EU Framework Agreement of 1.7.23

Many office employees have been working from home during the pandemic. This development has now become permanent: even after the end of the pandemic, many "desk workers" are not permanently back in the office, but are now increasingly working from home, and in some cases entirely from home. This is also the case in the cross-border area and there is the question of where one is actually insured. This is where the law on the coordination of social security systems (Regulation (EC) No. 883/2004 (Regulation 883/2004)) comes into play.

What does the coordination law basically provide for?

Title ll of Regulation No. 883/2004 contains provisions on the applicable legislation (so-called conflict-of-law rules). An important principle of Art. 11 of Regulation 883/2004 is that employees and self-employed persons are regularly subject to the legislation of only one Member State and that this should in principle be the country where the gainful employment is pursued. In the case of employees, the applicable legislation regularly depends on the place of employment. If there is a permanent establishment, then the assignment to the law of a Member State is easy in this respect. However, this is not so easy for teleworkers because they sometimes work in different places (partly at home/ partly in the office) and there may also be a national border in between. In this respect, they are employees with several places of employment in different states and here Art. 13 of Regulation 883/2003 knows two associated factors:

• The legal provisions of the state of residence apply if employees also exercise a substantial part of their employment there.
  
• Otherwise, the legal provisions of the state where the employer has its registered office apply.
  

What has been thought about for the teleworkers?

During the pandemic, it was agreed not to change the previous application of the law to employees working from home and therefore there will be no change in the competent Member State. So if someone was previously insured in Germany because the place of employment there is with the German employer, but in the meantime the person works predominantly from home in France, then German law remains applicable. This determination is valid until 30.6.2023.

As of 1.7.2023, a a framework agreement will offer a simplified, appropriate solution. Art. 16 para. of Regulation 883/2004 is a legal basis as a so-called agreement of exemption, so that Member States can agree on a specific application of the law in individual cases in derogation of the general conflict-of-law rules. In future, the registered office of the employer will be decisive, provided that the "home office" accounts for less than 50% of the employee's total working time. The basic requirement is that the employee and the employer must be resident/ established in Member States which have signed the general framework agreement according to Art. 16 para. 1 of Regulation 883/2004. The procedure is also simplified because only the competent body in the Member State of the employer's registered office checks whether the conditions of the framework agreement are met in the individual case. If this is the case, an A1 certificate is issued and exchanged between the institutions within the framework of the electronic exchange of data between social insurance institutions (EESSI: Electronic Exchange of Social Security Information). The employee also receives an A1 as proof.

Which are the participating Member States?

In addition to the National Association of Statutory Health Insurance Funds (GKV-Spitzenverband), German Liaison Office for Health Insurance Abroad as the competent body in Germany, the competent bodies in Belgium and Austria are also expected to sign the aforementioned framework agreement. The Netherlands has also already announced that it will follow the framework agreement. It is to be expected that more Member States will join in.