Since 2017, a new law and application rules regulate the seconding of employees (EE) in the context of cross-border services.
These contain among others, criteria for checking whether or not a cross border secondment actually exists.
What is a cross border secondment?
The following actions of a company fall under Romania’s Secondment Law:
- Secondment of an EE by an employer (ER) and under its direction to a Member State under a contract with the recipient of the services located in that other State;
- Secondment of an EE to an affiliated entity in another Member State;
- Secondment of a temporary worker by a temporary employment agency to a beneficiary company operating in another Member State.
The above actions apply both to inbound (secondment from elsewhere in the EU to Romania) and outbound cases (secondment from Romania to another Member State). The prerequisite is that the employment relationship between the employer and the seconded EE is maintained during the entire secondment period.
Criteria for determining an actual secondment
The new application rules of the Secondment Law set out fixed criteria by which the authority may assess the existence of a secondment. On the basis of these criteria, the Romanian authorities determine in international cooperation, a) whether the employer actually carries out essential activities (not just internal administrative activities) in Romania, and b) the nature and duration of the seconded EE’s tasks.
Here is an outline of the most important criteria:
- Criteria for assessing the posting company
- the place where the ER company has its headquarters and administration, uses office space, pays taxes and social security contributions;
- the place where seconded workers are employed and from which they are sent;
- the governing law of the contracts agreed between the ER and its employees and clients;
- the place where the company carries on its essential business activities and employs administrative staff;
- the number of contracts concluded in the Member State where the ER is established and/or the size of turnover achieved in that State;
- the business object of the ER and the subject matter of the contract concluded between the ER and the beneficiary.
- Criteria for assessing the work of the secondee
- The limited duration of the activities carried out in the host country;
- the nature of the activities and compliance with the subject matter of the inter-company service agreement;
- by whom and how the costs of travel, food and accommodation are borne;
- whether the seconded EE returns to the Member State from which he was seconded when the provision of his secondment services has ended;
- previous periods in which the post was filled by the same or another EE.
The evaluation of these circumstances is done case by case. Failure to comply with one of these criteria does not automatically mean that the secondment in question does not exist.
If, after the overall assessment, it is determined that there is no actual secondment, there is no specific sanction stipulated in the law: the application rules state that in individual cases "legal measures" would be taken.
It can be however assumed that all the rights of the EE related to the assignment abroad can be questioned. This include the EE’s right to stay in the Romanian social security system (A1 form), the tax treatment applied to per-diems, travel and accommodation expenses etc, and where appropriate, the triggering of tax and social security charges.
The newly published criteria have brought Romanian secondment rules closer to EU social security law. Most of these criteria and related evidence have, for some time, been checked in the issue of A1 forms.
Non-compliance with the criteria usually leads to the rejection of the A1 application for the seconded EE. The specific integration of these criteria in the special legislation on cross border secondments is welcomed and should contribute to the prevention of abuse of the secondment rules.