Cross-border telework in light of the Rome I-Regulation and the Posting of Workers Directive

Abstract

Labour mobility within the European Union can take multiple forms and is becoming an increasingly diversified phenomenon. On the one hand, workers can move physically from one Member State to another for a short or long stay, while, on the other hand, virtual migration is rising. Partly due to globalisation and the Covid-19 pandemic, cross-border telework – which can take place anytime and anywhere – has become an integral part of society. Whereas the social security and tax laws applicable to these cross-border teleworkers have been researched extensively, the applicable labour law, following the Rome I-Regulation and the Posting of Workers Directive, remains unclear. The same is true regarding the qualification of such cross-border teleworkers as posted workers under the free movement of services. Indeed, these legal frameworks include a general approach without prescribing specific connecting factors or conditions of application tailored to the virtuality of cross-border teleworkers. Consequently, this contribution examines the labour law applicable to cross-border teleworkers within the EU and the (un)surmountable bottlenecks that arise in applying the legal frameworks currently in place.