"NEWS October 5, 2016-new rules for officials serving in Italy from EU countries"
Within the framework of the international mobility of workers, a major role is played by the Institute of detachment by which an employee is "lent", for a certain period of time, by the posting undertaking (with which you established the original employment relationship) to distaccataria benefiting work performance of the employee in question. Such cases occur in particular between companies, often belonging to the same group.
As regards taxation, the employee fully taxable in Italy posted abroad is subject to tax in Italy generally based on c.d. "conventional remuneration" in article 51, paragraph 8 bis, Tuir, as usually meets its temporal conditions (operation limited to work abroad for more than 183 days within twelve months). Conversely, employees of foreign companies branches at their Italian affiliates, are subject to taxation on basis of "Analytics" in the sense that ordinary income rules apply to employees referred to in paragraphs 1 to 8 from the same article 51, Tuir, as they cannot apply the discipline dictated by paragraph 8 bis provided only for workers "abroad" Although this point seems reprehensible, especially in Europe, as discriminatory and detrimental to, inter alia, the principle of free movement of workers.
That said, it should be pointed out that, even before the tax-related issues, which go on scheduled advance detachment are also issues of labour law and social security nature that do not go at all undervalued. Especially after that with regard to workers from EU countries in Italy entered into force, since last July 22, d. Lgs. 136/2014/2016 implementation of the provisions of the European Directive 67/EU.
In particular, the Decree shall apply to:
- undertakings established in another Member State which, in the framework of the provision of services, post in Italy one or more employees in favor of another, even within the same group, or of another production unit or another recipient, provided that during the period of posting, you continue to be a working relationship with the posted worker;
- business administration agencies established in another Member State which post workers at a user undertaking having its registered office or a production unit in Italy.
Moreover, the definition of "posted worker" provided by article 2 of the decree is very large by defining it as such "the worker habitually employed in another Member State which, for a limited period, predetermined or predictable basis with reference to a future event and of course, carries out its work in Italy".
It also ruled that the employment relationship between the companies and workers during the period of secondment, apply the same terms and conditions of employment for workers who carry out similar subordinate work performance at the place where the posting takes place.
In order also to counter the phenomenon of allocation of a fictitious employer contributory schemes in EU Member States with less stringent than Italian are dictated a series of stringent provisions to ascertain the authenticity of the posting.
In particular, article 3 of the Decree stipulates that in order to ascertain whether the posting undertaking armies actually activities other than mere management or administration of an employee shall be assessed a number of elements including:
- the place where the undertaking has its headquarters, its offices, departments or units;
- the place where the enterprise is registered at the Chamber of Commerce;
- the place where workers are hired and one from which they are posted;
- the place where the company carries on its main economic activity and where is busy his administrative staff;
- the number of trades carried out or the amount of the turnover achieved by the undertaking in the Member State of establishment, taking account of the specific nature of SMEs and newly created ones.
In addition, in order to ascertain whether the worker is "really" aloof inspection organs should assess, among other things:
- the content, nature and manner of performance of work and the remuneration of the worker;
- the fact that the worker normally pursuing his activity in the Member State from which it was detached;
- the temporary nature of the work carried out in Italy;
- the fact that the worker has returned or is expected to come pay his activity in the Member State from which it was detached;
- the fact that the employer which posts a worker to provide the costs of travel, accommodation or lodging;
- any former where the same activity was carried out by the same or another worker;
- the existence of the certificate concerning the social security legislation
In cases where the posting in favour of an undertaking established in Italy is not authentic, the employee is considered in all respects under the authority of the person who has used the service.
In such cases the disciplinary framework is particularly heavy: the release agent and the person who has used the provision of posted workers are punished with a pecuniary administrative sanction of 50 euros for each worker occupied and for each day of employment. In any case the amount of the penalty shall be not less than 5,000 euros or more than 50,000 euros.
by Nicola Fasano