The border closures due to COVID-19 particularly affected cross-border workers, who were unable to commute to their place of work and were forced to telework from their residence. This led to countries having to agree bilaterally on the conditions of this situation, with Belgium being one of the most prominent examples. Belgium managed to develop agreements with each of the countries with which it borders.
Following this experience and these bilateral agreements, the European Commission, through the Administrative Commission for the Coordination of Social Security Systems, created an information note in June 2020 on intra-EU telework. The note contained a list of problems identified as a consequence of the pandemic and possible solutions on the basis of Regulations 883/2004 and 987/2009.
How did the border closure affect cross-border workers?
A cross-border worker is a worker who lives in one state and commutes to work in another state on a daily basis. He/she fulfils his/her social security obligations in the country where he/she works and therefore, if he/she is unable to commute and works from his/her residence, he/she should change this status. To prevent this from happening and on a temporary basis, the States agreed on the exceptional situation, reinforced by the European Commission.
The Article II of Regulation 883/2004 determines the applicable social security legislation, namely that a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State.
Workers, whether employed or self-employed, cannot choose the social security legislation applicable to them and must be insured in only one Member State. In the event of a conflict, the States concerned must agree on a solution between themselves.
Article 14 of Regulation 987/2009 states that the percentage of 25% shall be used to determine whether the person carries out a substantial part of his activity. This means that an employed person who spends more than 25% of his working time in a State must fulfil his obligations in that State. Also self-employed persons, for whom the turnover, working time, number of services rendered or income will be determined.
In case that workers carry out their activity in more than one State, 25% of the total working time performed in each of the States will also be taken as a reference.
What happens after the COVID-19 exceptional situation?
The calification of the Administrative Commission for the Coordination of Social Security Systems was published in June 2020 urging Member States to take the necessary measures along these lines. The exceptional situation gives a temporary character to this note, but the fact is that the Commission has continued in line with these recommendations and offers an adaptation period until 31 December 2022 for the Social Security Administrations of the Member States to reach agreements if necessary.
For more information:
Impact of teleworking during the COVID-19 pandemic on the applicable social security