BAKGRUNN (fra beslutningen)

(1) Member States were affected by the consequences of the COVID-19 outbreak crisis in an unexpected way. Many of them adopted social distancing measures, including confinement measures with the consequence of an increase in telework (home-office) activities, with the aim to contain the spread of the COVID-19 pandemic and to safeguard public health.

(2) The crisis put an additional strain on the resources of competent institutions. It also significantly affected usual work procedures in the relevant institutions in the Member States and created an exceptional situation where the normal operation of procedures, including reimbursement procedures, was not possible.

(3) The increase in telework activities was likely to be a source of concern for workers who resided in one Member State and worked exclusively in another one, and for workers who carried out an activity in two or more Member States. Therefore, it was necessary to determine how the provisions of the Regulations on social security coordination would apply, under these exceptional circumstances.

(4) The circumstances were such so as to render the case-law of the European Court of Justice relevant, according to which force majeure can be invoked if a non-compliance with legal obligations is attributable to circumstances beyond one’s control, which are abnormal and unforeseeable and the consequences of which could not have been avoided despite the exercise of all due diligence (cf. the judgment of the Court of Justice of 13 July 1995, C-391/93, Perrotta, EU:C:1995:240).

(5) Hence, on 17 June 2020, the members of the Administrative Commission endorsed the Guidance note on COVID-19 pandemic, supplemented by the note on the interpretation of the application of Title II of Regulation (EC) No 883/2004 and Articles 67 and 70 of Regulation (EC) No 987/2009 during the COVID-19 pandemic (2). The respective note sets out that changes in the aspects taken into account in determination of the applicable legislation caused by the COVID-19 pandemic should not affect the determination.

(6) At the time of the agreement on the Guidance note COVID-19 pandemic, the Administrative Commission decided not to publish these guidelines in the Official Journal in order to remain flexible and extend the deadlines in view of the difficult context encountered during the pandemic.

(7) The Guidance note on COVID-19 pandemic included guidance on the legislation applicable to telework, recommending that telework in a Member State other than the competent (‘usual’) Member State of employment, due to COVID-19, should not lead to a change of applicable legislation. That Guidance was at first applicable until 31 December 2020 (3), but its application was subsequently extended by the members of the Administrative Commission for continued reasons of force majeure, first until 30 June 2021 (4) and then until 31 December 2021 (5). A revised version of the Guidance note on COVID-19 pandemic was relevant as of 25 November 2021 until the end of the latest extension set to 30 June 2022 (6). In this revised version a few deletions in the text were made, which are listed at the end of the Guidance note on COVID-19 pandemic in Annex I.

(8) As said above, during the pandemic, telework increased considerably enabling categories of professions and businesses to pursue their activity and remained, to a certain extent, a way of working. Nevertheless, the Administrative Commission agreed that as of 1 July 2022 the force majeure was no longer present. It was, however, necessary to assess how the current legal framework should be interpreted and if it was fit for the purpose of an increased amount of telework or hybrid work (meaning a combination between work in the premises of the employer and telework), in normal working circumstances not linked to the pandemic. Therefore, the Administrative Commission adopted in June 2022 a Guidance note on telework (7). Its purpose was to interpret the existing legal framework for the special situation of telework, which might necessitate a rather flexible approach to meet the general aims of Title II of Regulation (EC) No 883/2004.

(9) As this interpretation of the existing legal framework could lead to results others than those under the Guidance note on Covid-19 pandemic previously agreed in view of the then reigning exceptional circumstances, it was decided that a transition period could be advisable, during which there would still be no change in the applicable legislation. This transition period, which was first set to run until 31 December 2022 and was then extended until 30 June 2023 (8), was necessary to avoid hardship for the persons and enterprises concerned in the context of the freedom of movement of workers.

(10) During the transition period some diverging views appeared with regard to its interpretation. Following the discussions during the meetings of the Administrative Commission, the interpretation should be that the transition period covered both cases which started already before 1 July 2022 as well as those which started after this date, for the period until 30 June 2023.

(11) At the same time, the Administrative Commission set up during the transition period an Ad-hoc group to examine the subject of telework and discuss further, among others, the interpretation of Articles 12, 13 and 16 of Regulation (EC) No 883/2004. Based on the report of the Ad-hoc group on telework from March 2023, the Administrative Commission decided that a modification of the text of the Guidance note on telework was necessary for the future. Therefore, a new Guidance note on telework applicable from 1 July 2023 (9) was adopted by the Administrative Commission in June 2023. It reflects the outcome of the works of the Ad-hoc group and also provides for appropriate clarification of the transition period between 1 July 2022 and 30 June 2023 under the previous guidance.

(12) Citizens and employers do not have access to the internal documents of the Administrative Commission and can only refer to the information on the websites of the competent institutions, which could result in the information being removed at one stage.

(13) In order to facilitate uniform application of Union law, to ensure the principle of transparency and availability of information towards citizens and to create legal certainty in case there would be a conflict on the question of the applicable legislation as understood in view of the then reigning exceptional circumstances as well as to ensure that the documents are traceable in the future, it appears necessary to adopt this decision.

(14) Thus, it decides to publish the Guidance note on COVID-19 pandemic (AC 074/20REV3) as well as the note on the interpretation of the application of Title II of Regulation (EC) No 883/2004 and Articles 67 and 70 of Regulation (EC) No 987/2009 during the COVID-19 pandemic (AC 075/20), which also provides the appropriate interpretation of the Guidance note on COVID-19 pandemic concerning its application in time, and also the Guidance note on telework applicable for the period between 1 July 2022 and 30 June 2023 (AC 125/22REV3) as well as the Guidance note on telework applicable from 1 July 2023 (AC 137/23),