Council Regulation (EEC) No 1390/81 of 12 May 1981 extending to self-employed persons and members of their families Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community

‘1 The provisions of the legislation of any Member State which make admission to voluntary or optional continued insurance conditional upon residence in the territory of that State shall not apply to persons resident in the territory of another Member State, provided that at some time in their past working life they were subject to the legislation of the first State as employed or as self-employed persons.’

1 Subject to Article 14 (c), persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

2 Subject to Articles 14 to 17: (a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State; (b) a person who is self-employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State; (c) a person employed on board a vessel flying the flag of a Member State shall be subject to the legislation of that State; (d) civil servants and persons treated as such shall be subject to the legislation of the Member State to which the administration employing them is subject; (e) a person called up or recalled for service in the armed forces, or for civilian service, of a Member State shall be subject to the legislation of that State. If entitlement under that legislation is subject to the completion of periods of insurance before entry into or after release from such military or civilian service, periods of insurance completed under the legislation of any other Member State shall be taken into account, to the extent necessary, as if they were periods of insurance completed under the legislation of the first State. The employed or self-employed person called up or recalled for service in the armed forces or for civilian service shall retain the status of employed or self-employed person.

Article 13 (2) (a) shall apply subject to the following exceptions and circumstances: 1. (a) A person employed in the territory of a Member State by an undertaking to which he is normally attached who is posted by that undertaking to the territory of another Member State to perform work there for that undertaking shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of that work does not exceed 12 months and that he is not sent to replace another person who has completed his term of posting; (b) if the duration of the work to be done extends beyond the duration originally anticipated, owing to unforeseeable circumstances, and exceeds 12 months, the legislation of the first Member State shall continue to apply until the completion of such work, provided that the competent authority of the Member State in whose territory the person concerned is posted or the body designated by that authority gives its consent; such consent must be requested before the end of the initial 12-month period. Such consent cannot, however, be given for a period exceeding 12 months. 2. A person normally employed in the territory of two or more Member States shall be subject to the legislation determined as follows: (a) a person who is a member of the travelling or flying personnel of an undertaking which, for hire or reward or on its own account, operates international transport services for passengers or goods by rail, road, air or inland waterway and has its registered office or place of business in the territory of a Member State, shall be subject to the legislation of the latter State, with the following restrictions: (i) where the said undertaking has a branch or permanent representation in the territory of a Member State other than that in which it has its registered office or place of business, a person employed by such branch or permanent representation shall be subject to the legislation of the Member State in whose territory such branch or permanent representation is situated; (ii) where a person is employed principally in the territory of the Member State in which he resides, he shall be subject to the legislation of that State, even if the undertaking which employs him has no registered office or place of business or branch or permanent representation in that territory; (b) a person other than that referred to in (a) shall be subject: (i) to the legislation of the Member State in whose territory he resides, if he pursues his activity partly in that territory or if he is attached to several undertakings or several employers who have their registered offices or places of business in the territory of different Member States; (ii) to the legislation of the Member State in whose territory is situated the registered office or place of business of the undertaking or individual employing him, if he does not reside in the territory of any of the Member States where he is pursuing his activity. 3. A person who is employed in the territory of one Member State by an undertaking which has its registered office or place of business in the territory of another Member State and which straddles the common frontier of these States shall be subject to the legislation of the Member State in whose territory the undertaking has its registered office or place of business.

Article 13 (2) (b) shall apply subject to the following exceptions and circumstances: 1. (a) A person normally self-employed in the territory of a Member State and who performs work in the territory of another Member State shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of the work does not exceed 12 months; (b) if the duration of the work to be done extends beyond the duration originally anticipated, owing to unforeseeable circumstances, and exceeds 12 months, the legislation of the first Member State shall continue to apply until the completion of such work, provided that the competent authority of the Member State in whose territory the person concerned has entered to perform the work in question or the body appointed by that authority gives its consent; such consent must be requested before the end of the initial 12-month period. Such consent cannot, however, be given for a period exceeding 12 months. 2. A person normally self-employed in the territory of two or more Member States shall be subject to the legislation of the Member State in whose territory he resides if he pursues any part of his activity in the territory of that Member State. If he does not pursue any activity in the territory of the Member State in which he resides, he shall be subject to the legislation of the Member State in whose territory he pursues his main activity. The criteria used to determine the principal activity are laid down in the Regulation referred to in Article 97. 3. A person who is self-employed in an undertaking which has its registered office or place of business in the territory of one Member State and which straddles the common frontier of two Member States shall be subject to the legislation of the Member State in whose territory the undertaking has its registered office or place of business. 4. If the legislation to which a person should be subject in accordance with paragraphs 2 or 3 does not enable that person, even on a voluntary basis, to join a pension scheme, the person concerned shall be subject to the legislation of the other Member State which would apply apart from these particular provisions or, should the legislations of two or more Member States apply in this way, he shall be subject to the legislation decided on by common agreement amongst the Member States concerned or their competent authorities.

