Cross-border workers - navigating the challenges of social security coordination rules in the era of telework in the European Union

Abstract

In ¹ 2020, there were 1.7 million cross-border workers in the European Union, creating difficulties in determining the applicable legislation for social security matters. The reason for this complexity is that even in cross-border activities, the legislation of only one Member State is applicable according to the Coordination Regulation 883/2004. This article examines the evolving landscape of social security coordination in the European Union. It explores the interplay between the European principle of free movement of workers and the complexities arising from various national social security systems, combined with the increase in telework. The article outlines the foundational legal frameworks underpinning social security within the European Union, including the Coordination Regulation EC 883/2004, and discusses primarily the challenges in applying these rules to cross-border teleworkers. It further analyses the implications of the new Multilateral Framework Agreement, providing a nuanced understanding of its role in offering simplified procedures and legal certainty for habitual cross-border teleworkers. The article also highlights the Agreement's limitations, including its restricted scope and the persisting administrative burdens. The discussion extends to the broader context of ongoing legislative efforts and the need for more flexible and modern social security coordination rules in the European Union. The article aims to shed light on the critical issues surrounding social security coordination in an era of evolving work practices.

1. Introduction: The post-COVID workplace dynamics

In the evolving working life of the post-COVID world, one of the most significant trends reshaping the workplace is the rise of telework. ² The pandemic altered the traditional work paradigms, where the reality was crowded trains and full highways. Even if three years ago we would not have imagined ever going back regularly to the office, there is still a representative number of workers preferring teleworking at least some days a week to the regular physical office presence. In 2022, 10.2% of employed people in the European Union usually worked from home with a notable variance between European countries - 25% in Ireland compared to 1.4% in Romania. ³ The intersection of telework with the fundamental European principle of free movement of workers is particularly intriguing. In 2021, the European Union had 1.7 million cross-border workers, ⁴ of whom approximately 186,000 (10% in 2020) usually worked from home. ⁵ Even if the figures vary among Member States and industries, teleworking combined with cross-border activities should not be underestimated due to the resulting complexity of the applicable labour, ⁶ tax ⁷ and social security laws. This article focuses exclusively on the social security aspects. Taking into account the recent development in the field of social security, namely, the new Framework Agreement, this article will explain the coordination of social security laws in the context of cross-border teleworking within the European Union. During the COVID-19, pandemic employees were forced to work from home, including those residing in a different country than the employer's offices, highlighting the urgent need for modern rules. This started a broader discussion amongst scholars ⁸ and Member States of the European Union ⁹ rethinking the currently applicable rules for cross-border workers. Therefore, the question raised is whether the current rules applicable in the field of social security offer sufficient solutions to the changing working situation of cross-border workers.

At the beginning, one might ask why exactly it is so important to determine the applicable social security legislation. However, the answer is quite straightforward. The reason is that in the European Union, each Member State has its own approach to social security. To be more precise, the contributions rates, statutory schemes, entitlement conditions and level of social security benefits vary. This means concretely that the amounts of money workers need to deduct from their income and the institutions that collect the contributions differ depending on the Member State. Considering these national discrepancies, knowing under which legislation one falls is crucial. For those residing and working in the same country, determining the applicable legislation is relatively simple - the person will fall under the legislation of the State of residence. However, the scenario becomes complex for cross-border teleworkers whose residence and place of work are in different countries. Taking into account the number of affected workers, there is a need to elaborate more upon the legal consequences.

The objective is to describe the general principles of transnational social security law, the suspension of the application of the rules during the pandemic, and the implications of the Multilateral Framework Agreement.

