Brexit: derogation provisions for posted workers

In circular no. 71 of 27 April 2021, INPS transposed the Agreement on Trade and Cooperation between the European Union (EU) and the European Atomic Energy Community, and the United Kingdom of Great Britain and Northern Ireland (TCA).

The agreement sets the conditions for cooperation between the participating countries and regulates certain areas, including social insurance, starting from 1 January 2021.

Pending examination of the agreement by the European Parliament, the participating countries have agreed to apply it provisionally from 1 January 2021 until 30 April (initially 28 February 2021). Specifically for the social security area, the coordination rules are contained in the relevant Protocol, which forms an integral part of the TCA and is valid for 15 years from its entry into force.

The Protocol recognises the possibility of derogating from the general provisions to define the applicable legislation by including the case of posting.

The Protocol requires that the posted worker remains subject to the State legislation where they habitually carry out their work, provided that:

1. the work duration does not exceed 24 months and a person does not replace another posted worker;
2. a self-employed person in one State who carries out a similar work in another, remains subject to the legislation of the first provided that the foreseeable duration of this work does not exceed 24 months.

Without prejudice to any bilateral agreements, the agreement does not allow this period to be extended.

These rules only apply to Member States, such as Italy, which have notified the EU of their intention to derogate from the general provisions ( Category A States).

According to INPS, periods of posting authorised before the entry into force of the TCA must be considered for the calculation of the uninterrupted posting period under Art. 12 of EC Regulation no. 883/2004. The duration of the uninterrupted posting cannot exceed 24 months, including periods before 2021. This is without prejudice to extending the posting by signing a derogating agreement under Art. 16 of the same Regulation (EC).

Any extensions of the posting authorised under Art. 16 before 1 January 2021 – in progress on that date – shall be valid until their natural expiry date. Other agreements signed before 1 January 2021, which derogate from the general provisions provided for by the previous Community legislation, shall remain valid until their natural expiry date.