As from 1 April 2007, a prior duty of notification will be introduced for “posted” workers and self-employed persons.

This duty of notification is part of the government’s Limosa project, to establish records on all foreigners working in Belgium.

Who is affected?

The duty of notification applies to

- any worker who is employed in Belgium temporarily or partially after 1 April 2007 and normally works in one or more countries other than Belgium or is hired in a country other than Belgium;
- any self-employed person that after 1 April 2007 either establishes himself temporarily in Belgium in order to carry on one or more self-employed activities here, or temporarily or partially carries on self-employed activities in Belgium but normally works in one or more countries other than Belgium and does not permanently reside in Belgium.

Certain categories of foreigners may well yet been exempted by royal decree from having to submit a notification.

How?

A business that employs a worker in Belgium or a foreign self-employed person wanting to start working in Belgium has to give notice of this work (and the duration thereof) via the website of either the National Office for Social Security (for employees) or the National Institute for the Social Security of the Self-employed, as appropriate, before actually commencing work in Belgium. Notification can be processed by a person authorised by the party subject to the obligation (eg PricewaterhouseCoopers).

The details that have to be disclosed in the notice still need to be laid down by royal decree.

Consequences of notifying the employment of posted workers

If a notification is made for a foreign worker employed in Belgium, the employer is exempted for a given period from having to draw up a number of employment-related documents.

The exemption period has yet to be laid down by royal decree, but will probably be 12 months.

During this period, the employer is not obliged to draw up or keep a staff register or work regulations. Nor is the employer obliged to draw up and keep an individual account and payslip on condition he can provide the inspectors with comparable documents drawn up according to the law of the country of origin.

Consequences of not giving notification

If the employer or self-employed person fails to give notice, the user or principal for whom the worker or self-employed person comes to work in Belgium (directly or under subcontract) must make electronic disclosure of the identity of the relevant persons to the National Office for Social Security or the National Institute for the Social Security of the Self-employed before commencement of the work.

Failure to comply with the notification duty can render both the employer/self-employed person and the user/principal liable to criminal penalties. The fines range from EUR 1.375 to EUR 13.750 per breach, up to a maximum of EUR 687.500.

Employers failing to give prior notification can be liable to administrative fines of EUR 1.875 to EUR 6.250 per breach, up to a maximum of EUR 100.000, if there is no prosecution.

Transitional rules

Transitionally, it is provided that notification has to be given by 1 October 2007 for workers or self-employed persons already working in Belgium before 1 April 2007.

If notice is given voluntarily (declaration of posting) for posted workers already working in Belgium for a short period (less than 6 months) before 1 April 2007, no new notification is required unless the anticipated duration of the work is to be extended.