On 27 December 2012 the Belgian Parliament passed a budgetary law that contains provisions allowing the Belgian authorities to take action to combat abuse of the rules on applicable law under EU Regulation 883/2004 and related measures on the coordination of social security (Articles 22 -25 of the Framework Law of 27 December 2012, Belgian State Gazette 31.12.12, p. 88860).

Article 23 defines such abuse as consisting in “the application of the European coordinating regulations to the situation of an employed or self-employed worker where the conditions laid down by the regulations and as further specified in the Practical Guide [on the posting of workers] or in the decisions of the Administrative Commission are not fulfilled, in order to circumvent Belgian social security law that should have applied to such a situation had the provisions of the regulations and administrative been correctly observed”.

Article 24 provides that, in the event that a court, social security institution or labour inspector makes a finding of abuse, Belgian social security law will apply to the employed or self-employed worker concerned if Belgian law should have been applicable in accordance with the EU regulations.  Belgian law will apply retrospectively from the first day on which the conditions for its application were met subject to the limitations periods contained in Article 42(1) of the law of 27 June 1969 amending the Decree Law of 28 December 1944 relating to social security of employees and Article 16 of Royal Decree No 38 of 27 July 1967 relating to social security of the self-employed. Article 25 provides that the burden of proving abuse rests on the social security institution or labour inspector making the allegation.

It appears that this law is a reaction to several interconnected issues highlighted in a recent video produced by the European Parliament. Firstly, the Belgian authorities feel that there is too much undetected abuse of the EU rules on applicable law, as highlighted by the CJEU’s recent ruling in case C-115/11 Format. In that case, the Court ruled against the “abuse” of the EU rules on applicable law by a Polish construction company. Such practices are reportedly widespread in the construction industry. Secondly, the Belgian authorities consider that they are not obtaining the level of active cooperation which is required for the effective fight against abuse. They feel that some national authorities turn a blind eye to such “abuses” and are just content to receive social security contributions from the workers concerned. Thirdly, the Belgian authorities also feel that the mechanisms contained in the EU rules on coordination are too slow and cumbersome. Indeed, the Belgian authorities complain that by the time they do receive a response to their request for assistance from other national institutions, it may already be too late to take action against the “abuse”. For example, in the case of the posting of workers, a request for assistance may take several months to be processed, by which time the work has already been completed and the concerned workers have already left Belgium.

Although the point of view of the Belgian authorities may be understandable, it is questionable whether this law is compatible with the EU rules on the coordination of social security. The law makes no reference to the mechanisms for cooperation and the exchange of information between the national social security institutions under Article 76 of Regulation 883/2004 or Decision H5 of the Administrative Commission which is designed to enhance cooperation to combat fraud (2010) OJ C 149/5. It also undermines the procedures for resolving disagreements between institutions relating to the applicable law under Article 11 of Regulation 987/2009 or those relating to doubts over the validity or accuracy of social security forms issued by institutions under Article 5 of the same regulation.  The Court has previously confirmed that Form E101 (replaced by Form A1) is binding on the institution which receives it until such a time as it is revoked by the issuing institution (Case C-178/97 Banks and Case C-2/05 Herbosch Kiere). Where there is doubt as to the accuracy of social security forms, the issuing institution is under a duty to investigate and, if the conditions for its issue are no longer met, under an obligation to revoke the form (Case C-202/97 Fitzwilliam).

As a result, in the event the Belgian law is the subject of a legal challenge and the issue if referred to Luxembourg, it is unlikely that the law will withstand scrutiny by the EU Court of Justice.