Framework Agreement on Telework: 6 months later

Following the international context whereby employees tend to work from anywhere, the various EU social security authorities took an initiative in 2023 to come to a framework agreement which provides for a possible solution for employees doing regular telework from another country than the country where their employer is located.  

The framework agreement applies to employees who cross-border telework.  Cross-border telework refers to work done through a digital connection with the employer’s digital environment.  Manual labour activities such as construction works are not subject to the framework agreement.

The agreement provides an option in which an employee who works 25 percent to 49.9 percent in the country of residence and 50.1 percent to 75 percent in the country of the employer can be covered by social security in the country of the employer.

The framework agreement entered into force on 1 July 2023, for countries that had signed it by then.  If a country signed the Framework Agreement after 1 July 2023, the Agreement entered into force as from the month following the signature^[1].  Today 19 countries have signed the agreement.

In the past months, it was clarified that the country of the employer refers to the country where the employer has its registered office. Branches/fixed establishments are excluded. Thus, the framework agreement does not apply if a resident of Belgium is employed in the Netherlands and Belgium for a Dutch branch/fixed establishment of a German entity.

The geographical scope of the framework agreement is explicitly limited to telework performed in the country of the employer and the country of residence. This means that habitual (tele)work, regardless of the scope and nature of the work, performed in another country results in the framework agreement not being applicable outside the scope. It is therefore important to question the employee regarding his/her additional professional activities.

It has been clarified by the Belgian social security authorities that business trips that are incidental and marginal in volume should in principle not lead to the rejection of a request for application of the framework agreement. However, there is still much ambiguity about how different member states deal with situations involving business trips. In our view, it would be good if the EU provided further clarification on this.

The legal basis of the framework agreement is article 16 of the EU Regulation 883/04 which allows member states to derogate in mutual consent from the rules on multi-state employment included in article 13 of the same regulation.

It is thus an option to apply the framework agreement and therefore the employer or employee must file a formal application for an A1 certificate. If not (timely) done, the normal rules (25% threshold) will apply. 

If the employer files for the application of the framework agreement, the employee should agree. Although there is no formal consent to be given by the employee in the Belgian application tool (different as in other countries), we strongly advise to document this agreement of the employee in a separate annex to the employment contract.

With limited exceptions, a retroactive application for an A1 certificate under the framework agreement will be rejected.  The possibility for retro-active application of the framework agreement is only a one-shot provision for a year starting from the 1 July 2023 up to and including the 30 June 2024. After this date, retroactive applications may only include a past period of up to 3 months.

An application for an A1 certificate under the framework agreement must be filed with the authorities in the country of the employer who will issue an A1 certificate when the conditions under the framework agreement are met and they will inform the country of the employee’s residence of their decision. An A1 certificate will be issued for a maximum duration of three years at a time. The Belgian authorities stated that they will issue an A1 for 12 months at the time, to be renewed afterwards.  Renewals of the A1 certificate must be duly filed under the same strict deadlines as the first A1 certificate.

With 19 signatory states, it is clear that the new possibilities are generally supported by the EEA Member States. Nonetheless, according to the social security authorities, there is a relatively low number of applications for the framework agreement filed. This could be due to the current 1 year grace period at start-up, the uncertainties and issues with respect to taxation, the tools and procedure in various countries which are new and should get acquainted to and the passive attitude of employers (telework is often a request from the employee).

Nonetheless, we see the framework agreement as a good opportunity to make sure that for every employee working cross-border the appropriate A1 document is obtained which comes along with some legal certainty and peace of mind for employer and employee.