The new regulations on social security contributions for workers posted abroad came into effect on November 1.

Since November 1, 2023, Order ISM/835/2023, of July 20, which regulates the assimilated situation of workers posted abroad, has come into force.

We inform you that Order ISM/835/2023, of July 20, which regulates in detail the cases in which posted workers will be considered in a situation assimilated to registration (such as in the absence of a bilateral agreement, when it does not apply to the specific case or the maximum period of maintenance of contributions in origin has concluded), came into force on November 1, 2023, from which date the previous regulations of January 27, 1982 will cease to apply.

However, a transitional regime of 6 months after the entry into force of the Order:

• Companies that have workers posted abroad who, on the date of entry into force of this order, are in the situation contemplated in paragraph b) of article 3 must communicate said posting to the General Treasury of the Social Security, within six months from the entry into force of this order, in the same terms and with the effects provided for the applications for registration in articles 32, 35 and 38 of the General Regulation on registration of companies and affiliation, registrations, cancellations and changes of data of workers in the Social Security.
• Companies that have workers posted abroad who, on the date of entry into force of this order, are in any of the situations contemplated in paragraphs c) and d) of article 3 may, by prior agreement with the persons concerned, request the voluntary linkage of them to the Spanish Social Security, in accordance with the provisions of articles 7, 8 and 9, within a period of six months from the entry into force of this order.
• The Order will not generate rights in periods prior to its entry into force.

Displaced workers

The Order defines displaced persons as workers employed in Spain by a company that carries out its activities in Spanish territory and are sent to another country in order to perform salaried work on behalf of said company.

This Order establishes as a new feature the possibility of voluntary application to workers posted to countries with an international instrument for the coordination of National Security systems, who, once the maximum period of posting foreseen in the international instrument has ended, are obliged (according to the regulations of the destination country) to temporarily detach themselves from the Spanish Social Security system, and to contribute in the destination country

It applies to workers of any nationality.

Cases of situation assimilated to discharge

Four scenarios are established that are considered equivalent to registration in the Social Security system for employed workers who have been posted abroad (art. 3):

1. Travel to a country without an applicable international instrument for the coordination of social security systems.
2. Transfer to a country with an applicable international instrument, but which does not include workers with a nationality different from that of the parties.
3. Travel to a country with an applicable international instrument that allows the application of the Social Security legislation of the country of origin during the travel, once the maximum period provided for in the international instrument has been exhausted.
4. Transfer to a country with an applicable international instrument that does not provide for the transfer of workers by companies to the territory of the other party.

The situations considered equivalent to registration indicated above will be maintained exclusively during the period of displacement that originates from the contract formalized in Spain, even if the worker changes country of destination, provided that in the latter the conditions established in articles 3.a), 3.b), or 3.d) of the regulation are met and the General Treasury of Social Security is notified in due course.

Any new contract formalized outside of Spain will entail the termination of the situation assimilated to that of registration, except for the exceptions provided for in the Order.

Protective action

The Protective action established for the cases defined in Article 3, points a) and b), of a situation assimilated to discharge, will include the subsidies for temporary incapacity derived from common or occupational contingencies, birth and care of a minor, co-responsible exercise of the care of an infant, risk during pregnancy, risk during breastfeeding and care of minors affected by cancer or another serious disease, in addition to the contributory pensions for permanent incapacity and death and survivorship derived from common or occupational contingencies and the contributory retirement pension, with the extension and scope provided for in the regulations applicable to the Social Security system in which they were included.

The protective action provided for the cases defined in Article 3, points c) and d), will include contributory pensions for permanent disability and death and survivorship arising from common contingencies and the contributory retirement pension, with the extension and scope provided for in the regulations applicable to the Social Security system in which they are classified.

Application and procedure

The notification of situations considered equivalent to registration, as provided for in this regulation, will be carried out through the procedure established by the General Treasury of Social Security, within the following time limits and effects:

1. Transfer of workers to a country where no international instrument is applicable or where, although an international instrument is applicable, these workers are not included within its subjective scope.
2. In the situations provided for in sections a) and b) of article 3; the company must inform of the worker's relocation prior to the start, and in the terms and with the effects provided for applications for registration in articles 32, 35 and 38 of the General Regulation on registration of companies and affiliation, registrations, cancellations and changes of data of workers in the Social Security, approved by Royal Decree 84/1996, of January 26.
3. Transfer of workers to a country where an international instrument on the coordination of social security systems is applicable:

In the situations referred to in art. 3.c); the company, after prior agreement with the worker, will inform of the relocation in the following terms:

• If the application is made before the end of the maximum period established in the international instrument, or up to the last day of the month following its end; the effects will take place from the day following its end.
• If an extension has been requested, and the destination country responds by denying this extension, the worker's dismissal will proceed from the start date of the unauthorized period; unless the company, by prior agreement with the worker, requests the assimilated situation as a maximum period of the last day of the month following the dismissal, applying this situation from the end date of the maximum authorized period.
• If the application is made outside the above deadlines, it will only take effect from the date of submission of the application.

In the situations defined in Article 3(d), the company, by prior agreement with the worker, may request the General Treasury of the Social Security to continue to be subject to Spanish Social Security legislation, in a situation equivalent to registration in the Social Security scheme in which they were classified, under the terms provided in Article 7 and with the effects indicated in the previous sections (a) and (c).

Finally, the order regulates the information that must be communicated by companies to the General Treasury of Social Security:

• Start date of the displacement in the cases of sections a), b) and d) of article 3.
• Country where the posted worker is located.
• Expected date, if any, for the end of the posting, indicating whether the worker will continue to provide their services in Spain or not.

In the cases referred to in sections c) and d) of Article 3, regarding voluntary affiliation with the Spanish Social Security system, workers and companies must formalize in writing, jointly and in the official form established by the Social Security Treasury, the agreement for affiliation with the Spanish Social Security system, regardless of the mandatory application of the legislation in this matter of the country in which they are located.

Your communication will be carried out through the RED System.

You can contact this professional office for any questions or clarifications you may have.

Warm regards,

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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.

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