Čezmejno zaposlovanje: veljavna zakonodaja, socialna varnost in dovoljenja

Cross-border work raises four separate legal questions: which employment law applies, which court has jurisdiction, where social security is due and whether the employee may work in that country at all. Under Article 8 of the Rome I Regulation a choice of Dutch law cannot take away the mandatory protection of the country where the employee habitually works. Tax is a fifth question with its own treaties, on which you need a tax adviser.

Dutch law has no employment at will and no general right to work from home. It does have a preventive dismissal system, a statutory transition payment (transitievergoeding) and mandatory rules that cannot be contracted away; see our guide to Nizozemsko delovno pravo.

Which employment law applies?

Within the EU, Article 8 of the Rome I Regulation (EC) No 593/2008 decides. The parties may choose the law, but the employee keeps the protection of the mandatory rules of the law that would apply without a choice.

A Dutch law clause for an employee who works permanently from Spain therefore does not switch off Spanish dismissal protection, minimum wage or holiday rules. Without a choice, the law of the country where, or from where, the employee habitually works applies. Temporary work abroad does not change that, and an escape clause applies if the contract is more closely connected with another country.

What determines the habitual place of work?

It is a factual test, read broadly by the Court of Justice of the EU. The decisive question is where the employee actually performs the essential part of the work.

• Where most working days are actually spent.
• Where the work is organised, instructions come from and the employee reports.
• How long and how permanent the stay abroad is; there is no fixed number of days.
• Supporting factors such as the place of payment, the social security registration and the language of the contract.

For a Dutch employer this can have unexpected effects. Dutch dismissal law requires prior permission from the Employee Insurance Agency (UWV) or dissolution by the subdistrict court (kantonrechter), plus a transition payment. A foreign employer with someone habitually working from the Netherlands may become subject to that system without expecting it.

Katero sodišče odloča?

Jurisdiction is a separate question. Within the EU, Articles 20 to 23 of the Brussels Ia Regulation (EU) No 1215/2012 protect the employee: he may sue the employer in the employer’s member state or where he habitually works, while the employer may only sue the employee in the member state where the employee lives.

A jurisdiction clause in an employment contract therefore has limited value. It only works if it was agreed after the dispute arose or if it gives the employee additional options. A clause naming Amsterdam will not stop an employee working from Portugal from suing in Portugal. See our overview of čezmejna pravna vprašanja.

Is posting the same as remote working?

No. Posting means the employer sends an employee to another member state for a limited period to work there on its instructions; remote working usually means the employee chooses to do the same job from abroad.

Under the Posting of Workers Directive, as amended in 2018, the host state’s core terms apply from day one, including pay, working time and holidays. After twelve months, or eighteen after a reasoned notification, almost all host-state employment law applies, except dismissal protection and supplementary pensions.

In the Netherlands the Directive is implemented in the Terms of Employment of Posted Workers in the European Union Act (WagwEU). A foreign employer posting workers here must notify the posting in advance through the online reporting portal and keep documents available for the Netherlands Labour Authority. Under Article 7:616a of the Dutch Civil Code (BW) a client can be held jointly liable for wages the employer does not pay.

Agencies supplying workers in the Netherlands will need admission under the Act on the admission of the provision of labour (Wet toelating terbeschikkingstelling van arbeidskrachten). Under the decree of 24 June 2026 (Stb. 2026, 159) the Act enters into force on 1 January 2027, with some parts following on 1 January 2028. Review cross-border staffing arrangements against that timetable now.

Where is social security due?

Within the EU, the EEA and Switzerland, Regulation (EC) No 883/2004 applies: a person is insured in one country only, in principle where the work is done. An employee working in several member states is insured in the country of residence if he performs a substantial part of the work there, which in practice means at least 25%.

Since 1 July 2023 the framework agreement under Article 16(1) of that Regulation on cross-border telework applies between signatory states, including the Netherlands. An employee who teleworks from his country of residence for less than 50% of his working time can then remain insured in the employer’s country, but only on request.

In the Netherlands the Social Insurance Bank (Sociale Verzekeringsbank, SVB) issues the A1 certificate that proves which system applies. Apply before the work starts. Outside the EU, EEA and Switzerland, coverage depends on a bilateral social security treaty; without one, double contributions are possible.

What should you know about tax?

Tax follows its own rules and treaties, and we do not advise on it. An employer does need to know where the risks lie, so that the right question reaches a tax adviser in time.

