- 27 Jun 2014
On 6 June 2014, the Belgian Official Gazette published an Act allowing the reversal of the presumption that the exercise of a mandate in a company or even an association results in an obligation to subject the individual concerned to the social security regime for independent workers. A Royal Decree specifies how.
Prior to the new Act the exercise of a mandate in a company or an association resulted in the presumption that the representative was subject to the social security regime for independent workers and obliged to pay the relevant social security contributions.
The "old" legislation prevented anyone escaping being submitted to the regime in question even if the mandate was unpaid. In a judgement of 3 November 2004, the Constitutional Court decided that this aspect of the regulation was contrary to the Constitution
Following this judgement, it was in practice accepted to reverse the presumption. The new Act confirms this practice and provides a legal basis for it: proof of the unpaid mandate may be provided and, in principle, permits escaping from the submission to the independent workers' regime.
A Royal Decree of 27 May 2014 requires the following to prove the unpaid mandate: a statutory provision, in any case if it imposes without exception the unpaid mandate, or a decision of the body competent to determine the compensation (general assembly and/or Board of Directors, according to the mandate) stating that the mandate is unpaid.
The Royal Decree has a certain retroactive effect: the statutory provision or the relevant decision can have effect until the 12th month preceding either (a) the month of its publication in the annexes to the Belgian Official Gazette, or (b) the month of communication to the social insurance fund or INASTI.
However, the proof of the unpaid mandate will not be established if in reality the mandate generates income qualified as remuneration of a manager for tax purposes, or if the company or the association contributes to the establishment of a supplementary pension for the manager.
The Act entered into force on 6 June 2014. The Royal Decree will enter into force on 1 July 2014.
> Action point
Check your statutory provisions - when the mandate is unpaid, specify this in the act of nomination and also in the publication in the Belgian Official Gazette.