In a judgment of 29 June 2026, the Court of Cassation (again) ruled in a dispute revolving around the question of whether Belgian social security contributions are due on restricted stock units (RSUs) awarded by the US parent company to the employees of the Belgian subsidiary. Whether or not these types of benefits – granted by a third party instead of by the Belgian employer – constitute salary on which social security contributions are due has been a contentious matter in recent years.
The most recent Court of Cassation judgment adds a new piece to the puzzle. More specifically, it defines a broad reading of what counts as the consideration/counterpart for the work agreed between employer and employee. This arguably leaves little room for companies to claim that benefits a foreign parent entity grants directly to the employees of the Belgian subsidiary fall outside the notion of salary and therefore escape social security contributions.
Intro: salary for the calculation of social security contributions
Belgian social security contributions are levied on an employee's 'salary'. This notion firstly encompasses the labour law definition of salary, namely benefits that are granted in consideration for the work agreed between employer and employee. In addition, where a benefit isn't the consideration for work, it'll still constitute salary on which social security contributions are due if (i) it's in cash or measurable in cash, (ii) the employee is entitled to it as a result of the employment, and (iii) it's borne by the employer.
Disputes on whether a benefit that's granted by a third party classifies as salary often revolve around the condition of 'borne by the employer', which has been the subject of extensive debate in recent years. This also held true the first time the present dispute was brought before the Court of Cassation in 2022 (also see below, as well as our newsletter on this 2022 judgment). However, the current, second Cassation instance instead concerns the interpretation of what's considered as the consideration for work. If a benefit is classified as such, it constitutes salary on which contributions are due, irrespective of whether the benefit is granted by the employer itself or by a third party. It's important to point out that it then becomes irrelevant to examine separately whether the benefit is borne by the employer.
The facts and the road to Cassation
Under a group-level incentive plan, several employees of two Belgian group companies received RSUs from the US parent company. After consulting the local subsidiaries for information and recommendations, the parent company decided in its sole discretion which employees qualified and reserved the right to amend the grant conditions unilaterally. The parent company bore the cost of the RSUs itself, with the Belgian companies neither a party to nor an intermediary in the grant and intended the RSUs to bind employees to the group over the longer term. Following social security inspections, the National Social Security Office (NSSO) claimed social security contributions on those RSUs.
The Ghent Labour Tribunal and, on appeal, the Ghent Labour Court held that the RSUs were salary subject to social security contributions, but the Court of Cassation quashed this on 5 September 2022. On referral, the Antwerp Labour Court ruled for the employer on 20 November 2023, holding the RSUs weren't consideration for work: the US parent company allocated and paid them on its own decision, rooted not in the employment agreement but in its intention to let employees share in the group's capital and thereby bind them long term. The grant therefore rested on a separate cause, distinct from consideration for work. We discussed this ruling in a previous newsletter on this case.
The Court of Cassation's judgment of 29 June 2026
The NSSO brought a further cassation appeal, arguing that the Antwerp Labour Court hadn't legally justified its finding that the RSUs were not granted in consideration for the work performed.
The Court of Cassation followed that reasoning and, by judgment of 29 June 2026, overturned the Antwerp Labour Court's ruling. Crucially, it held that benefits granted with a view to binding employees to the undertaking, to encouraging their continued commitment or to promoting the faithful performance of their duties are granted as consideration for work and therefore constitute salary.
On that basis, the Court of Cassation found that the Antwerp Labour Court – which held that the RSUs granted by the parent company to bind employees long term, after a selection process in which the subsidiaries suggested names supplemented with grounds and motives for their recommendation, weren't the consideration for work performed under the Belgian employment agreement – hadn't legally justified their decision.
The case has been sent to the Brussels Labour Court.
Conclusion: where are we now?
The Court of Cassation's interpretation of what constitutes the consideration for work seems to leave little practical room for the separate-cause reasoning held by the Antwerp Labour Court, particularly for benefits granted by a parent company.
As noted, once a benefit is granted in consideration for work, it automatically constitutes salary subject to social security contributions. Under the Court of Cassation's 29 June 2026 judgment, contributions are therefore due where a parent company grants a benefit to a Belgian subsidiary's employees intending to bind them long term, encourage their continued commitment or promote the faithful performance of their duties. If – for a benefit not to constitute the consideration for work – a parent company's separate cause for the grant can't fall within this Court-described broad scope, it's hard to see which other cause could realistically support it. Indeed, benefits a parent company grants to a Belgian subsidiary's employees are, by design, arguably rooted directly or indirectly in the employee's performance of the employment agreement, whether to reward past or safeguard future performance.
As a result, it'll be exceedingly more difficult, if possible at all, to argue and demonstrate that a benefit a parent company grants to employees of a Belgian subsidiary is rooted in a cause separate from the consideration for work.
For multinational organisations that reward Belgian staff through group incentive plans, the practical takeaway is to thoroughly reassess the social security treatment of parent-granted benefits in light of this new Court of Cassation judgment.
If you have any questions regarding the above or would like assistance in analysing your group incentive plan, don't hesitate to reach out; we'd love to hear from you!
Authors:
- Pascale Moreau, Lawyer - Partner at PwC Legal BV/SRL
