NEW ELECTRONIC METHOD OF PRESENTING THE PORTABLE DOCUMENT A1
In order to make it easier for the employer to make the requests for issuing the portable document A1 (certificate of applicable legislation), The welfare institute Inps has prepared a new procedure aimed at digitalising the procedure envisaged for issuing this certification.
From 1st September 2019 requests for issuing the A1, sent by the accounting office or by the employer, can only be sent digitally.
The digital transmission must be performed in the following manner: by means of the website www.inps.it select “Tutti i servizi”, type in the field “Testo libero” “Servizi per le aziende e consulenti” and access “Portale delle Agevolazioni (ex-DiResCo)” > “Distacchi” (Procedure for requesting certification A1 in application of EU law).
In order to guarantee greater information and disclosure of the changes regarding the presentation of these requests digitally, until 31 August 2019 a transitory period is envisaged during which requests can be sent either in the usual manner or by using the digital channel.
The portable document A1 is issued to certify the social security legislation applicable to the worker, who is the form holder, in the event that they wish to carry out a working activity in one or more States which apply the Community Regulation.
Community law applies
- to the EU Member States: Italy, Austria, Belgium, Denmark, Finland (including the Aland isles), France and the Overseas Departments ( Reunion isles, Mayotte, French Guiana, islands included in the archipelagos of the Antilles: Martinique, Guadeloupe and the island of Saint Martin), Germany, United Kingdom (Great Britain and Northern Ireland including Gibraltar), Greece, Eire, Spain, Luxembourg, Holland, Portugal (including the Azores and Madera), Spain (including the Canary Isles, Ceuta and Melilla), Sweden, Czech Republic, Republic of Cyprus, Estonia, Latvia, Lithuania, Malta, Poland, Slovenia, Slovakia, Hungary, Romania, Bulgaria and Croatia;
- to the See States (Island, Liechtenstein and Norway), in application of the See Agreement;
- to Switzerland, in application of the CH-EU agreement.
For managing the issue of the portable document A1 specific application forms of this certificate have been prepared. In particular, the Institute provided indications on the different ways of presenting the requests that, according to the type of worker, can be sent through the bidirectional function of the so-called “Cassetto previdenziale” State pension database, certified email, registered letter with advice of receipt or presented directly at the office.
With the aim of making it easier for the employer and workers to present these requests, the Institute has prepared a new procedure, through the digital channel alone, aimed at digitalising the procedure envisaged for issuing this certification.
The digital transmission concerns presenting requests for issuing the portable document A1 by the employers or their consultant for the following types of request:
- worker on a vessel at sea (article 11 (4), Regulation (EC) 883/2004);
- posted employees (article 12 (1), Regulation (EC) 883/2004);
- exceptions for posting of employee (article 16, Regulation (EC) 883/2004).
While awaiting completion of the digitalisation process, request concerning the following situations are momentarily excluded from digital transmission:
- posted self-employed workers (article 12 (2), Regulation (EC) 883/2004);
- self employed worker who pursues an activity in two or more Member States (article 13 (2), Regulation (EC) 883/2004);
- self employed and employed worker who pursues an activity in two or more Member States (article 13 (3), Regulation (EC) 883/2004);
- a civil servant (article 11 (3), letter b), Regulation (EC) 883/2004);
- a civil servant who pursues activity as an employed or self employed worker in two or more Member States (article 13 (4), Regulation (EC) 883/2004);
- Employed worker who pursues an activity in two or more Member States (article 13 (1), Regulation (EC) 883/2004);
- flight crew and cabin crew member (article 11 (5), Regulation (EC) 883/2004);
- exception (article 16, Regulation (EC) 883/2004):
- general exceptions;
- exceptions for posting self employed worker;
- employed/self-employed worker who is subject to the legislation of the State in which they work (article 11, paragraph 3, letter a), Regulation (EC) 883/2004).
For presenting the request, the employer or pension consultant must access the service through the “Portale delle Agevolazioni (ex-DiResCo)”. Once logged in, the system proposes the list of the modules of all the Statements of responsibility. By selecting the module “Distacchi” you will be asked to enter the inps registration number of the employer. On entering the registration number, the system, having verified its correspondence to the data present in the Institute’s digital records, proposes the home page of the “Distacchi” module.
In the home page of the digital module “Distacchi” the user can visualise the list of the workers who have requested A1 certification.
Selecting the option “Inserimento domanda” it will be possible to proceed with entering a new request, by choosing among the proposed types. For all the approved requests in the status “Accolta”, the A1 certification will be produced to issue to the worker. For each accepted request with an outgoing certified protocol, the application allows the A1 certification to be downloaded in PDF format that will be stored in the application.
The requesting party, apart from being able to visualise the outcome in the web dashboard dedicated to them, will be informed of the definition of the request via e-mail and/or via text message, respectively at the address and mobile phone number indicated in the request (if present). The A1 certification issued with the new application will be signed by hand replaced by printing as laid down by the laws in force.
A copy of the portable document A1 will be sent to the applicant by certified email or traditional email.
If, on request of the foreign institution, it should be necessary to acquire the portable A1 documentation in its original format, the certification will be available for withdrawal at the territorial Inps structure with jurisdiction.
TRANSNATIONAL POSTING – INFLICTION OF THE PENALTY
The INL has intervened to provide clarification regarding the possibility of transnational posting of workers, carried out in accordance with Legislative Decree 136/2016, by an enterprise incorporated in another EU State in favour of its own productive unit located in Italy.
In particular, the clarification regards a case in point of non authentic posting pursuant to article 3 (5), of Legislative Decree 136/2016, against the same employer who is the posting subject and the posted subject. Specifically, there are 2 distinct unlawful conducts – posting of the workers by the main business office and their use by the Italian offices of the same enterprise – and, therefore, we ask ourselves whether it is right to dispute both the administrative sanctions, contemplated by the law, to a single subject, as comes from the results of the inspections, or whether a single sanction should be applied in order to not avoid the principle of ne bis in idem. In order to provide a possible solution to the matter raised, the INL refers to the provision in force according to which “in the event of the posting not being authentic, the posting party and the subject that has used the services of the posted workers are punished with the administrative pecuniary sanction of 50 euro for each employed worker and for each day of employment” (article 3 (5), Legislative Decree 136/2016).
From this law, it can, therefore, be deduced that both the conduct of posting workers by the posting company and the use of the same workers by the subject to which they are posted, is punished.
The INL, with note no. 5398/2019, highlights that the production unit of a certain enterprise can consider itself an autonomous secondary office, against which it can dispute unlawful acts and adopt relevant sanctions, only insofar as it constitutes a distinct centre of responsibility.
In other words, the secondary office of a corporate structure can be considered as a distinct legal subject only if it is registered in the Business Register and identified in Italy through its own legal representative; this does not occur, on the other hand, in the event of the secondary office/production unit constituting a simple representative office, with exclusively promotional and publicising functions of collecting information, scientific or market research, or if it performs preparatory activity to opening an operative branch for example.
In the case described above, concludes the note, there would not seem to be a distinction between the posting subject and the using subject, because the workers would be sent from the main offices of the foreign posting company to one of its own production units located in Italy, without an independent legal representation and managed exclusively by a person responsible appointed by the same main office.
In the light of what has been illustrated, since both the foreign posting company and the user located in Italy belong to the same employing organisation, the Inspectorate considers that only one sanction should be applied to the only subject with legal personality, that is the posting company.
The office remains at your disposal for any further clarification.
Arianna De Carlo – Senior Payroll Specialist & Labour Consultant