of the nature of this work, in two or more Member States (Article 14(6) of Regulation No 987/2009). If the condition in question is fulfilled, the applicant is subject to the legislation:

a) of the Member State of residence in the event that he/she performs a substantial part of his/her work in that Member State or

b) of the Member State in which the centre of interest for his/her activities is located in the event that this person doesn’t reside in one of the Member States where he/she performs a substantial part of his/her work.

The “performance of a substantial part of the self-employed activity” constitutes the first criterion that is examined when determining the applicable legislation on the basis of Article 13(2) of Regulation No 883/2004. This type of work is considered to be a quantitatively substantial part of employed or self-employed activity in the Member State concerned. However, it doesn’t have to be the largest part of this work (Article 14(8) of Regulation No 987/22009). In order to determine whether this criterion is fulfilled, the following elements are examined: turnover, working time, number of services provided, income (Article 14(8) of Regulation 987/2009). If, in a given country, the indicated criteria are fulfilled to an extent of less than 25%, it’s assumed that a substantal part of self-employed activity isn’t performed in that State.

It may happen that the person concerned doesn’t carry out a substantial part of his/her work in the country of residence. In this case, ZUS determines where the centre of interest for the conducted activity is located. It shall be specified taking into account all aspects of the occupational activities and, in particular, the place where the permanent place of business is located, the habitual nature or the duration of the activities pursued, the number of services provided and the intention of this person concerned resulting from all the circumstances (Article 14(9) of Regulation 987/2009). Therefore, it’s necessary to take into account the totality of the circumstances of the case.

The application for this type of certificate should be accompanied by the planned work schedule for the period for which the A1 document is to be granted.

The A1 attestation from Article 13(2) of Regulation No 883/2004 can be issued for a maximum period of 12 months.

8. Legal notice

The study is a work within the meaning of the Act of 4 February 1994 on Copyright and Related Rights (OJ 2006, No. 90, item 631, consolidated text, as amended). Publishing or reproducing this study or its part, quoting opinions, as well as disseminating in any other way the information contained therein without the written consent of Crede sp. z o.o. is prohibited.

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