The Court of Justice: Belgian Anti-abuse Act a step too far

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Date:
20 Aug 2018

The Court of Justice has ruled that Belgium - by giving the judge, the NSSO and the social inspectorate the possibility to put a fraudulently acquired A1 declaration aside in the event they consider there is abuse - violates European rules.

In the context of the fight against fraud in the area of posting workers abroad, the Belgian legislator has given the courts, the public social security institutions (in particular the NSSO) and the social inspectorate - via the Programme Law of 27 December 2012 - the possibility to unilaterally subject an employee or self-employed person to the Belgian social security legislation in the event of abuse. This is the case even if another European Member State had already issued an A1 declaration for the person concerned and had therefore confirmed that this person was subject to its social security regime.

The Belgian Law made this unilateral submission possible even without the other European Member State being contacted or agreeing with it. The autorithy concerned (e.g. the NSSO or the social inspectorate) merely had to prove that the provisions of the coordination regulations were being violated with the aim of evading the Belgian social security legislation.

However since the law entered into force, it has given rise to strong criticsm because of the fact it is in manifest conflict with the European coordination regulations.

In its judgement of 11 July 2018 the Court sets (1) clear limits, and (2) the relevant provisions of the Anti-abuse Act aside. The court ruled that national regulations which make it possible to undermine the binding force of an A1 declaration by unilaterally subjecting - outside the framework of legal proceedings and without respecting the European dispute procedure - an employee or self-employed person to the Belgian social security legislation, is not compatible with the principle of sincere cooperation between Member States.

Only within the limits as set forth in the Altun judgement (see previous Newsflash ) may the Belgian court unilaterally set aside the A1 declaration.

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The Belgian authorities (i.e. the judge, the NSSO, the social inspectorate) can not simply (1) set a fraudulently acquired A1 declaration aside and (2) subject the posted employee to the Belgian social security legislation. Fraudulently acquired A1 declarations can only be ignored under the conditions set forward in the Altun judgement (see previous Newsflash ).