Employment income is allocated by the applicable double taxation treaty, and the answer can differ from the social security answer. Payroll registration may be required where the work is done. An employee abroad can also create a permanent establishment for the employer, depending on what he actually does there, for example concluding contracts.

Who may work from the Netherlands?

Nationals of the EU, EEA and Switzerland may live and work in the Netherlands without a permit. Under the Foreign Nationals (Employment) Act (Wet arbeid vreemdelingen) an employer may not let a third-country national work without a work permit, unless an exemption applies.

Depending on the situation this is a single permit for residence and work, a work permit (TWV) from the UWV, or a residence permit as a highly skilled migrant applied for by a recognised sponsor through the Immigration and Naturalisation Service (IND). The salary thresholds for highly skilled migrants change every year; check the current figures on ind.nl. A tourist stay or visa-free stay gives no right to work.

The reverse also applies. If an employee moves to a country outside the EU, check whether that country requires a work authorisation for remote work for a foreign employer before the move.

Ali obstaja pravica do dela od doma na Nizozemskem?

No. The Working Where You Want Act (Wet werken waar je wilt) was rejected by the Senate (Eerste Kamer) on 26 September 2023, and the Flexible Working Act (Wet flexibel werken) still applies.

Under Article 2 of that Act an employee with at least 26 weeks of service may ask in writing, at least two months in advance, to change working hours, working times or place of work. The employer must grant requests about hours and times unless serious business interests prevail, but for the place of work it only has to consider the request and discuss it if it refuses.

If the employer does not decide at least one month before the intended start date, the request is granted as made (Article 2(12)). An employer that has allowed an arrangement for years may also be bound by the duty to act as a good employer under Article 7:611 BW. Disputes about attendance are handled like other employment disputes; see our article on reševanje sporov na delovnem mestu v hibridni delovni sili.

Because there is no right to work from abroad, an employer may require prior written permission for a named country and a defined period. That clause is the most effective way to prevent the applicable law, social security and tax position from changing unnoticed.

Which data and safety duties travel with the employee?

The employer remains the controller of the data the employee takes along. Remote access from a country outside the European Economic Area counts as a transfer under Chapter V of the General Data Protection Regulation and needs an adequacy decision or standard contractual clauses.

A data breach must be reported to the Dutch Data Protection Authority without undue delay and where feasible within 72 hours (Article 33 GDPR). Since 15 August 2026 the Dutch Cybersecurity Act (Cyberbeveiligingswet), implementing NIS2, adds separate incident reporting duties for essential and important entities. See our overview of the Splošna uredba o varstvu podatkov.

The Working Conditions Act (Arbowet) requires a risk assessment that covers the way employees actually work, including at home. Monitoring software requires a documented legitimate interest and prior information to employees, and under Article 27(1)(l) of the Works Councils Act (WOR) the works council must consent to systems for monitoring attendance, conduct or performance.

Kaj morate kot delodajalec preveriti?

• Has the employee obtained written permission for a named country and period?
• Which country’s mandatory employment law applies under Article 8 Rome I?
• Has the A1 certificate been requested from the SVB before departure?
• Has a tax adviser checked payroll and permanent establishment risks?
• Does the employee have the right to work in the destination country?
• Is remote access to personal data covered by an adequacy decision or standard contractual clauses?

Kaj morate kot zaposleni preveriti?

• Does your contract or written permission allow you to work from abroad?
• Have you submitted any request under the Flexible Working Act in writing, two months in advance?
• Which country’s social security covers you, and do you have an A1 certificate?
• Where will you be taxed, and have you checked this with a tax adviser?
• Do you have a residence and work permit for the country you work from?

What can we do for you with cross-border employment?

As pravnik za delo we advise employers and employees on work across borders.

• We determine the applicable law and the competent court for your situation.
• We draft a remote working policy and permission clauses for work abroad.
• We arrange the WagwEU posting notification and advise on chain liability.
• We prepare A1 applications and check social security coverage.
• We apply for work permits and highly skilled migrant residence permits with the UWV and IND.
• We handle the employment-law consequences if an arrangement must end.

Povzetek

• A choice of Dutch law cannot remove the mandatory protection of the country where the employee habitually works (Article 8 Rome I).
• An employee can always be sued in his country of residence; jurisdiction clauses have limited effect.
• Social security follows Regulation 883/2004; telework under 50% can stay in the employer’s state under the framework agreement.
• There is no right to work from home or abroad in the Netherlands; the Flexible Working Act only requires the employer to consider a request about the place of work.
• Check immigration and tax before the work starts, not after.

Pogosta vprašanja