The Programme Law of 27 December 2006 obliges assigning employers (for their assigned employees) and assigned self-employed workers to make a prior notification in respect of their partial or temporary activity in Belgium.
In our newsflash of 14 January 2013 we already mentioned that this Belgian notification requirement had been scrutinised by the European Court of Justice (hereafter referred to as the ECJ) and was considered to be incompatible with EU law. The Belgian government had failed to prove that the information requested upon notification was necessary to fulfil Limosa’s underlying aims of combating fraud and preventing abuse.
The government has now adapted the Limosa notification system for both assigned employees and assigned self-employed workers through the Royal Decree of 19 March 2013. The new rules will enter into force on 1 July 2013.
New rules as of July 2013
Information requested upon prior notification
The modification reduces the amount of information that must be provided upon notification on http://www.limosa.be and justifies why the requested information should be communicated.
For assigned employees, their national identification number from the country of origin, the types of services provided in the framework of the assignment and the weekly working hours should no longer be provided by their employer.
Assigned self-employed workers no longer need to provide: their national identification number from the country of origin, the types of services provided in the framework of the assignment, the VAT or company number from the country of origin and the identification information of the mandatary making the declaration.
The retained information requirements, for both employees and self-employed workers, mainly relate to the identification of the concerned persons, the assignment period and the location of the activities.
Simplified notification and single notification for 12 months
Given the reduction of information requirements in the notification, the simplified Limosa notification has been abolished.
However, it remains possible to file a single notification valid for a maximum of 12 months (each time extendable by 12 months) for assigned employees and assigned self-employed workers regularly performing activities on Belgian territory and in one or more other countries.
Cancellation of a notified assignment
Previously, cancellation of a notified assignment had to be filed before this assignment period’s starting date . With the new rules, a specified cancellation date is no longer indicated in order to ensure the accuracy of the Belgian social security authorities’ databases.
Impact
Since the Belgian Government has not completely abolished the Limosa legislation but has merely adapted it to stretch the rules in light of EU requirements, assigning employers and assigned self-employed workers are still obliged to electronically notify assignments and provide the requested data. Failure to do so can lead to criminal and/or administrative sanctions.
Please note that the Belgian contractor/client is also obliged to verify whether the subcontractor has fulfilled Limosa obligations. Non-compliance with this co-responsibility may also lead to criminal and/or administrative sanctions.
Although this legislation has been adapted in reaction to European case law, it remains to be seen whether these changes will ultimately meet EU law requirements. Especially the retained requirement to provide the work schedule of assigned employees still seems to go beyond the needs of a “mere notification”, as described by the ECJ. Although providing the work schedule through Limosa leads to the exemption from the obligation to draw up “work regulations”, this does not necessarily mean that this information requirement is proportionate. Even if it leads to said exemption, it does not seem to belong to Limosa legislation, which is supposed to install a mere notification system rather than a control instrument.
