Posting workers to the neighbouring country

People who live in Germany and work in the Netherlands or vice versa are granted the so-called status of cross-border worker. A cross-border worker (also cross-border commuter) is an employee or self-employed person who works in one EU Member State and lives in another EU Member State and returns there in principle every day or at least once a week. Cross-border workers are subject to European law.

EU Regulations 883 of 2004 and 987 of 2009 set out which national law applies when you live in one country and work in another country or countries. The basic rule is that the social security legislation of the country of work applies.

If one works in several countries, including the country of residence, then the following basic rules apply:

• If the working time in the country of residence is more than 25% with the same employer, the social security legislation of the country of residence applies.
• If you work for two or more employers in different EU countries, the 25% rule also applies.
• If you work for an employer in the country of residence and you work in another EU country, the social security legislation of the country of residence applies.
• If you work as a self-employed person in several countries, you are also affected by this regulation.

There are exceptions for so-called “travelling personnel†(inland waterway transport, long-distance journeys). If you work on a ship, the basic rule is that the social security legislation of the country where your employer is based applies. Note, however, that there are exceptions here too!!!

Another special case is when the employee is posted to another country. In such a case, the country of residence can issue a certificate of posting (form A1) to the employer, whereby the social security legislation of the employee’s country of residence continues to apply. Posting is possible for a maximum period of 12 months and can be extended once.

If it is known from the beginning that the posting will last longer than 12 months, a posting certificate can be issued for a maximum period of two years. This statement is then considered an exemption. The exception regulation can also be used if you work in several countries and do not want to be covered by the social security legislation of the country of residence.

The following conditions apply to a certificate of posting:

• You are insured in the national social security system of your country of residence immediately before the posting;
• You are in an employment relationship with the employer who is posting you;
• Your salary continues to be paid by the employer in your country of residence;
• Your posting does not last longer than 12 months;
• You are not posted as a replacement for a colleague whose 12-month posting ended previously;
• Your employer carries out substantial activities in your country of residence.

To be eligible for a posting certificate as a self-employed person, you must meet the following conditions:

• You are insured in the social security system of your country of residence immediately before the posting;
• You have the nationality of an EU or EEA state or you are stateless or a refugee;
• Your posting does not last longer than 12 months;
• You carry out substantial activities in your country of residence.

For further information on the certificate of posting, please contact the “Deutschen Verbindungsstelleder Kranken- und Pflegeversicherung Ausland (DVKA)†in Germany and the “Sociale Verzekeringsbank (SVB)†in the Netherlands. You can download the application forms for the certificate of posting on the respective websites. There you will also find further information on international insurance law.

Reporting obligation for foreign companies when posting staff to the Netherlands

Starting on 1 March 2020, companies established outside the Netherlands that temporarily post employees to the Netherlands will be subject to a reporting obligation. The reporting obligation also applies to self-employed persons established outside the Netherlands who work temporarily in the Netherlands if the activities to be performed belong to one of the designated economic sectors.

Obligation to register for service providers

Are you an employer established in Belgium or Germany

• who comes to the Netherlands with your own staff;
• a multinational company that posts employees to its own subsidiary in the Netherlands;
• a temporary employment agency that employs temporary workers in the Netherlands; or
• a self-employed person subject to registration?

You must report temporary activities starting on or after 1 March 2020 online via the website www.postedworkers.nl. This can be done as early as 1 February 2020.

Obligation to control the beneficiaries

Are you a company based in the Netherlands that contracts a company or self-employed person from Belgium or Germany? From 1 March 2020, you as a client or customer have an obligation to check. You are obliged to check whether these temporary workers are registered. For more information and online reports, please visit www.postedworkers.nl.

Relocation regulation for the withholding of income taxes

Are you posting an employee to a Dutch part of your group or will he work for you in the Netherlands? In this case, you are in principle liable to withholding. You can ask the Dutch tax office whether the Dutch part of your group is allowed to withhold income tax. This is called the relocation rule.

In order to be able to apply the relocation rule, you and the Dutch part of the group must submit an application to the tax office that is responsible for the Dutch part of the group.

You can find out more about this here: Dutch tax office (German language)