Reporting obligations for CEOs on business trips within the EU

Today I had a consultation in the subject area of cross-border labor law. Specifically, a business trip of a managing director from Germany to Italy was to be examined under employment, social security and tax law.

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I was able to assess the social security and tax risks quite quick. With regard to social insurance, a so-called A1 certificate had to be applied for from the social insurance agency. With regard to tax, the establishment of a so-called permanent establishment could be effectively ruled out in view of the low footprint of the trip.

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However, the examination under labor law was somewhat more problematic, and in particular whether a so-called employee posting notification was necessary. Corresponding obligations may arise from the Italian Posted Workers Norm (Article 10, paragraph 3, of Legislative Decree No. 136 of July 17, 2016) , the national implementation of EU Directive 2018/957. Specifically, this could mean – in addition to complying with Italian employee protection minimum laws – that the person must be registered in the Italian Cliclavoro portal.

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For this to be the case, however, the person – in this case the CEO – would actually have to be covered by the scope of the norm. In concrete terms, however, the norm refers to the term “employee”. It is now questionable whether the CEO qualifies as such.

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In my legal research, I ultimately came to the following conclusion: The Italian Posting of Workers Act only applies to the posting of dependent employees. It is therefore necessary to examine the specific facts of the case: If the managing director “only” has a managing director contract, then he is treated the same as a self-employed person and he is accordingly not required to register. If, however, he has a pending employment relationship with the company, his posting is indeed subject to reporting.

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In the specific case, the CEO had such a specific managing director contract and no employment contract (and was also registered in the commercial register) . A reporting obligation could therefore be denied.

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With regard to the general question of whether CEOs need a employee posting notification for corresponding EU assignments, reference can in principle be made to the results of the case. However, this is with a certain restriction. The relevant legal basis was indirectly an EU directive, but specifically an Italian federal law. In the case of a situation in another EU country, this is again indirectly based on the same EU directive – but in concrete terms there is then a different local transposition law. In practice, a close look must be taken at this law – because the national transposition laws may indeed differ.

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