The Application of the Conflict Rules of the European Social Security Coordination to Telework During and After the COVID-19 Pandemic
| Author | Herwig Verschueren |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| DOI | http://doi.org/10.1177/13882627221107042 |
| Subject Matter | Articles |
The Application of the Conflict
Rules of the European Social
Security Coordination to
Telework During and After the
COVID-19 Pandemic
Herwig Verschueren
International and European Labour and Social Security Law, University of Antwerp,
Belgium
Abstract
During the COVID-19 pandemic, the normal use of European conflict rules determining the
applicable social security legislation was temporarily suspended to avoid changes in the applicable
legislation as a result of telework, which was being obliged or recommended. The purpose was to
avoid the consequences of such a change. However, these forms of remote work are expected to
remain in existence after the pandemic, even when the suspension of the conflict rules is no longer
in place. So, the question arises whether the suspension of the strict application of the conflict
rules should be prolonged after the pandemic, or whether these conflict rules should be applied
differently or even amended. First, this article discusses the measures that were taken during the
pandemic. Next, it will highlight the consequences if the temporary measures are not prolonged
after the pandemic for the determination of the applicable social security legislation. It will explore
the possible re-interpretation of or even amendments to these rules in order to adapt them to the
continuation of telework.
Keywords
conflict rules, cross-border work, EU social security coordination, free movement of workers,
telework
Corresponding author:
Herwig Verschueren, Full professorof International and European Labour and Social Security Law, University of Antwerp,
Belgium.
Email: herwig.verschueren@uantwerpen.be
Article
European Journal of Social Security
2022, Vol. 24(2) 79–94
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13882627221107042
journals.sagepub.com/home/ejs
1. Introduction
The COVID-19 pandemic has thoroughly shaken up our way of working. More specifically, the
prevalence of telework has significantly increased throughout Europe (Eurofound, 2020). This
surely applies to those employees who work across borders as well. At a certain point in time,
borders were closed; but even once the borders were re-opened, telework was mandatory or recom-
mended where possible. This meant that employees who worked across the borders of Member
States no longer performed some or any of their activities in the Member State in which their
employer was established; instead, they worked online in the Member State in which they were res-
iding, or in another Member State still. After the pandemic, telework is expected to remain part of
many employees’working patterns.
The online exercise of activities from one’s place of residence or another place can affect the
social security legislation that applies to them due to the conflict of law rules of the European
social security coordination.
1
The basic principle is the State of employment principle: an employee
is subject to the social security legislation of the state of employment.
2
However, a person who
pursues activities in more than one Member State is subject to specific rules laid down in this coord-
ination.
3
In the event of telework, the application of those rules could lead to a change in the applic-
able social security legislation, with consequences for the determination of the employee’s and
employer’s social security contributions and the social security benefits to which the employee
and their family members are entitled.
In order to prevent such a change, the application of those rules was temporarily suspended
during the pandemic. Part 2 shall briefly discuss these measures. Still, even after the pandemic,
our way of working will indubitably have experienced a permanent change. Where possible,
telework will have taken hold as a common way of working. So, the question arises: will the
rules on the determination of the applicable social security legislation in the case of cross-
border employment between two or more Member States be re-applied after the pandemic?
Part 3 shall examine the potential consequences of such a move and whether these rules
should be interpreted or applied differently, or even modified to avoid a possible change in
the applicable social security legislation because of telework. In Part 4, a brief conclusion
shall be given.
The concept of “telework”is used in this contribution. By this, we mean the performance of
work activities offsite using information technology rather than at the employer’s location of busi-
ness. I shall confine myself to telework performed by employees within the EU.
2. Suspension of the Application of Conflict of Law Rules on Social
Security During the Pandemic
Ever since the beginning of the pandemic, attention has been given to the complications that could
arise from applying conflict rules regarding social security in the context of closed borders between
Member States and mandatory or recommended telework. Indeed, strict interpretation of these con-
flict rules could lead to a change in the applicable social security legislation for cross-border
1. This social security coordination is laid down in Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009.
80 European Journal of Social Security 24(2)
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