2. The interplay of the free movement of workers and social security at the European level

The fundamental European principle is the free movement of workers, as stated in Article 45 of the Treaty on the Functioning of the European Union (TFEU). To facilitate this essential part of the (former Economic Community) free movement of workers, the Member States established clear and understandable rules for social security benefits and insurance periods through Regulation Number 3 ¹⁰ on social security for migrant workers in 1958 and Implementation Regulation Number 4. ¹¹ This regulation was designed to protect acquired social security rights and benefits and to aggregate insurance periods. The idea behind it was that workers would not leave their own country if their social security protection was at stake. In practice, it means that workers will not go abroad if their social security rights are not secured (e.g., pensions exportable to other Member States; periods completed under the legislation of another Member State should be taken into account). Additionally, it introduced the principle of exclusive effect, meaning that a person is subject to the legislation of a single Member State only (see Article 11(1) Coordination Regulation EC 883/2004). Consequently, these rules are binding, and workers cannot opt out or change the applicable legislation based on personal choice or a preference for the insurance conditions of another Member State. ¹²

Over time, Regulation Number 3 has undergone several changes, with the current Coordination Regulation EC 883/2004 ¹³ and Implementation Regulation EC 987/2009 ¹⁴ expanding its scope of application to include, for example, self-employed workers. However, beyond these regulations, there is no other binding legislation at the European level in the field of social security law. It is worth mentioning the Council Recommendation on access to social protection, which aims to provide access to adequate social protection for all workers and self-employed persons, and to establish minimum standards in the field of social protection. The objective is to enable access to social protection for workers who are not sufficiently covered by social security schemes and thus are exposed to greater economic uncertainty. ¹⁵ The instrument does not aim to coordinate the applicable legislation, but provides recommended standards for national systems. The particularity of the instrument is that Member States are not legally bound by the recommendation, leading to varied legal changes across Member States since its adoption in 2019. ¹⁶

Article 153(1)(c) TFEU empowers the European Union to support and complement the activities of Member States in the field of social security and social protection of workers, which indicates a shared competence that includes the ability to enact legislation, such as directives, or legally non-binding-recommendations. However, such European interventions should neither affect the fundamental principles of the national social security systems nor significantly affect the national financial equilibrium (see Article 4 and Article 153(4) TFEU). As a result, national law determines the exact personal scope, entitlement conditions and level of benefits of the social security system. Nevertheless, the coordination rules set in the Coordination Regulation are essential to achieving the aim of the free movement of workers (see Article 48 TFEU: ‘The European Parliament and the Council shall […] adopt such measures in the field of social security as are necessary to provide freedom of movement for workers’). At the same time, it is necessary to respect the special characteristics of national social security legislation and to design only a system of coordination (see Recital 4 of the Coordination Regulation). This ultimately leads to the fact that there is no harmonization, but coordination, of systems within the European Union. According to Frans Pennings, ‘coordination rules are rules intended to adjust social security schemes in relation to each other in order to regulate transnational questions, with the objective of protecting the social rights of persons in case the facts of their circumstances are not limited to one State’. ¹⁷ On the counterpart, ‘harmonization is the sum of international provisions directed at states which entail the objective or obligation that these States adjust their national law to the requirements of the harmonization provisions’. ¹⁸ This brings us to the biggest difference between labour law and social security, the amount of possible applicable legislation. For social security matters, one working situation can be subject to only one social security system, whereas two or more labour laws may be applicable (see Article 8(1) Rome I Regulation). ¹⁹ Therefore, it is crucial to determine the applicable social security legislation, as each Member State has different rules and mechanisms in place (e.g., in Germany, employees are also covered for healthcare through their employer; in the Netherlands, employees need to pay contributions towards their own healthcare).

Concretely, this means that in a cross-border situation, the Coordination Regulation and its rules help to identify which legislation is applicable, since only one can be applicable (exclusive effect).

3. The current rules of Coordination Regulation EC 883/2004

In order to provide a comprehensive understanding of the rules regarding social security coordination, it is essential to first outline the standard-setting of the Coordination Regulation. This regulation serves as the basis for determining the applicable social security rule in cross-border situations. By explaining the basic rules and the urge for action during the COVID-19 pandemic, the need for a Framework Agreement can be better understood.

