Marginal EU work under 5% does not move social-security state

Work performed in another EU/EEA state or Switzerland that is marginal does not move the determination of which state's social-security legislation applies to a person working in several states.Telp The applicable legislation is determined as if the person worked only in the states where the work is more than marginal.Telp The disregard is laid down in Article 14(5b) of the implementing Regulation 987/2009Telp, applied to Article 13 of the basic Regulation 883/2004Telp, and its purpose is to stop marginal work from shifting the applicable legislation elsewhere.

Work counts as marginal when it is continuous but insignificant in time and in economic terms.Telp As guidance, work is marginal where its share of all of the person's work is under 5 per cent of regular working time and/or under 5 per cent of total payTelp, always assessed on the person's work as a whole; the nature of the work may also be taken into account.

The disregard changes mixed-role outcomes. A person who is ordinarily an employee in one EU state and self-employed in another falls under the employee state's legislation under Article 13(3)Telp — but where the employee work is marginal, it is disregardedTelp and the legislation follows the self-employmentTelp, as the Court of Justice confirmed in C-89/16 Sjoza. A person who is a civil servant in one EU state and an employee, self-employed person or grant recipient in another falls under the civil-servant state's legislation under Article 13(4)Telp — but where the civil-servant work is marginal, it is disregardedTelp and the legislation follows the other workTelp (EFTA E-26/25 Mohr-Egger). A full-time entrepreneur in Finland who works one day a month in Sweden for a Swedish employer is covered only by Finnish legislation; remote civil-servant work of no more than 10 days a year for a Swedish public employer, under 5 per cent of total working time, is likewise marginal, while a 20 per cent part-time civil-servant contract exceeds 5 per cent and is not marginal, so Swedish legislation applies under Article 13(4).

The disregard also interacts with posting and multi-employer cases. Where work in one state is marginal and the posting conditions are met, Article 12 can apply instead of Article 13Telp — for example, an employee posted by a Finnish employer to Sweden who also makes marginal trips to Norway below 5 per cent of total working time can be covered by an Article 12 A1 certificate. Where an employee performs no substantial part of the work in the residence state for employers sitting in at least two other EU states, a marginal employer's state is droppedTelp: a person living in Finland and working for Finnish, Swedish and Estonian employers, with the Estonian work marginal, is assessed as if working only for the Finnish and Swedish employers, so Swedish legislation applies, Sweden issues the A1 certificate and all employers must arrange coverage under Swedish legislation.

Notification and contributions apply even to marginal work: the person must always notify the residence stateTelp, which determines the applicable legislation under the Article 16 procedureTelp; the state whose legislation applies issues the A1 certificateTelp, and statutory contributions on marginal work go to that state where its legislation so requiresTelp. The disregard has applied since 28 June 2012Telp; between 1 May 2010 and 27 June 2012 it covered only single-employer cases, and work begun before 28 June 2012 may fall under transitional provisions.

Legal basis: Regulation (EC) No 883/2004, Articles 12 and 13; Regulation (EC) No 987/2009, Articles 14(5b) and 16; C-89/16 Sjoza; EFTA E-26/25 Mohr-Egger.