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We are proud to present you the first issue of our ad hoc "HR Law Focus" newsletter.
In the case C-137/11 (Partena VZW/Les tartes de Chaumont-Gistoux SA), the ECJ decided that the irrefutable presumption in the Belgian legislation, of being subject to the Belgian legislation on social security for the self-employed when executing a mandate as a director (the activity) abroad in a company that is established in Belgium, is contrary to the principles of freedom of movement and of residence.
Prejudicial question
The Labour Court in Brussels wanted to know whether the management from abroad of a company in a Member State can be treated the same as the exercise of such activity within that Member State, despite the powers of every Member State to define the conditions for coverage by its social security scheme. In other words, can an activity (in this case, the position of a director) that is exercised abroad still be regarded as having been exercised in Belgium without it being possible to evidence the contrary?
The Court
After having examined its competence and the admissibility of the question, the Court stated that the place where the occupational work is performed is decisive in determining which social security legislation applies. This precedes the Member States’ qualification of the work as salaried work (employee) or work other than salaried (as self-employed).
The concept “place of execution” of the occupational work is not determined by the internal legislation of each Member State, but rather by European Union law. This is the place where the person concerned actually performs the actions connected with such work.
However, by making the presumption irrefutable, the Belgian legislation breaches the principle of freedom of movement.
Practical consequence
Based on this decision, a director of a company that has its registered office in Belgium can show that he or she does not execute this activity within Belgian territory. Consequently, where appropriate, he or she shall not be subject to the Belgian social security legislation for self-employed persons. Mind however: this judgment only applies to the facts of the case at hand. The facts of another case have to be identical to be able to invoke the principles of the decision. The legislator has to intervene.
This Court decision also applies to third-country nationals when they fall within the scope of application of the EU Regulation (1408/71 or 883/2004 – the principles of Annex VII are not taken over by the latter). As such an Australian national being appointed as a director of a
Belgian company would not be able to invoke this decision. If that latter Australian national would however also be residing on the French territory, the Court's decision would be applicable on his mandate exercised in a Belgian company.
It is therefore advisable to revaluate current situations in the light of this Court decision.
For more information, please contact us.
Upcoming Seminars
- 31/10/2012: ERA – a new Legal form for European philanthropy – the employment aspects of the proposal for a European Foundation statute
- 08/11/2012: Fieldfisher : international round table: privacy on the workfloor in an international context
- 27/11/2012: Fieldfisher and Groupe BPI: HR for the Board: Update on the legal status and how to evaluate/assess the functioning of the Executive (Board) committee: during this session we will analyse the latest HR legal developments impacting directors and other related mandates within a company as well as elaborate on the new trends in Executive (Board) committee assessment: how to evaluate a board/executive member and the working of the committee.
- 28/11/2012: M&D seminars: internationale tewerkstelling: arbeidsrechtelijke aspecten
- 04/12/2012: Fieldfisher&Amcham: Speakers will include guest Paul Windey (President National Works Council) and Fieldfisher's employment team on the follow up on the Di Rupo I measures, the Interprofessional Agreement (TPA/AIP) 2013-2014 and other HR law legal developments.
- 13/12/2012: M&D seminars: juridische valkuilen bij recrutering
Recent Publications
Recent doctrine contributions include:
- Employment of illegal aliens tightened up;
- Secondment to Belgium: joint and several liability for wages;
- Ill while on holiday: can employees take their holidays later?;
- Belgian social security for non-EU nationals: the effects of section 3 tempered!
Recent Press Coverage
- Arbeiders en bedienden gelijk, maar wie wint en wie verliest alleen? interview with Stefan Nerinckx (HR Square, 2012/09, #122, p. 12-14)
- 15/09/2012 : Valkuilen bij het recruteren : interview with Stefan Nerinckx (Jobat, p.6-7)
- 30/06/2012 : Vijf voor Twaalf voor eenheidsstatuut (actua : arbeiders en bedienden) quotes Stefan Nerinckx (Jobat, p.8)