Advocaten / Avocats / Lawyers

Thursday, 29 March 2018

New position of the Belgian social security authorities on determining the applicable social security regime (EU REGULATION 883/2004)

Belgium now applies the principle of “requalification”.

In the context of international employment situations, the EU Regulation 883/2004 determines which social security legislation is applicable to people working simultaneously in two or more states within the European Economic Area and Switzerland.

According to this Regulation, a person can only be subject to the legislation of one state at a time for all his activities. A set of rules indeed results in pointing out one competent state. However, in order to be able to determine the competent state and to apply these rules, one has to be aware of the domestic qualification of an activity exercised in a certain state.

This means that the internal qualification of an activity by the work state(s) is crucial for the analysis to be made under the Regulation. Please note that this often leads to a complex analysis if one is working in different states.

Once the competent state is determined, that state should in principle again qualify the activities according to its own legislation (=so called “requalification”). This simply means that the competent state does nothing with the different qualifications possibly given by the work states, but that solely the domestic qualification of the competent state is applied.

Although this principle is internationally broadly applied, Belgium did not apply it until now. The system of “non-requalification” was applied (they thus accepted the work state’s qualification).

This led to strange situations where - when Belgium is the competent state - one could be affiliated to Belgian social security for employees for part of one’s income and to the Belgian regime for self-employed for the other part.

On December 21st, 2017, the Belgian social security authorities have aligned their position to “requalification”. This means that Belgium will apply its own legislation to determine which type of social security contributions are due in Belgium. A newsletter will be issued by the authorities on the issue.

This new position is of major importance for company directors. In Belgium a company director (corporate mandate) is a self-employed person, whereas in other states, this function can be subject to the social security regime for employees. Whereas Belgium (when competent) used to accept the foreign qualification as employee when determining the Belgian social security contributions due, a company director will now – by reason of the “requalification” - be subject to the social security regime for self-employed persons.

For those directors having contributed in the past both in the Belgian social security regime for employees and for self-employed: it is advisable (and possibly beneficial) having your case analyzed to check if a regularization for the last three years is possible.

For more information on the qualification of a director’s mandate (in a local or foreign company) in view of application of EU Regulation 883/2004 – please click here. You will be able to consult our contribution to the WSG booklet (2016) on the subject, including summaries on the issue of (re)-qualification from 19 countries.

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