A person who normally carries on a work activity as a self-employed person in two or more Member States shall be understood to mean a person who simultaneously or alternately carries on one or more separate self-employed work activities in two or more Member States, irrespective of the specific nature of the work activity.
Regulation 883/2004 is based on the presence of substantial work activity in the Member State of residence or, if this is not the case, on the focus of activity in a Member State, in order to determine which national law is applicable.
Focus of activity or principal activity
Determining the focus of the activity or principal activity of a self-employed person takes into account all aspects of a person's professional work activities. The place where the fixed and permanent address from which the work activities are carried out is particularly relevant for the differentiation.
The following must also be taken into account for determining this:
- The usual nature or duration of the work activities carried out,
- the number of services provided and
- the will of the person in question as discernible from all the circumstances.
For the purpose of assessing the facts, the future situation of the self-employed person to be assumed for the following twelve calendar months must be taken into account.
Examples
The (principal) activity takes place in the Member State of residence
- Self-employed activities in two or more Member States
- The (principal) activity takes place in the Member State of residence
A person who normally carries out an activity as a self-employed person in two or more Member States shall be subject to the legislation of the Member State of residence if they carry out a substantial part of the work activity there.
Example:
A person is self-employed in Austria and Germany and lives in Germany. A (substantial) part of the self-employed work activity is carried out in Germany.
Person lives in: Germany
Self-employed work activity is carried out in: Germany (substantially or partially), Austria
Legislation: Germany
According to Regulation 883/2004, a substantial activity is one that is of major importance in comparison to the work activities carried out in the individual states.
No (substantial) activity is carried out in the Member State of residence
- Self-employed activities in two or more Member States
- No (substantial) activity is carried out in the Member State of residence
A person who normally carries out a work activity as a self-employed person in two or more Member States and who is not substantially active in the Member State of residence is subject to the legislation of the Member State where the focus of their activity is located (Regulation 883/2004, Withdrawal Agreement, Trade and Cooperation Agreement).
Example:
A person is self-employed in France and Slovakia and lives in Austria.
Since, based on the facts of the situation, none (Regulation 1408/71) or no substantial part (Regulation 883/2004) of the activity is carried out in Austria and the focus of activity or principal activity is located in Slovakia, the Slovak legal provisions are applicable.
Person lives in: Austria
Self-employed work activity is carried out in: France, Slovakia (main work activity or focus of work activity)
Legislation: Slovakia