To Limosa or not to Limosa?
The European Court of Justice ruled on 19 December 2012 that the obligation on self-employed service providers not established in Belgium to submit a notification before carrying out any services in Belgium is contrary to the freedom to provide services (art. 56 TFEU). General press coverage of the ruling has suggested that the LIMOSA regulation for self-employed workers no longer needs to be applied because of its incompatibility with European law.
The statutory landscape – self employed service providers
The ECJ has ruled on the so-called “Limosa” obligation on self-employed persons, as laid down in section 153 of the Programme Act of 27 December 2006 and now carrying criminal penalties with reference to section 182(2) of the Employment Criminal Code.
However, the ECJ has not ruled on the Limosa obligation for firms that come to Belgium with their employees in order to perform services on the Belgian territory.
The Court is of the view that the notification obligation and the related formalities constitute a hindrance to the free provision of services. The generalised notification requirement makes it more difficult for self-employed service providers established in other member states to provide their services, says the Court.
However, the Court does recognise that the objectives of the checks and the related notification duty that Belgium imposes can justify a limitation on the free provision of services.
Nonetheless, the Court does state that the present notification requirement is excessively general and seems to indicate that it would still be conceivable to amend the Limosa legislation. Therefore, parliament will need to redo its homework and limit the notification obligation to a number of activities/sectors/… where it is needed in order that the necessary checks can be done and abuse dealt with; they will also have to make the list of information more efficient by only requesting details that allow inspectors to uncover improper practices.
We remain of the view that it is best to make a Limosa notification until further notice (change of legislation), whether as a self-employed person or as an employer coming with its employees to Belgium to provide services. That said, the legislation will need some amending for the self-employed and (probably) for employers submitting notifications on behalf of their employees as the principles of both legislations are the same.