On 2nd March 2019, RDL 5/2019 of 1st March was published in the Official State Gazette (BOE), by means of which a series of measures are adopted, of a markedly temporary and/or short-term nature, whose objectives include the protection of the interests of citizens and economic operators, who exercised their right to free movement under the freedoms conferred by the Treaties signed by the Member States of the European Union, and all this in the face of the uncertainty and legal uncertainty arising as a result of a possible non-agreed exit of the United Kingdom from the European Union, initially scheduled for 30 March 2019.

Since there is no guarantee that an agreed exit from the United Kingdom will be achieved by 30th March 2019, the measures taken would be aimed at counteracting any undesirable effects which might result from that situation. Of the set of measures adopted, those contained in Chapter II of the regulation, relating to provisions on citizenship, would have repercussions and interest from a purely employment and social security point of view, as detailed below.

In the first place, in section 1 of said Chapter II, measures are established that regulate the residence and work of the nationals of the United Kingdom, residents in Spain and of the members of their family, since in the event of a non-agreed exit, they would automatically become citizens of third countries and therefore, not framed in the Regime of Citizens of the European Union, but in Foreign Legal Status.

In order to avoid such a situation and to ensure legal certainty for United Kingdom nationals residing in Spain, a specific regime for documentation as third-country nationals is envisaged, to be obtained within 21 months of the withdrawal without the United Kingdom's agreement. It also regulates the requirements for access to long-term residence for United Kingdom nationals residing in Spain and their family members who have resided legally and continuously in Spanish territory for at least five years.

Section 2 of the Chapter II lays down a procedure for the issue of a work permit to nationals of the United Kingdom who meet the condition of cross border workers.

It also regulates access to and practice of the profession and the rules applicable to access to and maintenance of the status of public employees of nationals of the United Kingdom at the service of the Spanish Public Administration. Likewise, UK nationals will be allowed to continue to permanently exercise a profession or professional activity in Spain, for which they have previously obtained recognition of their professional qualifications.

Section 4, under the heading "employment relations", guarantees continuity in the application of Directive 96/71/EC - on the posting of workers in the framework of the provision of services - to those workers of companies established in Spain who, on the date of departure from the United Kingdom, had workers temporarily posted to that country, subject to the recognition by authorities of the United Kingdom of reciprocal treatment, to workers temporarily posted to Spain by companies established in the United Kingdom.

Likewise, within the framework of labour relations, the maintenance of European Works Councils or alternative information and consultation procedures is envisaged in Community-wide companies or groups of companies in which workers or companies from the United Kingdom participate and which have their central management in Spain.

In the area of Social Security, throughout section 5 of Chapter II, the necessary measures are adopted -with a limited validity of twenty-one months- to protect workers in the British and Spanish social security systems, from the moment they leave the United Kingdom without an agreement. These measures only refer to situations that took place prior to the date of departure from the United Kingdom and can be distinguished:

a.- Social security for United Kingdom nationals: Measures intended to protect the social security rights of United Kingdom nationals who, on or before the date of withdrawal, are or have been subject to Spanish social security legislation or who, being subject to United Kingdom legislation, either as active workers or as pensioners, are residing in Spain on the date of withdrawal. In this regard, the following measures could be highlighted:

1.- Nationals of the United Kingdom who, after the date of withdrawal from the United Kingdom, reside and work legally in Spain, being subject to Spanish social security legislation, shall enjoy in this area the same rights and obligations as Spanish nationals;

2.- Nationals of the United Kingdom who are subject to United Kingdom social security legislation, by application of Community social security regulations, may maintain that situation until the end of the period provided for, at which time they would become subject to Spanish legislation. This provision will apply only if Spanish workers are accorded reciprocal treatment by the authorities of the United Kingdom;

3.- Pensioners of United Kingdom nationality covered by the Spanish social security system who reside outside Spain at the time of retirement will continue to receive their contributory pensions and, where applicable, the corresponding revaluations, as from that date;

4.- Nationals of the United Kingdom who, before the date of withdrawal, had completed periods of insurance credited to the British social security system, and also in Spain or any other Member State of the European Union and the European Economic Area, will be taken into account, in due course, to cause entitlement and for the calculation of the corresponding retirement, permanent disability and death and survival pensions, which they may cause.

b.- Social security for nationals of Spain, the Member States of the European Union, the European Economic Area and Switzerland: Social security measures to protect the rights of Spanish nationals affected by the withdrawal from the United Kingdom. In this sense, the following measures could be highlighted:

1.- Spanish nationals who at the date of withdrawal reside and work legally in the United Kingdom or Gibraltar, remaining subject to Spanish legislation by application of Community social security regulations, shall remain subject to Spanish legislation until the end of the period provided for, if  admitted by the competent United Kingdom authorities on a reciprocal basis;

2.- Pensioners under the Spanish social security system will continue to receive their contributory pensions, as well as the corresponding revaluations and minimum supplements, even if they reside in the United Kingdom after the withdrawal of that country from the European Union;

3.- Periods of contributions in the United Kingdom or Gibraltar, before the date of withdrawal, shall be considered in the recognition of unemployment benefits, payable by Spain, Spanish nationals and nationals of Member States of the European Union, provided that the last contributions were made in Spain, and residence in Spain is maintained.

4.- Citizens of Member States of the European Union, resident in Spain, who travel daily to work in Gibraltar, will be able to access unemployment benefits recognised by Spain, for periods contributed in Gibraltar before and after the date of withdrawal, without it having been necessary to contribute to the Spanish social security system for said contingency.

Finally, it should be pointed out that the regulation contemplates a series of measures relating to health care in the absence of an express international instrument, in such a way that during its period of validity, health care will continue to be provided in Spain to British nationals, under the same terms and conditions that were provided prior to their departure from the United Kingdom, provided that this reciprocal right is guaranteed by the United Kingdom to Spanish citizens or citizens of other Member States of the European Union.

The entry into force of the rule is subject to the United Kingdom's exit from the European Union without a withdrawal agreement concluded in accordance with Article 50(2) of the Treaty on European Union. In this case, the rule will enter into force on the day on which the Treaties of the European Union cease to apply to the United Kingdom, in accordance with Article 50.3 of the Treaty on European Union.

You can consult the full text of the Royal Decree-Law in this link. 

For more information, please contact:

Alfredo Aspra

alfredo.aspra@AndersenTaxLegal.es

José Antonio Sanfulgencio

jose.sanfulgencio@AndersenTaxLegal.es