Social Security
Belgium & the Netherlands | Things get heated for Belgian volunteer firefighters! Beware of ‘civil’ servant qualifications’ in international employment setups
Summary
Within the framework of the EU 883/2004 Regulation and the context of a simultaneous employment situation, civil servant activities prevail irrespective of the other professional activities. Consequently, even if very limited, it is important to take into account the civil servant activities of your employees.
The detail
Be aware! – Civil servant activities might impact the applicable social security scheme in a cross-border situation within the EEA and Switzerland
Short Recap
Over the last few months, our Belgian and Dutch social security teams have been confronted with several cases of Dutch employees – who were subject to the Dutch social security scheme – becoming subject to the Belgian social security scheme just because of their volunteer firefighters activities in Belgium. Within the framework of the EU 883/2004 Regulation and the context of a simultaneous employment situation, civil servant activities prevail irrespective of the other professional activities. Firefighters are protecting us, but who is protecting them?
Lifesaving but marginal activities
In case of simultaneous professional activities in several countries of the EEA and Switzerland, the EU Regulation 883/2004 should be considered in order to determine the applicable social security scheme. A key principle is that only one legislation applies. Under the Regulation 883/2004, marginal activities (activities that comprise less than 5% of the employee’s normal working time and/or less than 5% of his/her total wages) are not taken into account when establishing applicable legislation. Consequently, the first step to be taken to determine the social security legislation in an international situation is: will the person work more or less than 5% in a country? As long as someone does not work 5% in a country, this activity will not be taken into account. Also lifesaving volunteer firefighting activities can therefore be considered as marginal when not reaching this threshold.
It is important to be aware that – contrary to recent case law of the Belgian Court of Cassation – the Belgian social security authorities look in this respect to the share of activities in a country ‘as a whole’ and is thus not looking at it ‘per type of activity’ (e.g. 4% self-employed activities and 4% civil service activities in one country will be considered as exceeding the 5% threshold).
Civil service activities prevail
Once it has been determined that the situation qualifies as a simultaneous employment, the second step is to determine the type of employment status the person has: whether they are an employee, self-employed, or civil servant. Important to note is that the qualification of each activity within the context of the legislation of the country where the activity is performed is taken into account. According to Regulation 883/2004, civil servant activities take precedence over employee and/or self- employed activities when determining the applicable social security system in an international employment situation.
Volunteer firefighters
As of March 2020, the Belgian authorities decided that volunteer firefighters need to affiliate with the occupational disease insurance for civil servants. Prior to this message, volunteer firefighters were either not protected by occupational disease insurance or – when exceeding a specific income threshold – to the generic occupational disease insurance (as applicable in the private sector). This served a noble purpose, namely ensuring that also volunteer firefighters are insured in case of a work accident. However, in an international context, this change has serious implications. Since then, every volunteer firefighter, regardless of salary level, is automatically classified as a civil servant by the Belgian social security authorities. Consequently, even if a person only works 5% as a volunteer firefighter in Belgium and normally works full time in a country other than Belgium, he will automatically be subject to the Belgian social security system.
For example, an employee normally works 100% in the Netherlands and would generally be subject to Dutch social security. In his spare time, he is a volunteer firefighter in Belgium:
Over the past few months, we have been confronted with several such volunteer firefighter cases where the Belgian social security authorities retroactively claimed the application of the Belgian social security scheme.
Volunteer firefighters are therefore literally caught between two fires: their voluntary activities and their employer (who also has to bear the consequences of the voluntary activity). Although our attempts to obtain an approval to exceptionally apply the Dutch social security scheme based on article 16 of the EU Regulation 883/2004 in these cases, were so-far mostly unsuccessful, the Belgian authorities acknowledged that this situation is unfavorable and they may reconsider the delivery of an exceptional deviation on the basis of article 16 of the EU Regulation, depending on the concrete circumstances of a particular case; a general sustainable solution is currently not (yet) at hand. After discussions with the Dutch social security authorities, it seems that they also are willing to grant an article 16 approval, but only for a maximum period of 5 years and not as a general principle; case-by-case assessment will be required.
Even when both authorities would agree to applying the article 16 exception, this looks more like a Sword of Damocles. Once the 5 year threshold will be passed, there is no way back.
Civil servant activities in the broad sense
The above applies to all civil servant activities, reaching the threshold of no longer being considered as ‘marginal’. As soon as someone exercises civil servant activities, which are thus not limited to volunteer firefighter activities, this might immediately impact the applicable social security scheme. A classic example we see in practice are teachers or guest lecturers at Belgian universities or university colleges, which are sometimes considered as civil servant activities from a Belgian point of view. It is therefore important to be aware of any other activities your employees execute next to their employment and that this might have an impact on the applicable social security scheme. A switch in the applicable social security scheme will come with additional (or at least other) employer’s obligations and it might thus be worthwhile imposing certain information obligations on your employees in their employment agreement.
How can we help to put out the fire?
To make sure that you meet your compliance and contribution obligations, it is important that you apply the EU 883/2004 Regulation correctly. Vialto Partners can help you identify the employees executing activities that might be considered as ‘civil servant activities’ and the impact thereof on their social security position. Furthermore, we can assist you with filing for the request for an exemption or
– if that would not be possible – the retroactive affiliations and the contacts with both the Belgian and the Dutch authorities.
Contact us
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Bart Elias
Partner
Martijn De Meulemeester
Director
Cecile de Rooij
Manager
Further information on Vialto Partners can be found here: www.vialtopartners.com
Vialto Partners (“Vialto”) refers to wholly owned subsidiaries of CD&R Galaxy UK OpCo Limited as well as the other members of the Vialto Partners global network. The information contained in this document is for general guidance on matters of interest only. Vialto is not responsible for any errors or omissions, or for the results obtained from the use of this information. All information is provided “as is”, with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of this information, and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular purpose. In no event will Vialto, its related entities, or the agents or employees thereof be liable to you or anyone else for any decision made or action taken in reliance on the information in this document or for any consequential, special or similar damages, even if advised of the possibility of such damages.
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Further information on Vialto Partners can be found here: www.vialtopartners.com
Vialto Partners (“Vialto”) refers to wholly owned subsidiaries of CD&R Galaxy UK OpCo Limited as well as the other members of the Vialto Partners global network. The information contained in this document is for general guidance on matters of interest only. Vialto is not responsible for any errors or omissions, or for the results obtained from the use of this information. All information is provided “as is”, with no guarantee of completeness, accuracy, timeliness or of the results obtained from the use of this information, and without warranty of any kind, express or implied, including, but not limited to warranties of performance, merchantability and fitness for a particular purpose. In no event will Vialto, its related entities, or the agents or employees thereof be liable to you or anyone else for any decision made or action taken in reliance on the information in this document or for any consequential, special or similar damages, even if advised of the possibility of such damages.
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