In circular no. 71 of 27 April 2021, INPS transposed the Agreement on Trade and Cooperation between the European Union (EU) and the European Atomic Energy Community, and the United Kingdom of Great Britain and Northern Ireland (TCA).
The agreement sets the conditions for cooperation between the participating countries and regulates certain areas, including social insurance, starting from 1 January 2021.
Pending examination of the agreement by the European Parliament, the participating countries have agreed to apply it provisionally from 1 January 2021 until 30 April (initially 28 February 2021). Specifically for the social security area, the coordination rules are contained in the relevant Protocol, which forms an integral part of the TCA and is valid for 15 years from its entry into force.
The Protocol recognises the possibility of derogating from the general provisions to define the applicable legislation by including the case of posting.
The Protocol requires that the posted worker remains subject to the State legislation where they habitually carry out their work, provided that:
Without prejudice to any bilateral agreements, the agreement does not allow this period to be extended.
These rules only apply to Member States, such as Italy, which have notified the EU of their intention to derogate from the general provisions ( Category A States).
According to INPS, periods of posting authorised before the entry into force of the TCA must be considered for the calculation of the uninterrupted posting period under Art. 12 of EC Regulation no. 883/2004. The duration of the uninterrupted posting cannot exceed 24 months, including periods before 2021. This is without prejudice to extending the posting by signing a derogating agreement under Art. 16 of the same Regulation (EC).
Any extensions of the posting authorised under Art. 16 before 1 January 2021 – in progress on that date – shall be valid until their natural expiry date. Other agreements signed before 1 January 2021, which derogate from the general provisions provided for by the previous Community legislation, shall remain valid until their natural expiry date.
The exit of the United Kingdom from the European Union (“Brexit“) will have an impact on international mobility for work purposes and personal data transfer to the United Kingdom.
The United Kingdom allows EU citizens already present in the UK for at least five years on 31 December 2020, to request confirmation of their right of residence (for work, study, etc.) beyond that date. The request can be made online by 30 June 2021 by filling the EU Settlement Scheme made available on the British Government website, obtaining the settled status.
If the permanence period is less than five years, it will be possible to apply to remain in the United Kingdom to complete it by obtaining the pre-settled status through the above form. Unlike the settled status, pre-settled status is lost when a person is absent from the country for two or more years.
This procedure will guarantee the same rights that an EU citizen residing in the UK had before Brexit. They will be able to stay in the UK indefinitely, work, use the health service, study, and have access to public funds such as social benefits and pensions.
For new entrants from 1 January 2021, however, it will be necessary to apply for a visa under the new points-based immigration system.
Italy has a procedure for confirming the rights acquired by British citizens present in the country on 31 December 2020. They can request the “residence document in electronic format” at the local Questura (police station). The same procedures as for non-EU citizens will be applied to those who will enter the country after 1 January 2021.
For the transfer of personal data to the United Kingdom, the Italian Data Protection Authority (the “Guarantor”) clarifies that it is necessary to refer to the “Trade and Cooperation Agreement” (“Agreement”) signed on 30 December 2020 by the European Union and the United Kingdom (“Trade And Cooperation Agreement Between The European Union And The European Atomic Energy Community, Of The One Part, And The United Kingdom Of Great Britain And Northern Ireland, Of The Other Part”).
Under the Agreement, the Regulation (EU) 2016/679 on the protection of personal data (“GDPR”) will continue to apply in the United Kingdom for a maximum of six months, i.e. until 30 June 2021. According to the Guarantor, “during this period, any communication of personal data to the UK may take place under the same rules that applied on 31 December 2020 and will not be considered a transfer of data to a third-party country.”
During this transitional period, the United Kingdom and the European Union have undertaken to adopt mutual adequacy decisions under this Agreement. In the absence of such decisions, the provisions of Chapter V of the GDPR governing the transfer of data from the EU to third-party countries will apply. These provisions require the existence of adequate safeguards, such as binding corporate rules, standard contractual clauses, and codes of conduct (see Art. 46 of GDPR). This is subject to exceptions, such as data subject consent or a transfer necessary for contract purposes or important reasons of public interest (Art. 49 of GDPR).
From 1 January 2021, Data Controllers and Processors based in the UK and who are subject to GDPR because they process data for offering goods and services or monitoring the behaviour of data subjects within the EU (see Art. 3, paragraph 2, GDPR), shall designate a Representative in the European Economic Area under Article 27 of GDPR.
Other insights related:
INPS (the Italian Social Security Institution), with its message no. 4805 dated 22 December 2020, provided clarifications on the issuance of A1/E101 social security certificate for periods of employment in the United Kingdom, concluding after the end of the transition period, namely 31 December 2020.
In particular, INPS specified that requests to issue Form A1 for periods of employment with start date prior to 31 December 2020 and end date thereafter will be accepted and the respective portable A1 documents will be valid until the end of the certified period, if the same are received by 31 December 2020.
INPS has also clarified that requests to issue A1/E101 Forms, which have been rejected as they relate to periods commencing from 1 January 2021, will be automatically rectified by way of the issuance of new certificates for the entire requested period, provided that there is seamless continuity in the applicable legislation already certified by the A1/E101 forms. The regional INPS departments will be responsible for communicating to the social security institution present in the United Kingdom that a new A1/E101 form has been issued for rectification of the period.
Finally, INPS has clarified that E101 certificates dated after 31 December 2020 may also be issued, if the conditions are in place, for citizens of Third Countries, notwithstanding that, for secondments, the maximum limit of duration for the certified period is 12 months.
