Anti-abuse in an international context
New provisions (sections 22 to 25 of the Belgian Act of 27 December 2012) have come into force (10 January 2013) to combat abuse in the context of applying the European Regulations on the coordination of social security for mobile employees or self-employed persons; concerned are EU Regulations 1408/71, 883/2004, 574/72 and 987/2009 and the ones extending these regulations to third-country nationals.
As you probably know these regulations designate the applicable social security scheme for salaried and self-employed persons being mobile in the European Economic Area.
Where the provisions of regulations are applied to a situation that does not fit the conditions imposed by those regulations, there is deemed to be abuse of right. The sanction is that the employee or self-employed person is retrospectively subjected to the Belgian social security scheme for employees or the self-employed. This means that a posted employee in possession of an A1 document who works in Belgium but does not comply with all the posting conditions can still be subjected to Belgian social security despite holding an A1 document. The A1 will not be taken into account by the Belgian authorities.
In the past, it has been said by the administrative commission for the coordination of social security schemes and by the courts that a quite special procedure has to be gone through to challenge the validity of an A1 document. The Court of Justice has thus decided that an E101 document (now A1) is binding on the authorities of the host state until any such time as the authorities of the home state (competent state) withdraw the document (RSZ/Herbosch Kiere NV, ECJ, C-2/05, 26 January 2006). Our own Supreme Court (Cour de Cassation/Hof van Cassatie) has also ruled that, where the host state authorities have doubts as to the accuracy of the facts on the basis of which the document has been issued, the issuing authorities have to re-examine those facts; if the authorities of the issuing state and those of the host state do not agree, the case goes before the Administrative Commission of the European Communities; ultimately, the host state authorities can start a non-compliance procedure (HvC, RSZ/Frangema Staal, 2 juni 2003, S.020039.N/2).
We will comment in the next issue on the national anti-abuse measures taken by the Government. These provisions still await a Royal Decree though.
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