The Agreement categorises cross-border home-working scenarios:
1. Occasional working from home does not create a permanent establishment due to the lack of continuity and the employer not having access to the space.
2. Regular working from home with the possibility to work at the employer’s offices generally doesn’t establish a permanent establishment either.
3. Consistent home-working may create a permanent establishment depending on whether the employer has actual control over the workplace as well as the activities conducted at the location.
This needs to be assessed at the level of the individual employee.
Additionally, as a practical guideline, the Agreement establishes that if an employee works 50 percent or less of his or her working time from home during a year, there is no permanent establishment in any case. If 50 percent or more of the working time is spent working from home in a year, the presence of a permanent establishment depends on the factors mentioned in the Agreement.
The Agreement is applicable from its publication date of 8 December 2023.