To apply the Coordination Regulation, a cross-border situation is needed. This implies that the facts of the situation extend beyond the borders of a single Member State. ²⁰ Additionally, the person concerned must fall within the personal scope (as defined in Article 2), and meet the criteria outlined in the material scope (as described in Article 3), of the Coordination Regulation. Moreover, the situation should fall within the territorial scope of the Coordination Regulation, which encompasses the European Union and the European Economic Area (EEA) region.

3.1 Working in one Member State: lex loci laboris

The general rule regarding the applicable social security legislation, the State of employment principle (lex loci laboris), can be found in Article 11(3)(a) Coordination Regulation. This Article is used when a person works in only one Member State. According to this Article, a person pursuing an activity as an employed person in a Member State shall be subject to the legislation of that Member State. This rule has an exclusive effect (Article 11(1) Coordination Regulation), meaning that the person concerned has no choice and there cannot be a change due to a more favourable provision/legislation (a possibility in labour law).

3.2 Simultaneously working in different Member States

For cross-border teleworkers who live in one Member State but perform work in at least two different Member States, determining the applicable legislation is more difficult.

In such cases, Article 13 of the Coordination Regulation comes into play. According to Article 13(1)(a), a person who normally pursues an activity as an employed person in two or more Member States shall be subject to the legislation of the Member State of residence if he/she pursues a substantial part (meaning more than 25%, pursuant to Article 14(8) of the Implementation Regulation) of his/her activity in that Member State (lex loci domicilii). Marginal activity will not be considered when applying Article 13 of the Coordination Regulation, according to Article 14(5)(b) of the Implementation Regulation. The recommended indicator for marginal activity is activities that make up less than 5% of the regular working time or remuneration. ²¹ However, a case-by-case evaluation must be conducted to determine its applicability. This means that even before the COVID-19 pandemic, occasional work from home was not taken into account and did not influence the legislation applicable. ²²

3.3 Article 16 agreement among Member States

A last resort can be found in Article 16 of the Coordination Regulation, which gives the possibility to two or more Member States, the competent authorities of these Member States or the bodies designated by these authorities, to make an exception to the rules of the Coordination Regulation by common agreement in the interest of certain persons or categories of persons. With this procedure, Member States can find a solution to a particular working situation should they want to deviate from the coordination rules while not disregarding the interest of the workers. It is up to the Member States to decide whether they want to conclude such agreements.

3.4 The applicable rules during the COVID-19 pandemic

During the COVID-19 pandemic, the Administrative Commission ²³ adopted guidance on the legislation applicable to telework. ²⁴ This guidance recommended that telework in a Member State other than the competent (usual) Member State of employment, due to COVID-19, should not result in a change of applicable legislation. This was due to the fact that more people started working from home and therefore could easily fulfil the 25% criteria under Article 13(1)(a). This would have meant that the legislation of the state of residency would have become the applicable legislation. That guidance, which was successively extended until 30 June 2022, was adopted for reasons of force majeure in response to the specific and exceptional consequences of the health crisis and the subsequent temporary closure of Member States’ borders. It allowed, on request, the legislation of the State of the employer to remain applicable.

4. New Multilateral Framework Agreement

4.1 The legal nature of the agreement

From 1 July 2023, a new Multilateral Framework Agreement on the application of Article 16 of the Coordination Regulation in cases of habitual cross-border telework entered into force. According to Article 16 of the Coordination Regulation, two or more Member States may conclude an agreement which derogates from the coordination rules if it is in the interests of certain persons or categories of persons - in this case, ‘the habitual cross-border teleworker’. This framework is the solution provided by the Administrative Commission ²⁵ for the Coordination of Social Security Systems for dealing with the high number of employees who work from home some days of the week but have an employer and an office situated in another Member State. This agreement has been signed by 20 States ²⁶ so far. ²⁷

4.2 New rules concerning the applicable legislation

‘Telework still persists as a permanent new way of work.’ This is the acknowledgement in the Explanatory Memorandum to the Framework Agreement on the application of Article 16(1) of Coordination Regulation in cases of habitual cross-border telework. Considering this new post-Covid reality ²⁸ and the fact that consensus on reform of the Coordination Regulation will not be reached in the near future, the implementation of the Framework Agreement marks a significant achievement in the field of social security.

