New measures of action against the false self-employed

The General Regulations on registration of companies and affiliation, registrations, cancellations and variations of data of Social Security workers, has been modified in order to guarantee the correct affiliation of workers in the corresponding Social Security Regime. This modification affects the processing of registrations, cancellations and variations of data practiced ex officio by the General Treasury of the Social Security (TGSS) at the request of the Labor and Social Security Inspectorate (ITSS).

Novelties in the ex officio processing of data registrations, cancellations and variations

Effective August 5, 2018, articles 31 and 35 of the General Regulations on company registration and affiliation, registration, cancellation and data variations (RD 84/1996) are modified.

The modifications aim to facilitate the correct processing, until their resolution, of the ex officio procedures of registrations, cancellations and variations of data carried out by the General Treasury of the Social Security (TGSS) at the request of the Labor Inspectorate of the Social Security (ITSS), and affect the following aspects:

When applications are submitted for the withdrawal of workers whose registration has been carried out ex officio, the TGSS must request the Labor and Social Security Inspectorate to issue a precise report on the concurrence of the facts and other circumstances determining the requested leave. Until now, the request and issuance of this report was optional.
While the General Treasury of the Social Security (TGSS) is processing ex officio a procedure of registration or variation of data, as a result of minutes issued by the ITSS; will not produce effects of requests for withdrawal and variation with respect to the same workers affected. The obligation to contribute in this case will be maintained, until such procedures are completed.

Modifications in the General Regulations on registration, affiliation, registrations, cancellations and variations of data

BEFORE (August 4, 2018)

Article 31. – Documentation to prove professionalism and other requirements for the purposes of registrations, cancellations and variations of data

Point 1. The subjects obliged to request the registrations, cancellations and other variations of data of those included in the field of application of any of the Regimes of the Social Security system must accredit, as appropriate, the provision of services, the professional exercise of the activity and the concurrence of the other requirements and circumstances determining the inclusion in the Regime in question, that have ceased to meet these requirements or, where appropriate, that the variations that affect the mimes have occurred, through the presentation of the documents or reports that are requested by the General Treasury of the Social Security, provided that they are not in the possession of the same and are necessary for the purposes indicated.

Requests for registration, cancellation or variation of data must be accompanied, where appropriate, by the documents expressly established in articles. 40 10 10 10 10 20 10 1 of this regulation and other implementing provisions.

Item 2. If the applications for registration and cancellation do not meet the established requirements or the documentation required in these regulations and other complementary provisions are accompanied, the person who has submitted them will be required to correct the lack within ten days or accompany the mandatory documents, with an indication that, if he does not do so, you will be deemed to have withdrawn your request and the appropriate actions will be carried out ex officio, notifying the Labor and Social Security Inspectorate for the relevant purposes.

Item 3. In any case, the Provincial Directorates of the General Treasury of the Social Security or the Administrations of the same may request from the Labor and Social Security Inspection and, where appropriate, from the other Administrations, in the terms established in the art. 4 L 30/1992 of 26 November,the precise reports on the concurrence of the facts and other circumstances determining the registration, cancellation or variation requested or practiced.

Article 35. – Special effects of the highs and lows of the workers

Point 7. The provisions of the preceding paragraphs are without prejudice to the effects of undue registrations and cancellations provided for in articles. 60 and 61 of that regulation.

NOW (as of August 5, 2018)

Article 31. – Documentation to prove professionalism and other requirements for the purposes of registrations, cancellations and variations of data

Item 3. In any case, the Provincial Directorates of the General Treasury of the Social Security and the Social Security Administrations may request from the Labour and Social Security Inspectorate and, where appropriate, from the other Administrations, in the terms established in the Article 141 of Law 40/2015, of October 1,on the Legal Regime of the Public Sector, the precise reports on the concurrence of the facts and other determining circumstances of the registration, cancellation or variation of data requested or practiced.

However, the request and issuance of such reports by the Labour and Social Security Inspectorate will be mandatory in the procedures that resolve the requests for withdrawal related to workers who have been discharged ex officio at the request of the latter.

Article 35. – Special effects of the highs and lows of the workers

Point 7. Requests for withdrawal and variation of data made by companies and, where appropriate, by workers, which affect periods included in the minutes issued by the Labour and Social Security Inspectorate that have given rise to procedures for registration or variation of data that are being processed ex officio by the General Treasury of the Social Security, with respect to the same workers, they will not produce effects or extinguish the obligation to contribute until these procedures are completed.

Point 8. The provisions of the preceding paragraphs are without prejudice to the effects of undue registrations and cancellations provided for in Articles 60 and 61 of these Regulations.

Incorrect framing in Social Security: Consequences

Supposed

We register in a Regime of the Social Security system of people included in the field of application of another Different Regime, these are the effects:

it is valid until the date fixed in the administrative decision declaring it undue and, failing that, until the last day of the month of its notification.
if the registration is undue in one Regime but appropriate in another: the contributions made are computed reciprocally, for the purposes of the corresponding protection, with those of the appropriate Inclusion Regime.

Action of the General Treasury of the Social Security

The TGSS can process ex officio the cancellation in the incorrect regime and the registration in the correct one as a result of the action of the ITSS, by the data contained in it or in a managing entity or by any other procedure.

If, subsequently, the worker or the company requests the withdrawal of the workers discharged ex officio in the correct regime:

the TGSS must request from the ITSS the precise reports on the concurrence of the facts and other circumstances determining the requested withdrawal;
the applications do not produce effects, while the TGSS is processing ex officio the procedure of registration or variation of data, and the obligation to contribute is maintained until the end of the procedure.

If you have any questions about these procedures, you can contact us, and our team of advisors and business consultants will be in charge of helping you with any question.