NIM33080 - Special Cases: International going to or coming from abroad EEA Regulations 883/04 (After 1 May 2010): Meaning of “Which normally carries out its activities there”

Note: This page is under review and the content may only be appropriate to periods beginning before 1 January 2021 and for those covered by a Withdrawal Agreement

Article 12 of Regulation 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems

The expression “which normally carries out its activities there” means an undertaking which ordinarily carries out substantial activities in the territory of the Member State in which it is established. If the undertakings activities are confined to internal management, the undertaking will not be regarded as normally carrying out its activities in that Member State. In determining whether an undertaking carries out substantial activities, account must be taken of all criteria characterising the activities carried out by the undertaking in question. The criteria must be suited to the characteristics of each undertaking and the real nature of the activities carried out.

The following factors are of particular importance

• the place where the posting undertaking has its registered office and its administration.
• the number of administrative staff present in the posting State compared to the State of employment.
• the place of recruitment of the postal worker.
• the place where the majority of contracts with clients are concluded.
• the law applicable to the contracts signed by the posting undertaking with its clients and with its workers.
• The turnover achieved by the posting undertaking in the posting State and in the State of employment during an appropriate typical period (e.g. turnover of approximately 25% of total turnover in the posting state could be a sufficient indicator, but cases where turnover is under 25% would warrant greater scrutiny).

But the list of criteria outlined above is not exhaustive.