The responsibility contribution in the event of an employer's excessive use of economic unemployment does not affect the principle of non-retroactivity of legislation

A special social security contribution is due by employers who make excessive use of the economic unemployment system. A company developed arguments before the Constitutional Court challenging the legality of this contribution. However, the Constitutional Court considered that the constitutional principles of non-retroactivity of legislation and of legal certainty were complied with.

Employers facing a temporary lack of work may use a mechanism to suspend the performance of the employment contract and temporarily exempt employees from performances. This is also known as unemployment for economic reasons. In this case, the employees concerned are temporarily exempt from performances and receive allowances from the NEO.

Private sector employers who exceed a certain number of days of economic unemployment must pay a responsibility contribution. This measure only concerns the economic unemployment of blue-collar workers.

The contribution is due if the number of days of economic unemployment declared exceeds 110 days over a reference period of 4 quarters, which include the current quarter and the 3 previous quarters. In this case, the contribution is determined at a flat rate and progressively depending on the number of days of unemployment during the reference period. The contribution is then multiplied by the number of unemployment days in the current quarter. The employer must make this calculation for each quarter in which he has used the economic unemployment system.

For employers in the construction industry, the calculation method of the contribution differs. The amount of the contribution is determined at a flat rate but not progressively, based on the number of days of economic unemployment that exceeded 110 days in the last calendar year. Hence, the calculation is not made quarterly in the construction industry.

In its judgment of 14 October 2021, the Constitutional Court ruled on the compatibility of this responsibility contribution with the constitutional principles of non-retroactivity of legislation and of legal certainty. This contribution was formerly intended for the construction sector but was extended to all sectors by the Act of 28 December 2011. Nevertheless, the application modalities were only established by the Act of 30 July 2013.

First of all, the Court rules on the qualification of the responsibility contribution. It considers that the contribution is not a tax and, consequently, the constitutional provisions regarding taxation do not apply.

Secondly, the Court concludes that the contribution does not violate the principles of non-retroactivity of legislation and of legal certainty, despite the fact that several parameters of the contribution were established only after the employers concerned resorted to economic unemployment.

Finally, the Court considers that the contribution does not disproportionately affect the employers’ property rights and that the differences in treatment between employers covered by the general scheme and those covered by the construction industry are reasonably justified.

Action point

The responsibility contribution respects the constitutional principles of non-retroactivity of legislation and of legal certainty. For each quarter in which employees are unemployed due to economic reasons, the employer must verify whether the contribution is due and indicate the amount in the DmfA for the current quarter. In the construction sector, it is the NSSO which calculates the amount of the contribution.