The personal scope of the agreement is limited to habitual cross-border teleworkers who are in an employment relationship and fall under the scope of application of Article 13(1)(a) of the Coordination Regulation, according to Article 2(2) of the Framework Agreement. Additionally, only cross-border telework is covered. According to Article 1(c) of the Framework Agreement, this is defined as an activity that can be pursued from any location and could be performed at the employer's premises or place of business and:

is carried out in a Member State or Member States other than the one in which the employer's premises or the place of business are situated and

is based on information technology to remain connected to the employer's or business's working environment as well as stakeholders/clients in order to fulfil the employee's tasks assigned by the employer or clients, in case of self-employed persons.

This means that the activity is not dependent on a certain location or surroundings. The work could theoretically be performed from everywhere. A digital connection (IT link) with the company's infrastructure is an integral part of the definition of working remotely as a teleworker. This entails that, as a rule, manual activities outside the employer's premises or business place do not fall within the scope of the definition. ²⁹ Finally, only employees who are employed by one single employer (or several employers all situated in the same Member State) are covered. A three-country situation is not covered by the Framework (see Article 2(2) of the Framework Agreement).

According to Article 3 of the Framework Agreement, upon request, a person who carries out habitual cross-border telework within the meaning of the Framework Agreement and is covered by Article 2, will be subject, on the basis of Article 16(1) of the Coordination Regulation, to the legislation of the State in which the employer has his registered office or place of business, provided that the amount of cross-border telework done in the State of residence is less than 50% of the total working time.

It is important to recall that the agreement does not introduce new automated rules. At the end of the day, it is still up to the employer or employee to make an individual request in line with Article 16 of the Coordination Regulation. Article 16 permits two or more Member States to conclude a common agreement for exceptions to the rules about determining the applicable legislation (e.g., Article 13) in the interest of certain persons or categories of persons. The advantages of this Framework Agreement are that the procedure is simplified, and legal certainty is offered in advance.

4.3 Procedure of the agreement

When a request is submitted for a person, the signatory Member States conclude an Article 16 agreement to derogate from Article 13(1)(a), designating the Member State where the employer(s) is situated as competent, provided that the amount of telework done in the Member State of residence is less than 50% of the total working time of that employee. If a person works for several employers who are located in the same Member State, the total time spent working for each employer combined will be used as a reference. This implies that the majority of the working time is spent in the Member State where the employer(s) is situated. Cross-border telework must be agreed upon between employer and employee formally or informally. The request for the application of the Framework Agreement must be made with the agreement of both parties. ³⁰

After the two parties agree to pursue this procedure, a request by the employer or the person shall be submitted in the Member State whose legislation the employee or person concerned requests be applied, under Article 18 of the Implementation Regulation. This means that the request must be filed with the competent institution of the Member State where the employer has its statutory seat.

Moreover, the Framework Agreement introduces a simplified procedure where both Member States give their consent in advance. This means that the competent institution of the Member State of the employer assesses, upon receipt of the request, whether the criteria of the Framework Agreement are fulfilled. In the event of a positive assessment, an A1 certificate will be issued and the (former) competent State of residence will be informed via EESSI (Electronic Exchange of Social Security Information), as per Article 4(5) of the Framework Agreement. If the conditions of the Framework Agreement are not met, the case is dealt with as a regular Article 16 request.

The Framework Agreement does not have retroactive effect. Until 1 July 2024, an A1 certificate can be applied for with retroactive effect from 1 July 2023, provided that social security contributions have been paid in the Member State of the employer. After 1 July 2024, the retroactive effect will be limited to a period of three months, on condition that the social security contributions have been paid in the Member State of the employer.

According to Article 4(4), an agreement under Article 3 of the Framework Agreement may be applied for a maximum of three years at a time, with extensions possible on submission of a new request. According to Article 6(2), the Framework Agreement shall enter into force on July 1, 2023, as long as at least two States have signed it (a threshold which, as noted, has been met). The Framework Agreement is concluded for a period of five years and shall be automatically extended each time for another five years without a review process taking place.

