EU: New EU agreement on the impact of cross-border telework on the applicable social security legislation

The applicable social security system is regulated by Regulation (EC) No. 883/2004. When COVID-19 forced everyone to work from home, the normal rules were temporarily set aside so teleworking from another member states did not have any impact on the applicable social security legislation (the “no-impact exception”). Until 30 June 2023, a transition period is in force that has maintained the no-impact rule. As this general exception cannot last forever, but cross-border telework is clearly here to stay, the EU had to find a more permanent solution. A work group of the EU Administrative Commission for the Coordination of Social Security Systems (the “Administrative Commission”) now has concluded a draft framework agreement, which can be signed by the EU Member States.

The agreement is based on Article 16 of Regulation (EC) No. 883/2004, which allows the competent authorities to provide for exceptions by common agreement in the interest of certain persons or categories of person. The agreement of will apply as from 1 July 2023 to all EU Member States who will sign the agreement. Belgium has already announced that it will sign.

The agreement includes a “less than 50% rule”, which provides that cross-border telework will not have an impact on the applicable social security legislation if the following conditions are met:

• The employee has only one employer (or multiple employers with a registered seat in the same member state);
• The employee works exclusively within the member state of the registered seat of the employer and, via teleworking, in their residence state; and
• Where both conditions (i) and (ii) are fulfilled, the teleworking in the residence state comprises less than 50% of the total working time.

This means that only teleworkers who have a legal residence in another Member State and who are working remotely from this Member State less than 50% of their total working time can enjoy this exception. The rule will also not apply when the employee is working for companies in different Member States.

If the exception applies to a teleworking employee, an A1-form should be requested to prove the subordination to the social security system of the member state of the registered seat of the employer.

Take aways:

• Employers should check whether the countries involved have signed the agreement
• Employers can then check whether their cross border teleworkers fall within the conditions (it could be recommended to adapt the internal rules to ensure conformity with the new agreement)
• Ensure that cross-border teleworking employees who apply have an A1-form.
• For cross-border teleworking employees who do not fall within the exception of the Agreement, other solutions will need to be implemented.

Source: Find the full text of the agreement and the guidance of the Belgian social security authorities here.