Skip to content In light of the flexibility and digitalisation of the labour market, as well as the increase in cross-border telework, forced by the Covid-19 pandemic, remote work and telework have become much more frequent.
In order to mitigate the effects of such working modes on the applicable legislation on social security in the short run, the European Commission issued a multilateral Framework Agreement on June 21st 2023.
Pending the revision of community regulations and the adoption of a specific legislation on cross-border telework in the EU, the Agreement provides a solution that guarantees the interests of workers, employers and social security institutions.
For an overview of international social security, in terms of jurisdiction and international treaties, take a look at our guide on Social Security in Labour Law.
Scope of application of the Framework Agreement on cross-border telework
The recipients of the Agreement are those workers who fall under the scope of application of Art. 16, par. 1, of Regulation (EC) n. 883/2004.
Indispensable conditions for such workers are their residence in a signatory State and their employers’ registered office or place of business in another signatory State.
The Framework Agreement on cross-border telework also covers those workers to whom the legislation of the State of residence would be applicable, as a result of habitual cross-border telework, pursuant to Art. 13, par. 1, lett. a) of Regulation (EC) n. 883/2004. Such workers have to be employed by one or more companies or employers (hereinafter referred to as “the employer”), having their registered office or place of business in a single other signatory State.
Art. 1 of the Framework Agreement defines “cross-border telework” as any activity carried out in one or more Member States, other than that in which the premises or place of business of the employer are located.
Such activity must be based on information technology, allowing workers to stay connected with the employer’s work environment or with clients, in order to perform the tasks assigned by the employer, in the case of employees, or by clients, in case of self-employment.
Signatory States to the Framework Agreement on cross-border telework
The Agreement only applies to signatory States. For those States adopting it after July 1st 2023, the Agreement will enter into force starting from the first day of the month following its signing.
To date, signatory States include:
- Austria;
- Belgium;
- Croatia;
- Czech Republic;
- Finland;
- France;
- Germany;
- Italy;
- Liechtenstein;
- Luxembourg;
- Malta;
- Norway;
- Poland;
- Portugal;
- Spain;
- Sweden;
- Switzerland;
- Netherlands;
- Slovenia;
- Slovakia.
Italy signed the Agreement on December 28th 2023 and it entered into force on January 1st 2024.
INPS, through its Message n. 1072, issued on March 13th 2024, has provided the first practice guidelines for its application, in relation to habitual cross-border telework.
Conditions for the applicability of the Framework Agreement
Pursuant to Art. 2, par. 3, the Agreement applies exclusively to cases of habitual cross-border telework.
Employers may submit a request to subject workers to the legislation on social security of the State in which the employers have their registered office or place of business, if certain conditions are met:
- The worker’s State of residence must be different from the State of the registered office or place of business of the employer;
- Cross-border telework in the State of residence must account for less than 50% of the total working time;
- The request must be submitted with the consent of the employer and the employee.
For all those cases not covered by the Agreement, the parties concerned are entitled to conclude an individual agreement, pursuant to Art. 16, par. 1, of Regulation (CE) n. 883/2004. For the purposes of the application of the Agreement, it is necessary that both States concerned (the worker’s State of residence and the State where the employer’s place of business is located) are parties to the Agreement.
Legislation applicable to cross-border telework in the EU
Art. 3 of the Agreement signed by Italy follows the standard model. Thus, as provided for by Art. 16, the Agreement places an exception, with respect to Artt. 12 and 13 of the abovementioned Regulation. When a worker or an employer submits a request pursuant to Art. 16, the special provision of the Framework Agreement applies.
In other words, Art. 3 introduces the option to derogate from the general rule for determining the legislation applicable to cross-border telework, in case the activity is carried out in two or more Member States. This allows to maintain the legislation of the State where the employer’s registered office or domicile is located.
Art. 13, par. 1, lett. a) of Regulation (EC) n. 883/2004, indeed, provides that a person who habitually carries out an employed activity in two or more Member States is subject to the legislation of the State of residence, in case such activity accounts for 25% or more in that State.
Time limits of the derogation requests
Pursuant to Art. 4 of the Agreement, derogation requests referred to in Art. 3 of the Agreement must be submitted in the Member State whose legislation the worker is to be subject to, in accordance with the provisions contained in Art. 18 of Regulation n. 883/2004. This means that applicants must transmit the requests to the competent institution of the Member State where the employer’s registered office or place of business is located.
The applicable legislation, determined according to the derogation request, may remain in place for a maximum period of three years at a time, with the possibility of extension, upon submission of a new request.
Requests may refer only to periods of cross-border telework that are temporally placed after the date of entry into force of the Agreement for both signatory States concerned.
Submission of the requests, pursuant to Art. 16 of Regulation (EC) n. 883/2004
As already mentioned, derogation requests must be submitted in the Member State where the employer’s registered office or domicile is located.
Should any change in the factual situation that led to the acceptance of the application occur, such circumstance must be immediately notified by the employer or the worker to the Member State whose legislation applies (the employer’s State). In that case, such Member State will have to reassess the case and, if necessary, withdraw or revoke the certificate of applicable legislation (portable document A1).
Finally, the eighth section of INPS’s Message n. 1072 has provided clarifications on how to submit applications for the certificate of applicable legislation (portable document A1), pursuant to Art. 3 of the Agreement. The application must be accompanied by a copy of the teleworking agreement between the employer and the employee.
Studio A&P provides consulting services for the drafting, integration and revision of compulsory cross-border teleworking agreements.
For more information, visit our webpage on Transnational Remote Working projects.
Derogation requests are handled by the regional Directorates in charge of managing the agreements under Art. 16 of Regulation (EC) n. 883/2004, based on the worker’s country of residence.