4.4 Analysis of the Framework Agreement

The Framework Agreement, while considered a reasonable compromise, has notable limitations that need to be addressed. The limitations include its restricted personal scope, which only applies to employees performing telework through a digital connection. This highlights the challenge of distinguishing between tasks that can be only conducted on the employer's premises and those suitable for telework, requiring employees to be aware of which activities can be performed from home. The Explanatory Memorandum mentions that certain offline tasks can be considered telework, such as the reading of materials or the grading of tests offline. ³¹ Offline tasks such as transportation or construction work are not covered, resulting in a discrepancy in treatment between white-collar and blue-collar worker (where the 25% rule still applies to blue-collar workers). Moreover, there are no new rules for self-employed individuals engaged in cross-border activities.

It is important to note that neither the Framework Agreement nor the Explanatory Memorandum state explicitly who is responsible for supervising the evaluation of the actual working time performed. It is likely that the same mechanism as the Coordination Regulation will be used. This means that the national authorities will need to assess the facts, taking into account not only the wording of contractual documents but also factors such as how employment contracts between the employer and the worker concerned had previously been concluded in practice, the circumstances surrounding the conclusion of those contracts and, more generally, the characteristics and conditions of the work performed by the company concerned, in so far as those factors may shed light on the actual nature of the work in question. ³² This raises the question of managing and thus evaluating work situations that have a teleworking time that varies greatly.

Additionally, the framework's applicability is restricted to combinations involving two Member States, even if additional countries have also signed the Framework Agreement. This limitation arises from the use of Article 16 of the Coordination Regulation. The Administrative Commission may have intended to avoid the practice of forum shopping, since with two employers in two different Member States and the employee living in a third state different legislation would be available, resulting the most accommodating legislation being chosen. Notwithstanding, some working arrangements with multiple employers will not be covered. This means that if an employee completes a substantial amount of his or her work activity (25%) in the State of residence and has two employers located in two Member States other than the State of residence, the legislation of the State of residence will apply, even if none of the employers has offices in this Member State (see Article 13(1)(a) Coordination Regulation).

Furthermore, different treatment may occur for employees of the same employer when determining the amount of telework allowed, potentially leading to discrimination against intra-community migrants. ³³ Employers could be more generous with employees working and residing in the same country because a change in legislation is not possible. On the other hand, employees working and residing in different countries may be seen as an administrative burden for the employer, as they may be subject to different applicable legislations. Even with the new framework in place, employers still have to follow administrative procedure and the potential for discrimination remains, as the ‘national employee’ may be allowed to spend 50% or more of their working time doing telework, while the ‘cross-border employee’ may only be permitted to do so for up to 49% of the time, without triggering changes in the legislation applicable.

However, it is important to acknowledge that the Framework Agreement reopened the discussion concerning the needs of employers with employees residing in a different Member State from their place of work. By allowing employers to agree to home office arrangements (for less than 50% of the total working time) without triggering legislative changes, the question is raised as to whether it is a step in the right direction, as employees might prefer the legislation of their State of residence to be applicable. It is also doubtful whether the agreement is sufficient to provide the necessary flexibility in light of the new work reality, since the rules are not mandatory. Overall, the parties concerned need to be aware of the rules, and should they want to apply them, they need to make a request to the authorities, which still need to evaluate the case and provide a decision.

5. Further limitations in the field of coordination rules

When the COVID rules were still applicable, scholars dared to ask whether the European Union would still rely on the current coordination rules for cross-border employment between two or more Member States. ³⁴ The reality is that there was a will to change the current rules, but unfortunately, the only solution found was through an agreement rather than a change of the general and mandatory rules of the Coordination Regulation. It is therefore worth mentioning the limitations of the current coordination rules beyond the Framework Agreement.

