A framework agreement has been published that brings the social security treatment of cross-border teleworkers in the EU into line with that of EU posted employees. The Social Security regulation applicable to cross-border teleworking is no longer a ‘rara avis’ but an increasingly common phenomenon that companies will have to learn to live with.

The summer is over and, with it, one of the most unnoticed news in the Social Security world in the European Union. This is the Framework Agreement on the application of Article 16(1) of Regulation (EC) No 883/2004 in cases of regular cross-border teleworking.

This agreement was born out of the aim to update the legal framework and adapt it to the reality surrounding new forms of work provision. And, in this point, is where a modern classic of cross-border service provision comes back: teleworking. On this occasion, , teleworking from the perspective of teleworking in an EU Member State other than the one in which the employer’s premises or domicile are located.

It seemed difficult that there could be any further common progress on social security at EU level, but “eppur si muove”. Progress has been made in our regulatory framework and in the Community framework to embrace phenomena such as digital nomads or cross-border teleworking by flooding the debate of our legislators and finally giving them legal content. This agreement is a notable example of this.

This time it is the turn of the Social Security regime for employees teleworking, who provide their services in one or more Member States other than the one in which the employer’s premises or domicile are located. Moreover, this situation must take in account the additional element that the work must be based on information technology in order to the employee remains connected to the company’s work environment with the aim of being able to carry out the tasks assigned to him or her.

From this point onwards, a regulation, which is similar to the already existing in Regulation 883/2004, is applied to posted employees. In other words, it is established that the cross-border teleworker is subject to the Social Security legislation of the State where the employer has its headquarters or domicile (provided that they are signatory States of the agreement) and not where the teleworker is teleworking.

The teleworker may benefit from this new regime, upon request, provided that the cross-border telework carried out in the State of residence is less than 50% of the total working time. In such cases, the relevant A1 certificate will be issued by the competent Social Security institution.

Uniquely, employees who (i) usually perform an activity different from cross-border telework in the State of residence, (ii) usually carry out an activity in a State non-signatory of the agreement and/or (iii) are self-employed have been excluded from the scope of this agreement.

The approval of the agreement, which is effective from 1 July 2023, is an excellent news for EU industrial relations. As of 30 June 2023, the agreement had already been signed by the following countries: Germany, Switzerland, Liechtenstein, Czech Republic, Austria, the Netherlands, Slovakia, Belgium, Luxembourg, Finland, Norway, Portugal, Sweden, Poland, Croatia, Malta, Spain and France. A new unknown has now been cleared up within the European Union area, which it is applicable to cross-border teleworkers.

Although it is true that the agreement is intended to be temporary (it is valid for five years, renewable for periods of the same duration), it lays certain foundations for the configuration of a more permanent, common and integrated regulatory framework for the different forms of service provision with a Community element. Beyond its usefulness, it will clearly contribute to legal certainty for companies and employees.

As can be noted, teleworking – now with cross-border implications – is a phenomenon that is gradually being contoured by new legislative updates and with which all companies will have to learn to live.