W poszukiwaniu prawa właściwego dla pracy zdalnej
Searching for the Applicable Law to Remote Work

Summary/Abstract: The increasing phenomenon of remote working raises challenges for employ-ers, national legislators, as well as for private international law. The complete trans-fer of the employment relationship to the remote plane moves the centres of activityof the employer and the employee away from each other, which can be seen especiallyin employment relationships with a foreign element (e.g. employment of a permanentemployee living in another country). The question then arises — momentous from thepoint of view of the conflict of laws rules — as to the law applicable to this employmentrelationship.The answer must be made in the light of the EU provisions on the law applicable tothe individual employment contract (Article 8 of the Rome I Regulation) and the post-ing of workers (Directive 96/71/EC). Their juxtaposition may result in the need for theemployer to take into account the competing legal regimes. Indeed, under Article 8(2) ofthe Rome I Regulation, the law applicable to an individual employment contract is thelaw of the country in which the employee habitually carries out his work in performanceof the contract. Determining this state may, in an increasingly digital age, give rise tonumerous difficulties, not least despite the considerable body of case law of the CJEU.Similar doubts may arise when assessing whether the conditions for posting set out inDirective 96/71/EC are fulfilled.An analysis of the statements of representatives of the doctrine, especially foreigndoctrine, and of the jurisprudence has made it possible to establish that the currentconflict-of-law rules are not in line with the modern needs of circulation. There is alsoa discrepancy between the norms of international labour law and social security regu-lations. This leads to the conclusion that the intervention of the legislator is necessaryin order to balance the conflicting expectations of employers and employees. In this con-text, the article is both cognitive (it contains an analysis of the existing regulations) and theoretical. The analyses and conclusions presented may also prove useful for thepractice of law.

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