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European "acquittal" for Belgium: a missed opportunity

Newsflash
Mobility and immigration

On 7 October 2010, the European Court of Justice (ECJ) rendered a  judgement on the conformity of the "declaration of posting" with the freedom to provide services. This "declaration of posting" was the predecessor of the existing LIMOSA-declaration.

A foreign employer who seconds employees to Belgium is (amongst other things) exempted from drawing up "Belgian" social documents for a period of six months (now 12 months under the LIMOSA-declaration) as far as:

  • he sends a prior "declaration of posting" to the competent social inspection services (now replaced by the LIMOSA-declaration);
  • he possesses a copy of analogous foreign social documents during the employment in Belgium for the social inspection services to consult;
  • he retains this copy afterwards for a period of five years (now two years under the LIMOSA-declaration);

The ECJ considered such declaration contrary to the freedom to provide services, as far as the commencement of the posting is dependent on the notification of the registration number of the declaration to the employer within five working days as from the receipt. As this formality has expired in the meantime, the present LIMOSA-declaration seems to stand the test of the Court.

Subsequently the Court decided that the fact that a copy of analogous documents has to be held for the competent social inspection services during the first six months is not contrary to the freedom to provide services.

Sadly, the Court did not deliver a judgment on the fact that this exemption from drawing up and saving the "Belgian" social documents on condition that analogous foreign social documents are kept, only applies for a period of six months (now 12 months). After this period foreign service providers must still draw up Belgian social documents. Unlike the advocate-general who expressed a very destructive opinion on this in his conclusions, the Court only stated this was not relevant as in casu the posting lasted less than six months.

This was an opportunity missed because the question whether the Belgian time restriction with respect to the above-mentioned exemption is in conformity with EU-law (and more in particular to the freedom to provide services) remains unanswered.

H.v.J. 7 oktober 2010 (Dos Santos Palhota (C-515/08)