For several years, the Esko case has been closely followed by Belgian employers and international groups granting Restricted Stock Units (RSUs) or other share-related incentives to employees of Belgian subsidiaries.
Following a first Supreme Court judgment and a seemingly favourable ruling by the Antwerp Labour Court of Appeal, the case appeared to have reached its conclusion. However, in a judgment of 29 June 2026, the Supreme Court added a new chapter to the saga and significantly restricted the possibility of granting RSUs without Belgian social security contributions.
I. The Esko saga in a nutshell
The dispute concerns RSUs granted by a foreign parent company to certain employees of its Belgian subsidiaries. The central question was whether these RSUs constituted remuneration subject to Belgian social security contributions.
Decision Outcome Key reasoning | Ghent Labour Court of Appeal (20 April 2020) | RSUs are subject to social security contributions. | The RSUs were considered to have been granted "at the charge of" the Belgian employers, given the terms of the incentive plan and the fact that the employees could ultimately turn to their Belgian employer if they believed that they had wrongly been denied RSUs.
| Supreme Court (5 September 2022) | The Ghent judgment is quashed. | A benefit is "at the charge of the employer" only if the employer has legally undertaken to grant it; a mere link with the employment is insufficient.
| Antwerp Labour Court of Appeal (20 November 2023) | RSUs are not subject to social security contributions. | The Belgian employers had not undertaken to grant the RSUs and bore no related cost. The parent company autonomously selected the beneficiaries, determined the grant, vesting and forfeiture conditions, and entered into the grant agreements directly with the employees. Although the Belgian employers could recommend employees and provide supporting information, they did not make the final grant decision. The court also found that the RSUs were intended to allow employees to participate in the group's capital and retain them over the longer term, rather than to remunerate work performed under their employment contracts.
Following the Antwerp judgment, international groups had some reason to hope that share-related incentives granted autonomously and financed by a foreign parent company could fall outside the Belgian social security concept of remuneration, where they pursued a retention objective, provided that the Belgian employer had neither undertaken to grant nor financed the awards.
The judgment therefore appeared to open a potential avenue for structuring equity incentives in a more favourable manner from a Belgian social security perspective.
II. The latest chapter in the Esko saga: Supreme Court Ruling of 29 June 2026
In its judgment of 29 June 2026, the Supreme Court quashed the Antwerp judgment.
The Supreme Court reiterated that remuneration in the employment-law sense is the consideration for work performed under an employment contract. Where a benefit qualifies as such, it constitutes remuneration irrespective of whether it is granted directly by the employer or by a third party.
The decisive part of the judgment concerns the purpose of the RSUs. The Supreme Court expressly held that benefits granted to bind employees to the undertaking, encourage their continued commitment or promote loyal performance are granted as consideration for work and therefore constitute remuneration in the employment-law sense.
This directly contradicts the Antwerp Labour Court of Appeal's reasoning. A retention objective cannot be regarded as autonomous or unrelated to the employment relationship. On the contrary, a benefit intended to encourage employees to remain with the undertaking and continue performing their duties is, by its very nature, granted in consideration for work.
Consequently, the fact that the RSUs were intended to retain employees within the group could not support the conclusion that they were unrelated to their work. According to the Supreme Court, that purpose instead indicated that the RSUs constituted consideration for work.
Put simply, the judgment shifts the focus from the formal question of who grants and finances the benefit to the substantive question of why it is granted.
III. Takeaway and what to expect next
The practical impact of the judgment is far-reaching. It will now be extremely difficult — and may in practice be virtually impossible — for international groups to obtain favourable Belgian social security treatment for equity-based incentives granted to employees by a foreign parent company.
The decisive question is no longer primarily who formally grants or finances the award, but why the employee receives it.
In practice, equity-based incentives are generally awarded because the beneficiaries are employees of the group and with a view to rewarding their contribution, retaining them, encouraging their continued commitment or aligning their interests with those of the group. Following the Supreme Court's judgment, such objectives point directly towards the award constituting consideration for work and, therefore, remuneration subject to Belgian social security contributions.
The fact that the award is granted autonomously by a foreign parent company, that the Belgian employer has not contractually undertaken to grant it, that the Belgian employer bears no related cost and that no chargeback occurs will not alter that conclusion where the award is substantively linked to the employee's work, continued service or commitment.
Although the case has been referred to the Brussels Labour Court of Appeal, the key legal principle has now been settled by the Supreme Court. The referring court must apply the principle that benefits granted to retain employees, maintain their commitment or encourage loyal performance constitute consideration for work.
In theory, an equity-based benefit granted for reasons genuinely unrelated to the employment relationship could still fall outside the strict employment-law concept of remuneration. In practice, however, identifying such a purpose will be exceptionally difficult where the beneficiaries receive the award precisely because they are employees of the group.
The judgment therefore appears to leave international groups with very limited room to treat equity-based incentives granted to Belgian employees as exempt from Belgian social security contributions. Formal separation between the foreign parent company granting the award and the Belgian employer will no longer, in itself, offer meaningful protection.
Liedekerke's employment team continues to advise international groups on the Belgian social security treatment of equity incentives and related structuring questions. For further information, please contact Liedekerke.
Authors:
- Alexandre Calain, Associate at Liedekerke
- Paul Geerebaert, Partner at Liedekerke
