Jeremiasz Kuśmierz
by Jeremiasz Kuśmierz
Many EU employers in creative and new tech industries give employees the convenient option to work from other EU member states. This may seem of little practical difference, but the legal consequences may be significant.
Tax-wise, the situation is clear: as long as employees retain their original tax residency, remote work does not impact employment-related taxes. A European employer must ensure employees stay in their country of permanent residence for at least 183 days per year and do not intend to change their permanent residence. As a result, from a tax perspective, all temporary remote work sessions are allowed as long as the duration of stay is kept within these limits.
Social security-wise, the situation is more complicated. Under EU regulations, employees are subject to the social insurance policies in the country where the work is undertaken. However, there are certain exceptions, in particular relating to the “posting” of workers. Employees may remain subject to the social security regulations of their country of residence if they are posted to work in another member state for up to a certain period of time. This is not the case if employees personally decide to work remotely from another member state without involving their employer. Consequently, employees are not officially “posted”.
In Poland, for example, the social security authority tends to deny employees the A1 certificate for posted workers which would certify that they remain subject to the Polish social security system despite their stay abroad. However, a different exception provided by Regulation (EC) No. 883/2004 states that during a period of remote work, employees can be expected to travel back and forth between the country of permanent residence and the member state of their temporary stay. This would be deemed performing work in two member states.
For now, decisions of the Polish Social Security Institution on cross-border remote work are inconsistent, but in principle this should improve over time to the benefit of employees since the attitude of EU bodies is that temporary cross-border, remote work should not affect insurance coverage.
GGI member firmPenterisWarsaw, PolandT: +48 22 257 83 00Law Firm Services
Penteris is a European law firm committed to keeping clients ahead of the market with a mantra of “getting things done” and “building long-term relations”.
If "Yes", I would love to hear about your experiences. You are welcome to email me.
This might also be a topic for a future GGI Employment Law Practice Group meeting. PG members who are interested in sharing your experiences, let PG Global Chair Jeffrey Kenens know.
Jeremiasz Kuśmierz is focused on new tech and believes it is the foundation of future business. His global outlook is highlighted by his participation in multinational deals involving China and Europe. His work is spread across dispute resolution, employment, compliance, and risk management matters. Contact Jeremiasz.