Update on Belgian guidelines on the application of the European Social Security Regulations for cross border workers

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Executive summary

EU regulation 883/2004 sets out the rules to determine which social security scheme should apply to an employee who normally has cross border moves in two or more EU countries.

A person will not be classed as a multiple cross border worker if the time spent working in other EU countries is “marginal”. The Belgian authorities have reconsidered their previous position that the 5% marginal working time criterion should be assessed on the working time in the EU (outside of Belgium) as a whole and issued new guidelines that marginal activities should now be assessed on a country by country basis.

Background

Since the entry into force of the European Social Security Regulation No. 883/2004 on 1 May 2010 and subsequent amendments by the Regulation 465/2012, grey areas remain. This is particularly so as to when an employee can be classed as normally pursuing an activity in two or more EU countries.

Form A1 may be challenged if the assignee is in fact a multi-state worker. In July 2012 the Belgian social security authorities issued further guidelines in this respect, in addition to the European Commission’s “Practical Guide”.

New Belgian guidelines

The Belgian authorities have reconsidered their previous position that the 5% working time criterion should be assessed on the European working time as a whole and have now adopted a country by country approach.

The new guidelines state that an employee is considered to be normally employed in two or more EU countries only if they work 5% or more of their working time in any one country other than their country of residence. The secondment will not be challenged if an employee’s total working time outside Belgium hits or exceeds the 5% threshold, as long as his working time in each EU Member State stays below 5%. For the average employee, 5% of time would represent somewhere between 11 and 12 days.

As recommended by the European Commission’s “Practical Guide”, the Belgian social security authorities stress that the 5% working time criterion is merely an indicator (although very important in practice). Next to the working time, the nature of the activities can also be an indicator that they concern marginal activities. In particular, activities outside Belgium that lack independence (such as business trips) or that are in the service of the (Belgian) main activity can be considered “marginal”.

The Belgian social security authorities reserve the right to make a case by case assessment. Hence, intensive business travelling in several European countries over a longer period of time may still be scrutinized by the authorities, even if the working time per country is lower than 5% of the overall European working time.

The Belgian authorities’ new position applies also to the Social Security Regulations No. 883/2004 and No. 987/2009 as amended by the Regulation 465/2012.

Next steps

Although the issue relates to the Belgian interpretation of Article 13, clients should review the impact of regular multi-state activities where an employee has been posted to work in Belgium and remaining subject to their home country social security schemes.