by Lieven Goossens and Elise Thijs
On 1 July 2023, the framework agreement on cross-border telework signed by 18 European member states came into force. This historic agreement follows extensive deliberation among the European member states and marks an important development in how telework is handled within social security frameworks.
During the COVID-19 pandemic, “working from home” shifted from the exception to a standard practice for many companies and employees. Through the pandemic period, social security organisations were able to leverage flexibility in the legislation and allow many employees to work remotely several days a week from their country of residence, without any consequences for their social security status.
In 2022, pandemic conditions eased, but workers and employers were keen to continue with these hybrid working models. However, existing European legislation presented certain obstacles – in particular, Article 13 of Regulation 883/2004 which specifies that no more than 25% of a cross-border employee’s working time can be spent in their country of residence. This regulation was originally intended to avoid administrative complexity.
In light of the changing circumstances, employers and employee representatives joined forces to demand solutions to these issues. The Administrative Commission representing the member states established an ad-hoc group to explore both short-term and long-term solutions to meet the growing call for telework regimes. What the group delivered was the framework agreement on cross-border telework.
The core of the agreement is the criterion that no more than 49% of the remote work can be done from a cross-border worker’s country of residence without changes to their social security status. This percentage has been chosen as a threshold that provides elegant legal clarity, while allowing reasonable practical flexibility.
Teleworking for 25%–49% of your working hours only applies if the two countries involved have both signed the agreement; furthermore, the employer must submit a request. This emphasises the freedom of choice and falls within the mechanism of Article 16, which allows for deviation from the standard regulations.
In other words, application of the framework agreement is agreed between two countries, whereby both countries must ratify the agreement for it to be effective. This may create new complexities in cases where more than two countries are involved; particularly in cases of workers moving between three countries, one of which has not ratified the agreement.
To date, 18 countries have signed the agreement; the United Kingdom has indicated that it will not sign, due to the absence of Article 16. The other EU member states have yet to take a decision, and Italy has not accepted any ratifications.
So far in Belgium, 65 requests have been submitted for residents of other countries, mostly France and the Netherlands. During the first year following the agreement coming into effect, it can be applied retroactively, providing the employee is registered in the employer's member state.
This framework agreement is essentially a short-term solution provided by the ad-hoc committee; they will continue their work in order to allow more flexible teleworking options in Europe in the long term.
In our opinions, we rely on current legislation, interpretations and legal doctrine. This does not prevent the administration from disputing them or from changing existing interpretations.
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