> Return address PO Box 90801 2509 LV The Hague

Mr Nicolas Schmit
Commissioner for Jobs and Social Rights
European Commission
Rue de la Loi 200
B-1049 Brussels
Belgium

Date
Subject

Telework and frontier workers

PO Box 90801
2509 LV The Hague
The Netherlands
Parnassusplein 5
T +31 (0)70 333 44 44
www.rijksoverheid.nl

Our reference
2022-0000135803

Dear Commissioner Schmit,
The COVID-19 pandemic disrupted the working patterns of many frontier workers.
Due to measures taken by national authorities, these workers had to telework
from their member state of residence, which was not the same as their normal
member state of employment.
In early 2020, the Commission published guidelines concerning the exercise of the
free movement of workers during the COVID-19 pandemic, which proposed that
member states should make use of the exception provided for in Article 16 of
Regulation (EC) No 883/2004 in order to maintain the social security coverage
unchanged for the workers concerned. On 15 May 2020 Administrative
Commission notes 074/20 and 075/20 set out further guidance, providing
direction and support for national measures adopted on the basis of an
interpretation of the Regulation (EC) No 883/2004 and the notion of force
majeure. The further guidance has been extended several times and is now due to
expire on 1 July 2022.
National measures, such as the obligation or recommendation to work from home
due to the COVID-19 pandemic, have been withdrawn by all or almost all member
states. However we expect that teleworking is likely to remain common practice
and we encourage both employees and employers to take advantage of the
possibilities of hybrid working. In many member states people are being
encouraged to work from home on a longer-term basis, at least for part of their
hours, since this can improve work-life balance, cut costs (energy, travel, office
space etc.) and reduce carbon emissions. Moreover member states might have to
reimplement national measures due to a resurgence of the Covid-19 virus this
autumn or winter. However, under the current legal framework, making increased
use of the opportunity to telework will often lead to a change in the legislation
applicable to frontier workers: it will no longer be the legislation of the country of
work, but instead that of the country of residence.
I have received many letters from representatives of both employers and
employees about the effects of a change in the applicable social security
legislation. They fear this might increase their administrative burden. Some
employers are already excluding or considering excluding employees from their
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general teleworking policies due to the perceived administrative and financial
risks. I feel that this would be a regrettable development. Furthermore, regions
with a large proportion of frontier workers are afraid that employers will become
less willing to employ frontier workers, when these frontier workers face a shift of
the applicable legislation to the state of residence due to teleworking. These
regions fear that they will become less attractive to businesses and workers, while
their regional economies are largely reliant on frontier workers. Whether the
change in applicable legislation is beneficial or detrimental to employers and
frontier workers will depend on the social security systems concerned. However, I
generally feel that we should not allow it to become more cumbersome for
employers to hire individuals who live on the other side of the border owing to the
greater administrative and financial risks involved in potentially having to insure
them in their member state of residence. The letters and job descriptions which
we have seen (allowing people to work from home for only a limited amount of
time) indicate that this could become a significant obstacle to the free movement
of workers and therefore to the functioning of the Single Market.

Date
20-05-2022
Our reference
2022-0000135803

Therefore the Netherlands firmly believes that there is a need to discuss how the
new reality of increased teleworking for frontier workers should be accommodated
within the framework of Regulations 883/2004 and 987/2009. Within the
Administrative Commission, the French delegation has proposed creating a
working group of experts to discuss this topic. We believe that creating such a
working group is the best way forward for discussing long-term solutions. In
addition we appreciate and welcome the work that the Commission is doing on
this issue in cooperation with the Portuguese, Austrian and French delegations.
However, the scheduled expiry date of the guidance is drawing near and work has
not yet started on a long-term solution. In our view, a temporary solution is now
urgently needed in order to avoid a situation in which people are unnecessarily
confronted with changing legislation twice.
We would therefore ask you to take the foregoing considerations into account
when deciding on the need for temporary solutions from 1 July onwards to
facilitate teleworking opportunities for frontier workers. My experts are at your
disposal to discuss the form that such a temporary solution for this time sensitive
issue could take.

Yours sincerely,

C.E.G. van Gennip
Minister of Social Affairs and Employment

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