Employers with employees who live in another EU member state, and complete at least part of their work from their country of residence, should take note of the recently concluded Framework Agreement governing social security coverage for these frontier teleworkers.
On 6 June 2023, the Dutch Minister of Social Affairs and Employment wrote a letter to the House of Representatives on this subject. Here, we discuss some of the main issues raised, the most important of which concern the application of social security legislation.
Ordinarily, an employee is subject to the social security legislation of the member state where they work. If an employee works in two or more Member States, for example partly at the employer’s office in one member state and partly from home in another, the applicable social security legislation may change. If an employee works substantially (i.e. at least 25%) from their member state of residence, that employee will be subject to the social security legislation of their country of residence. In these circumstances, the employer would have to pay social security contributions in that country. This could mean not just higher contribution costs, but also a higher administrative burden. And these additional complexities could be reasons for employers to be cautious about allowing employees to work from home if they live across the border.
During the pandemic, different rules were introduced for frontier workers in order to prevent employees working from home from falling under a different social security system. Then, for the period between 1 July 2022 and 1 July 2023, a so-called transition period was agreed at EU level. This was done to allow member states to come up with a solution to social security coverage for frontier workers who continued to telework from home.
1 July 2023 is almost upon us and, in view of the approaching deadline, the Framework Agreement on Structural Teleworking was drawn up. The Netherlands has signed the Framework Agreement. Other countries that have signed, or have indicated that they will, include Germany, Switzerland, the Czech Republic, Liechtenstein, Belgium, Luxembourg, Austria, Slovakia, Ireland, Lithuania, Estonia, Norway, Malta, Portugal and Poland.
The Framework Agreement means that, upon request, frontier workers can telework from their State of residence up to 50% of their total working time, without any change in the applicable social security legislation. The remaining working time (i.e. at least 50%) must be physically worked in the member state where the employer is established. If these requirements are met, the social security legislation of the Member State where the employer is established will continue to apply.
Dutch companies or their employees wishing to make use of the Framework Agreement can do so by making an application to the SVB for this purpose. If no application is made, the ordinary rules of EU law will apply, as outlined above. In the Netherlands, the application form can be completed and submitted digitally to the SVB from 1 July 2023. Applications may initially take longer than usual to be processed, the SVB has announced, but from 1 July 2024 it is expected that the SVB will be capable of full implementation.
There have been other recent developments in related areas.
We will continue to keep you informed of further developments on this important topic. Should you have any questions or require advice, please do not hesitate to contact a Ius Laboris lawyer.
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