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BELGIUM: Renewed Focus on Compliance Issues

There is a renewed focus on compliance issues.

There has been an increasing focus on compliance issues in Belgium, such as in the field of cross-border employment. For example, the Belgian government has begun an initiative against fraud and abuse regarding social security in the context of international mobility.

European regulations have set rules to determine what legislation applies in a particular situation. For example, an employee who is posted by his German employer to Belgium will, under certain conditions, remain subject to German social security; he will receive an "A-1" document from the German social security authorities as proof.

At present, as confirmed by European case law, European Union Member States' courts must accept an A-1 document, even if it is subject to discussion. Only the Member State that has issued the document can withdraw it. For instance, if there were discussion about the real nature of the posting of the German employee to Belgium, a Belgian court must still accept the German A-1 document as long as it has not been withdrawn.

A new rule effective January 10, 2013, entitles Belgian courts to set aside the European coordination rules in the event of "abuse," which is defined as the incorrect application of the European coordination rules to try to avoid being subject to Belgian social security. The Belgian courts could, in the event of such abuse, decide that Belgian social security applies anyway. For example, if the Belgian court believes that there has been fraud or abuse of the European coordination rules and that the German employee is not posted to Belgium but in fact works under the authority of the Belgian third party, it can set aside the German A-1 document.

This new rule is controversial, especially in light of European law.

 

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