EU framework agreement on cross-border telework: Which countries are participating?

The framework agreement on EU cross-border telework, allowing employers and employees to agree to deviate from the regular social security coordination rules in specific cross-border teleworking situations will apply as from 1 July 2023, when the existing “no-impact” position ends.

The agreement follows article 16 of Regulation (EC) No. 883/2004 on the coordination of social security systems, based on which competent authorities may provide for exceptions by common agreement in the interest of certain persons or categories of person. Under the agreement, the social security legislation of the member state of the registered seat of the employer would continue to apply (provided an article 16 agreement is explicitly requested to that effect) to employees:

1. With only one employer (or multiple employers with a registered seat in the same member state);
2. Who habitually work in the state where the statutory seat of their employer is established and habitually cross-border telework in their residence state; and
3. Where both conditions 1. and 2. are fulfilled, for whom cross-border teleworking in the state of residence comprises less than 50% of the total working time.

For further information, see our previous Newsflash/Alert of 6 April 2023. 

Signatories to the agreement

The framework agreement only applies where both the residence state and the state of the registered seat of the employer are signatories. Since the agreement will enter into force on 1 July 2023, it is critical to know which countries have signed or intend to sign the agreement.

Ten countries have so far signed the agreement: Austria, Belgium, Czech Republic, Finland, Germany, Liechtenstein, Luxembourg, Netherlands, Slovakia, and Switzerland. A further seven have committed to sign, albeit for some potentially at a later date: Croatia, Estonia, Hungary, Ireland, Lithuania, Malta, and Norway.

Where a country decides to sign the framework agreement on or after 1 July 2023, the agreement will take effect for that country on the first day of the month following the month of signature.

Limited retroactive application of article 16 requests

In principle, a request under the framework agreement can only be made for the future and cannot have retroactive effect. However, some flexibility is granted where social security contributions have been paid in the signatory state of the employer, as follows:

1. A request can include a past period of up to three months prior to the date on which the request was submitted; and
2. In the period 1 July 2023 through 30 June 2024 only, requests may be submitted to cover a past period of up to 12 months but may not include a period prior to the entry into force of the framework agreement in the signatory member state.

An article 16 agreement will be valid for a maximum period of three years. If the telework continues beyond the three years and the necessary conditions are still met, a new request can be submitted.

How Deloitte Legal can help

Given 1 July 2023 is fast approaching and taking into account the limited retroactivity of article 16 requests, it is of the utmost importance for employers to effectively map their cross-border population, to perform a multidisciplinary risk analysis, and to decide on which business approach to take.

Deloitte Legal will keep you informed on further developments and can assist with requests for article 16 agreements for cross-border teleworkers together with all the multidisciplinary aspects to be evaluated in the decision process.