An employer based in a Member State of the European Union (EU) that wishes to send an employee to work in Belgium should keep in mind that the applicable social security rules are subject to change as from 1 May 2010. The same holds true if the employer has employees working simultaneously in different EU countries and if a foreign employee is appointed director of a Belgian company.

As a general rule, on 1 May 2010, Regulation (EC) No 883/2004 on the coordination of social security systems (hereinafter "Regulation No 883/2004") and Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation No 883/2004 will replace Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (hereinafter "Regulation No 1408/71") and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation No 1408/71.[1]

Below we explain some of the main changes introduced by Regulation No 883/2004.

Secondment

Currently, in the event of a secondment from an EU Member State to Belgium, the social security legislation of the state where the seconded employee habitually works will continue to apply, provided the initial secondment to Belgium does not exceed 12 months. This period can be extended to 24 months with the approval of the Belgian National Social Security Office (NSSO). The secondment can be extended further, upon request, up to a maximum period of five years at the NSSO's discretion.

As from 1 May 2010, in the event of a secondment, the social security legislation of the state where the seconded employee habitually works will continue to apply, provided the initial secondment to Belgium does not exceed 24 months. Again, upon expiry of this period, the secondment can be extended, upon request, up to a maximum period of five years, at the NSSO's discretion.

Simultaneous employment

Currently, an employee that works for an EU-based employer in several EU Member States and resides in one of the states in which s/he works is subject to the social security legislation of his or her state of residence.

As from 1 May 2010, such an employee will be subject to the social security legislation of his or her state of residence provided the employee performs a substantial part of his or her activities (i.e., at least 25% of working time and/or salary) in that country. If the employee spends less than 25% of his or her working time in the state of residence, s/he will be subject to the social security legislation of the country where the employer is established (i.e., the country where the employer's registered office or principal place of business is located).

Other rules apply if the employee works in several countries for different EU-based employers.

Working as an employee abroad and as a self-employed person in Belgium

Currently, as a general rule, a person working as an employee abroad and as a self-employed person in another EU Member State is subject to the social security legislation of the country where s/he works as an employee. However, in Belgium, further to Annex VII to Regulation No 1408/71, in this case, both Belgian and foreign social security legislation will apply.

More precisely, Annex VII to Regulation No 1408/71 specifies that if a person is self-employed in Belgium but an employee in another EU Member State, Belgian law shall apply to income from that person's self-employed activities while the law of the Member State where the person works as an employee shall apply to income from work performed in that state. Thus, the legislation of both Member States will apply.

Annex VII to Regulation No 1408/71 will be withdrawn effective 1 May 2010. As a result, a person working as an employee abroad and as a self-employed person in Belgium will be subject to the social security legislation of the country where that person performs activities as an employee.

Transitional measures

Transitional measures have been provided for a maximum period of 10 years. International employment situations in existence on 1 May 2010 will continue to be subject to the social security legislation indicated by Regulation No 1408/71 provided the situation remains unchanged and the employee or self-employed person does not expressly opt for the application of Regulation No 883/2004 by a given deadline.