CROSS-BORDER WORK

With the creation of policies to encourage the settlement of people in the interior regions of the country, there has also been an increase in situations of workers residing in Portugal, but who, however, carry out their professional activity in Spain, the same happening in opposite way.

In view of this, at the XXXI Portuguese-Spanish Summit held in 2020, Portugal and Spain committed, through the signing of a memorandum of understanding, to the definition of a Common Cross-Border Development Strategy (ECDT), which includes, among others, the reinforcement and promotion of the “figure of the cross-border worker through the creation of a specific document that regulates it, with clear and accessible, establishing support points in border municipalities. (…)”.

This strategy came to fruition through the creation of the “Practical Guide to Border Work between Portugal and Spain”, presented at the end of 2022 at the XXXIII Luso-Spanish Summit held in Viana do Castelo.

With the creation of the aforementioned Practical Guide, which naturally does not constitute legislation, an attempt was made to clarify the applicable regulatory framework and the rights granted by national legislation and the common framework of the European Union legislation, presenting, in a simple way, the rights and services available to border workers from Portugal and Spain.

The working conditions and the legislative framework contained in the aforementioned statute are therefore applicable to workers who fall within the definition set out in article 1 paragraph f) and article 11 paragraph 3 paragraph a) of Regulation EC 883/04, which considers a frontier worker “a person who carries out an activity as an employed or self-employed person in one Member State and who resides in another Member State to which he returns, as a rule, daily or at least once a week”.

It is, therefore, the corollary of one of the founding principles of the European Union, that of the free movement of workers, as well as legislation that regulates cross-border labour, largely aimed at those residing close to the country’s borders.

With this Practical Guide, which may prove to be a useful instrument given the nature of the matter and the dispersion of applicable legislation, various circumstances and needs of the workers covered by this figure are clarified, in matters such as the applicable law, the social security regime, protection in cases of disability due to illness or work accident, as well as retirement or unemployment situations.

In this aspect, we highlight the following:

• In terms of necessary documentation, it is clarified that workers residing in Portugal and working in Spain need to apply for a foreign identification number, which they can request at a police station or embassy – articles 206 and 210 of the “Lei Orgânica 4/2000”.
• Regarding the law applicable to the employment relationship, it is clarified that, in principle, it is that which is freely chosen by the parties, even though the worker may benefit from the rights that are granted by the law applicable in the country where he works – article 8 of Regulation (EC) nº 593/2008 on the law applicable to contractual obligations (Rome I).
• In terms of social security, it is clarified that, as a rule, workers who work in Spain and reside in Portugal must be registered with the Spanish social security system.
• Regarding situations of incapacity due to an accident at work, it is mentioned that, in the case of Portuguese workers who reside in Portugal and work in Spain, communication and receipt of benefits must occur in accordance with Spanish legislation, applying “Lei 98/2009” when workers of Spanish nationality working in Portugal are concerned.
• In terms of parental protection, the border worker guide clarifies that a citizen residing in Portugal who works for hire in Spain has the right to receive health care and financial benefits, which they also obtain in Spain.
• Regarding unemployment protection, it is clarified that, in the case of Portuguese who worked for others in Spain, Portuguese legislation applies, and the contribution periods in Spain will be considered in Portugal, even if the worker must request documentation with the Spanish public employment service – article 65, paragraph 2 of Regulation (EC) 883/2004 and article 56 of Regulation (EC) 987/2009.

Without prejudice to the above and the practical advantages that this document may bring in clarifying the applicable regime, it is recalled that the mere creation of the “Practical Guide for Border Work between Portugal and Spain” does not constitute, in any way, legislation and, therefore, does not dispense with the analysis of the legislation specifically applicable to each of the matters.