Last Updated on January 17, 2024
On 28 December 2023 Italy signed, with effect as of 1st January 2024, the Framework Agreement on the application of Article 16 (1) of Regulation (EC) no. 883/2004 in cases of habitual cross-border telework.
The context
One of the consequences of the Covid-19 pandemic was the increase in flexibility and digitalization of the labour market and the spread of telework, also cross-border.
In recent years there has been a debate on the possibility for remote workers, who carry out their work activity in a State different from the one in which the employer has its premises, to request an A1 form to maintain social security contributions in the latter State.
Regulation (EC) no. 883/2004, which identifies the applicable social security legislation in case of workers who perform their activity in more than one EU State and the cases in which A1 forms may be requested, was drafted in a time when remote work was not as common as nowadays and it appeared that the social security bodies of the different Member States interpreted it in different ways with reference to this new phenomenon.
The Framework Agreement under Article 16 is a means that allows Member States to derogate to the ordinary rules to protect specific categories of workers such as, in this case, remote workers.
Clear criteria have therefore been established to guarantee increased flexibility in the use of remote working without this determining a shift in applicable legislation in social security.
The States of the European Union, the European Economic Area and Switzerland have the possibility (not the obligation) to sign the Framework Agreement, which entered into force in many States on 1st July 2023. After months of uncertainty, also Italy has finally signed it.
Scope of application
The Framework Agreement applies to the cases in which an employee of an employer with its premises in a State that signed the Framework Agreement, carries out cross-border telework in another signatory State, in which they have their residence.
It does not cover instead persons who:
- habitually pursue an activity other than cross-border telework in the State of residence and/or
- habitually pursue an activity in a state other than those where the employer has its premises or the employee their residence and/or
- are self-employed.
Cross-border telework is defined as an activity that can be pursued from any location and could be performed at the employer’s premises and that: - is carried out in a Member State or in Member States other than the one in which the employer’s premises or place of business are situated and
- is based on information technology to allow the employee to remain connected with 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.
Applicable social security legislation
Employees who habitually perform cross-border telework may request an A1 form pursuant to Article 16 of Regulation (EC) no. 883/2004 in order to maintain the application of the social security legislation of the State in which the employer has its premises, provided that the cross-border telework in the State of residence is less than 50% of the total working time.
Procedure
The requests for an A1 shall be submitted in accordance with Article 18 of Regulation (EC) no. 987/2009.
The Framework Agreement does not cover requests if they concern a period prior to its entry into force.
Moreover, the Framework Agreement does not cover requests with retroactive effect unless during the period for which coverage is requested, social security contributions were paid in the State in which the employer had its registered office or place of business and:
- the requested period prior to the date on which the request was submitted does not exceed three months, or
- the request is submitted no later than 30 June 2024 and the period prior to the date on which the request was submitted does not exceed twelve months.
The A1 form under the Framework Agreement may be applied for a maximum of 3 years, with possible extensions.
As of 13 January 2024, the following States have signed the Framework Agreement: Austria, Belgium, Croatia, Czech Republic, Finland, France, Germany, Italy, Liechtenstein, Luxembourg, Malta, Norway, Poland, Portugal, Spain, Sweden, The Netherlands, The Slovenian Republic, The Slovak Republic.
Our Global Mobility team is at your disposal for any clarification or support you may need.
For information: mobility@toffolettodeluca.it