Currently, the coordination of social security lacks modern and flexible rules which align with current working practices. The new Framework Agreement could be a step in the right direction, but due to the lack of general application for all cases, we still need to assess its actual impact and whether it will facilitate these types of working arrangements. The request procedure should be still given the benefit of the doubt (see section 5.3).

Overall, there is an urgent demand for new coordination rules that provide clear and realistic solutions for modern and fast-changing working practices. Various scholars propose different ways for addressing the current challenges. One commonly questioned aspect is the criteria relating to physical - meaning in-person - attendance at the employer's workplace. One solution suggested is to increase the percentage threshold (from 25% to 40%, 50% or 60%). ³⁵ Some even argue for its elimination and the introduction of the criteria of ‘working activity exclusively established and used in the working relationship with the employer or client’. ³⁶ Another idea is to adopt the concept of a fictitious place of work as used in the current conflict rules (see Article 11(4) Coordination Regulation, according to which workers on a seagoing vessel fall under the scope of the legislation of the flag state; and Article 11(5) Coordination Regulation, according to which flight and cabin crew have a home base). ³⁷ Additionally, there is a proposal to explicitly include temporary non-structural telework or ‘workations’ within the scope of the posting rule to ensure greater legal certainty on the matter. ³⁸

Finally, another solution could be to incorporate the criteria of teleworking into Title II of the Coordination Regulation (Articles 11–16), as part of the mandatory rules, to avoid fragmented solutions such as those currently provided under the Framework Agreement. This would also mean that the Member States would need to decide whether the legislation of the State of the employer's workplace or that of the State of the employee's residence would be applicable. Opting for the State of the employer's workplace simplifies (trans-)national administrative processes for the employer, enhancing the appeal of hiring teleworkers from different Member States. This would also underline the lex loci laboris principle (State of employment principle (see 3.1)) of the current Coordination Regulation. On the other hand, choosing the legislation of State the residence of the employee would be more favourable for national administration since the employee would - apart from days spent working in the office - mostly use national infrastructure (like health services or unemployment services in case termination of contract). This decision of balancing the two possibilities perspective is more of a political decision. However, it is a decision that the Member States need to make in order to adapt to the current working situations of many Europeans and to provide clear and stable solutions.

6. Conclusion

This article reveals that several critical issues persist despite recent legislative efforts. The primary challenge is the current Coordination Regulation's rigidity. The rules are designed for traditional employment scenarios and struggle to adapt to the modern realities of teleworking and other flexible work arrangements. The Framework Agreement, while a step forward, offers limited solutions. It simplifies procedures and provides some legal certainty but is restricted in scope, and employers and employees still need to follow an administrative procedure. Therefore, it is time that telework became part of the mandatory coordination rules.

Finally, the ongoing trialogues and negotiations to amend the Coordination Regulation reveal the difficulty in finding a consensus among Member States. In 2016, the European Commission proposed amending Coordination Regulation EC 883/2004 and Implementation Regulation EC 987/2009. ³⁹ The Commission recommended amending four areas: access to social benefits for economically inactive citizens, long-term care benefits, unemployment benefits and family benefits. ⁴⁰ Ongoing trialogues between the Council, Commission and Parliament since 2019 have not yet yielded agreement. In December 2021, there was hope that a final agreement would be reached, but it failed. The complexity of the negotiations lies primarily in addressing issues concerning the rules about posting and the aggregation and calculation of unemployment benefits. ⁴¹ Regarding posting, the Commission aims to amend the validity of posting certificates to prevent fraudulent use. However, the greater challenge lies in establishing new conditions for allowing the export of unemployment benefits and defining the rules governing the right to unemployment benefits for frontier workers. ⁴² To date, the Parliament and Council have not achieved a qualified majority on a common text. The significance of this problem is underscored by the fact that not all Member States have yet signed the Framework Agreement.

In summary, the existing social security coordination rules in the European Union, especially concerning cross-border teleworkers, do not align with modern working practices. It is crucial that these issues are tackled to develop a flexible and responsive social security system that accommodates the evolving nature of work within the European Union.