Article 13 (2) (c) shall apply subject to the following exceptions and circumstances: 1. A person employed by an undertaking to which he is normally attached, either in the territory of a Member State or on board a vessel flying the flag of a Member State, who is posted by that undertaking on board a vessel flying the flag of another Member State to perform work there for that undertaking shall, subject to the conditions provided in Article 14 (1), continue to be subject to the legislation of the first Member State. 2. A person normally self-employed, either in the territory of a Member State or on board a vessel flying the flag of a Member State and who performs work on his own account on board a vessel flying the flag of another Member State shall, subject to the conditions provided in Article 14a (1), continue to be subject to the legislation of the first Member State. 3. A person who, while not being normally employed at sea, performs work in the territorial waters or in a port of a Member State on a vessel flying the flag of another Member State within those territorial waters or in that port, but is not a member of the crew of the vessel, shall be subject to the legislation of the first Member State. 4. A person employed on board a vessel flying the flag of a Member State and remunerated for such employment by an undertaking or a person whose registered office or place of business is in the territory of another Member State shall be subject to the legislation of the latter State if he is resident in the territory of that State; the undertaking or person paying the remuneration shall be considered as the employer for the purposes of the said legislation.

1. A person who is employed simultaneously in the territory of one Member State and self-employed in the territory of another Member State shall be subject: (a) to the legislation of the Member State in the territory of which he is engaged in paid employment, subject to subparagraph (b); (b) in the instances referred to in Annex VII, to the legislation of each of these Member States, as regards the activity pursued in its territory. 2. The detailed rules for implementing subparagraph (b) of paragraph 1 shall be laid down in a Regulation to be adopted by the Council on a proposal from the Commission.

1. The person referred to in Article 14 (2) and (3), Article 14a (2), (3) and (4) and Article 14c (1) (a) shall be treated, for the purposes of application of the legislation laid down in accordance with these provisions, as if he pursued all his professional activity or activities in the territory of the Member State concerned. 2. The provisions of the legislation of a Member State under which a pensioner who is pursuing a professional or trade activity is not subject to compulsory insurance in respect of such activity shall also apply to a pensioner whose pension was acquired under the legislation of another Member State, unless the person concerned expressly asks to be so subject by applying to the institution designated by the competent authority of the first Member State and named in Annex 10 to the Regulation referred to in Article 97.’

Two or more Member States, the competent authorities of those States or the bodies designated by those authorities may, by common agreement, provide for exceptions to the provisions of Articles 13 to 16 in the interests of certain categories of employed or self-employed persons, or of certain such persons.’

1 For the purposes of Articles 28, 28a, 29 and 31, a pensioner who is in receipt of two or more pensions due under the legislation of a single Member State shall be regarded as a pensioner entitled to draw a pension under the legislation of one Member State, within the meaning of these provisions.

2 Articles 27 to 33 shall not apply to a pensioner or to members of his family who are entitled to benefits under the legislation of a Member State as a result of pursuing a professional or trade activity. In such a case, the person concerned shall, for the purposes of the implementation of this Chapter, be considered as an employed or self-employed person or as a member of an employed or self-employed person's family.’

1 No right shall be acquired under this Regulation in respect of a period prior to the date of its entry into force.

2 All insurance periods and, where appropriate, all periods of employment, of self-employment or of residence completed under the legislation of a Member State before the date of entry into force of this Regulation shall be taken into consideration for the determination of rights to benefits under this Regulation.

3 Subject to paragraph 1, a right shall be acquired under this Regulation though relating to a contingency which materialized prior to the date of entry into force of this Regulation.

4 Any benefit which has not been awarded or which has been suspended by reason of the nationality or place of residence of the person concerned shall, on the application of the person concerned, be awarded or resumed with effect from the entry into force of this Regulation provided that the rights previously determined have not given rise to a lump sum payment.

5 The rights of a person to whom a pension was awarded prior to the entry into force of this Regulation may, on the application of the person concerned, be reviewed, taking into account the provisions of this Regulation. This provision shall also apply to the other benefits referred to in Article 78 of Regulation (EEC) No 1408/71.

6 If an application referred to in paragraph 4 or 5 is submitted within two years from the date of entry into force of this Regulation, the rights acquired under this Regulation shall have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture or limitation of rights may not be invoked against the persons concerned.

7 If the application referred to in paragraph 4 or 5 is submitted after the expiry of the two-year period following the date of entry into force of this Regulation, rights which have not been forfeited or are not barred by limitation shall have effect from the date on which the application was submitted, except where more favourable provisions of the legislation of any Member State apply.

Unless the Member States concerned decide otherwise, the agreements concluded pursuant to Article 36 (3), Article 63 (3) and Article 70 (3) of Regulation (EEC) No 1408/71, prior to the entry into force of this Regulation, shall not apply to the persons to whom the scope of Regulation (EEC) No 1408/71 has been extended by virtue of this Regulation.

This Regulation shall enter into force on the first day of the seventh month following the publication in the Official Journal of the European Communities of the Regulation adapting Regulation (EEC) No 574/72 with a view to applying it to self-employed persons and to their families.