Guidelines for the applicable social security legislation in the case of teleworking within the European Union

With the circular 33/20.09.2024 e EFKA notifies the decision with number H14 of 21/06/2023 of the Administrative Committee for the Coordination of the Social Security Systems of the EU regarding the determination of the applicable social security legislation a) during the COVID-19 pandemic and b) during the exercise of teleworking activities by workers within the EU/EEC. 1/Switzerland in the period between 1 July 2022 and 30 June 2023 and from 1 July 2023 onwards.

A. Regarding the determination of applicable social security legislation during the COVID-19 pandemic, the rule is confirmed that what applicable legislation was determined and applied to persons in accordance with Title II of Regulation (EC) 883/2004 before the commencement of the pandemic, should not change due to the COVID-19 pandemic. This is because, on the one hand, the exceptional circumstances prevented many people from actually exercising their employment activity in the Member State where they normally exercised it before the start of the COVID-19, and on the other hand, they changed the distribution of the working time of employees who were active in two or more Member States.

In addition, with regard to a new employment which started within the time period from 01.02.2020 to 30.06.2022, since the individuals could not travel to the country of new employment and carried out their activity via teleworking due to the restrictions of COVID-19, they should be covered for social security purposes in the country of new employment. The legal basis for the aforementioned interpretation is the general principle of force majeure, which in this particular case is based on the exceptional situation created by the COVID-19 pandemic.

Therefore:

i. persons who have taken up new employment but, due to the application of national measures during the COVID-19 pandemic, it has not been possible to travel to the Member State of the new employment and have been asked to work via telework until the end of the application of the relevant national measures, would have to be covered for social security purposes  in the Member State of the new employment.

ii. in the case of posted workers forced to remain in the country of posting due to the COVID-19 pandemic, their actual situation should not affect their legal status, and therefore, they should maintain the
social security  status they had the day before the entry into force of the national measures introduced during the COVID-19 pandemic.

iii. in the case of a person who worked in two or more Member States and who, prior to the start of the teleworking activity due to the COVID-19 pandemic, was not covered in the State of residence, because his working time in the State of residence amounted to less than 25% of the total working time (during the reference period of 12 months) the activities carried out by teleworking in the country of residence,
should not be taken into account, when teleworking was imposed by the national measures related to the COVID-19 pandemic, even if the such activities exceeded the minimum of 25% of working time in a 12-month reference period. Therefore, changing this rate should not lead to a change in the applicable legislation.

B. Regarding the determination of the applicable social security legislation in case of teleworking after 01.07.2023.

"Cross-border telework", which is carried out on the basis of an agreement between the employer and the employee, is defined as the activity that can be carried out from any location and could be performed at the employer's premises or at the place of business and at the same time meets the following two conditions:

i. It takes place in one or more Member States other than that in which the employer's premises or place of business are located and

ii. It relies on information technology to keep the employee connected to the employer's or business' work environment as well as customers in order to fulfill the tasks assigned to the employee by the employer

Cross-border telecommuting should not be confused with the employee's work which is performed at the employer's client's premises using the client's IT & Communications Technologies.

In case of continuous, complete and unlimited teleworking in a member state, the employee is subject to the social security legislation of the member state in which he carries out his activity through teleworking (Article 11 par. 3 of Reg. (EC) 883/2004).

Exceptions to the above rule arise when:

i. the cross-border telework is carried out by agreement between the employer and the employee, is casual, limited in time (i.e. not exceeding 24 months) and does not form part of the normal work pattern, in which case the employee is still subject to

ii. cross-border teleworking is normally and habitually carried out, in one or more Member States, other than that of the employer's headquarters, when it is part of the employee's normal work pattern, based on an agreement between employer and employee, in which case it is considered in which place the employee carries out an essential part of his activity (Article 13 of Regulation (EC) 883/2004).

iii. there is an agreement between the competent authorities of the member states, following requests from persons who wish to be exempted from being included in the social security of the member state that becomes normally competent (article 16 par. 1 of Reg. (EC) 883/2004).

It is pointed out that in every case of salaried activity with cross-border teleworking, it is necessary to determine the applicable social security legislation in accordance with the provisions of Regulations 883/2004 and 987/2009 [articles 11, 12 and 13 of Reg. (EC) 883/2004 ] and the portable document A1 is issued by the competent Agency.

Given that the agreement between employer and employee regarding cross-border telework is carried out in accordance with national law, in cases where an employee provides dependent work via telework to an employer based in Greece which is characterized by cross-border working, the provisions of Law 4808/2021 apply (Government Gazette A 101/19.6.2021, Chapter B') regarding the agreement between employer and employee for the provision of telework.