New contribution regulation for workers posted abroad

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

We inform you that Order ISM/835/2023, of July 20, 2023, 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 the same does not apply to the specific case or when the maximum period for maintaining contributions in origin has ended), came into force on November 1, 2023, as 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 is established:

• Companies that have workers posted abroad who, on the date of entry into force of this order, are in the situation referred to in paragraph b) of article 3 must notify 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 applications for registration in articles 32, 35 and 38 of the General Regulations on registration of companies and affiliation, registrations, cancellations and variations of data of workers in the Social Security.
• The 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, after agreement with the affected persons, request their voluntary affiliation 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.

Posted workers

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

This Order establishes as a novelty the possibility of applying, on a voluntary basis, to workers posted to countries with an international instrument of coordination of the National Security systems, who, once the maximum period foreseen in the international instrument has expired, are obliged (according to the regulations of the destination country) to temporarily disassociate themselves from the Spanish Social Security system and to pay contributions in the destination country.

It applies to workers of any nationality.

Assumptions of situation assimilated to registration.

Four assumptions of situation assimilated to that of registration in the Social Security system for posted employees are established (art. 3):

1. Displacement to a country without an applicable international instrument for the coordination of Social Security systems.
2. Posting to a country with an applicable international instrument, but which does not include workers with a nationality other than that of the parties.
3. Posting to a country with an applicable international instrument that allows the application of the Social Security legislation of the country of origin during the posting, once the maximum period foreseen in the international instrument has been exhausted.
4. Posting to a country with an applicable international instrument that does not provide for the posting of workers by companies to the territory of the other party.

The situations assimilated to registration indicated above will be maintained exclusively during the period of displacement that originates in the contract formalized in Spain, even if the worker changes the 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 the Social Security is notified in due time.

Any new contract formalized outside Spain will entail the extinction 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 situation assimilated to discharge, will include the subsidies for temporary disability derived from common or professional contingencies, birth and care of a minor, co-responsible care of a nursing infant, risk during pregnancy, risk during breastfeeding and care of minors affected by cancer or other serious illness, risk during breastfeeding and care of minors affected by cancer or other serious illnesses, in addition to the contributory pensions for permanent disability and death and survival arising from common or professional contingencies and the contributory retirement pension, with the extension and scope provided for in the regulations applicable to the Social Security regime in which they were included.

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

Application and procedure

The communication of situations assimilated to registration, as provided for in this regulation, will be carried out through the procedure established by the General Treasury of the Social Security, within the following deadlines and effects:

1. Posting of workers to a country where no international instrument is applicable or being applicable an international instrument, these workers are not included within its subjective scope of application.
2. In the situations foreseen in paragraphs a) and b) of article 3; the company must inform of the posting of the worker prior to the beginning, and in the terms and with the effects foreseen for the applications for registration in articles 32, 35 and 38 of the General Regulation on registration of companies and affiliation, registrations, cancellations and variations of data of workers in the Social Security, approved by Royal Decree 84/1996, of January 26.
3. Posting of workers to a country where an international instrument on the coordination of Social Security systems is applicable:

In the situations of art. 3.c); the company, with the prior agreement of the employee, shall inform of the displacement in the following terms:

• If the request is made before the end of the maximum period established in the international instrument, or until the last day of the month following its end; the effects will be produced from the day following its end.
• If an extension has been requested, and the country of destination replies denying this extension, the worker will be discharged from the date of the beginning of the unauthorized period; unless the company, with the prior agreement of the worker, requests the assimilated situation as a maximum period of the last day of the month following the discharge, applying this situation from the date of the end of the maximum authorized period.
• If the request is made outside the above deadlines, it will take effect only from the date of presentation of the request.

In the situations defined in article 3.d), the company, with the prior agreement of the worker, may request to the General Treasury of the Social Security that the worker continues to be subject to the Spanish Social Security legislation, in a situation assimilated to that of being registered in the Social Security regime in which they were included, under the terms provided in article 7 and with the effects indicated in paragraphs a) and c) above.

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

• Date of the beginning of the posting in the cases of paragraphs a), b) and d) of article 3.
• Country in which the posted worker is located.
• Date foreseen, if applicable, for the end of the posting, indicating whether the worker will continue to provide services in Spain.

In the cases of paragraphs c) and d) of Article 3, of voluntary affiliation to the Spanish Social Security, the workers and the companies must formalize in writing, jointly and in the official form established by the Social Security Treasury, the agreement for the affiliation to the Spanish Social Security system, independently of the obligatory application, also, of the legislation in this matter of the country in which they are posted.

Their communication will be made through the RED System.

You can contact this professional office for any doubt or clarification you may have in this regard.

For further information, please contact Labor consulting 

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