During recent years, an increasing number of people has started to use the electronic bicycle, not only for recreational purposes, but also for commuting. The question therefore arises what contribution to the commuting costs an employer should pay to a worker commuting by using his or her electronic bicycle?
The Royal Decree of 28 November 1969 allows paying an employee who uses his or her bicycle for travelling to work an allowance of € 0,22 per kilometre (amount currently applicable) exempt of all social security contributions. This Royal Decree does nevertheless not include a definition of the notion “bicycle”, hence this Royal Decree does not expressly stipulate whether or not this allowance can also be paid to a worker who uses an electronic bicycle.
The traffic legislation, in particular the Royal Decree of 1 December 1975, on the other hand, does include a definition as to what constitutes a bicycle. Under this legislation, an electronic bicycle only constitutes a bicycle if the engine stops working once a speed of 25 kilometres per hour is reached and the power of the engine is limited to 0,25 kW.
A considerable part of the current electronic bicycles nevertheless have an engine allowing to reach a speed of up to 45 kilometres per hour and an engine power exceeding 0,25 kW, the so-called “speed pedelecs”.
These bicycles are considered, under the traffic regulations, to be motorcycles of category B.
On 21 March 2016, a member of Parliament therefore formulated the question whether or not the bicycle allowance can also be paid to a worker using the latter kind of electronic bicycle without the allowance becoming subject to social security contributions.
In his reply, the Minister of Social Security started by pointing out that the legislation on the bicycle allowance does not stipulate a definition as to what constitutes a bicycle, contrary to the traffic legislation. He also pointed out that the social security legislation and the traffic regulations are two completely different subjects, hence the different objectives of the two sets of legislations can justify the use of a different definition. The fact that an electronic bicycle reaching a speed of 45 kilometres an hour is classified as a motorcycle of category B and therefore, a person using this bicycle should for instance wear a helmet and have an insurance, is indeed irrelevant to the question whether or not an allowance exempt of social security contributions can be paid when a worker uses this type of electronic bicycle for commuting.
The Minister of Social Security concluded that, while the law is currently silent on this point, the bicycle allowance should in her view be possible for all types of electronic bicycles, including those with a motor working up a speed of 45 kilometres per hour. She indicted the social security administration will be invited to publish clear guidelines on this subject in the nearby future, which has nevertheless not yet been the case.
