Corporate immigration in Belgium isn't a cut-and-dried issue. It's quite complex, reflecting the different circumstances, legal obligations, and tax implications of foreign employees and their employers.
Local vs. seconded or posted workers in Belgium is just one major distinction.
But it's a crucial one when your Belgium-based or multinational company needs foreign employees on Belgian soil for an extended period.
Getting the right work authorization for the specific circumstances is vital for business continuity-be it the completion of a project, training, research, or other corporate dealings.
Whether you're a foreign employee or employer, it helps to understand which legal route applies when it comes to getting a long-term work permit in Belgium.
Read on to learn about the differences between local and posted or seconded foreign employees in Belgium, and:
- Social security requirements
- The Single Permit application process
- Criteria and required documents
- Exemptions and exceptions
- And possible alternatives
Local vs. Seconded Employees: What's the Difference?
Before we get to the crux of the issue, you must know the difference between a local and seconded or posted employee-in the context of international employment and for the sake of this article.
A Local Employee
A local employee is a foreign individual working for a local employer in Belgium. The foreign worker is gainfully employed by a Belgian company (either short- or long-term) and must adhere to the applicable visa, employment, tax, residency, and social contribution requirements.
A Seconded or Posted Employee
A seconded employee also referred to as a "posted employee," is a foreign worker employed by their home country employer but temporarily deployed to Belgium.
In other words, when a company based abroad posts its employees to Belgium temporarily, such workers are seconded or posted employees. The foreign employer must comply with certain working conditions under Belgian law, including minimum salary thresholds.
The employment relationship between the posted worker and the foreign company must exist before and during the posting to Belgium.
Employee Lending in Belgium
"Employee lending" is defined under Belgian employment law as a situation where:
- An employer (e.g., the foreign company) allows a third-party (e.g., a local Belgian company) to use the services of its worker(s);
- and
- The third-party company partly exercises authority normally vested in the employer over such worker(s).
However, the Belgian Employee Lending Act prohibits any instructions qualifying as "exercising part of the authority vested in the employer" to be used or given to a third-party company.
As such, when a foreign company posts its employee(s) to Belgium, there's often a risk of illegal employee lending without the foreign company even knowing.
Factual aspects such as the following count as the third-party company exercising part of the authority vested in the employer:
- A posted worker obtaining approval from the third-party company to take leave for holidays, etc.
- A posted worker obligated to report absences to the third-party company.
- A third-party company conducting appraisals, etc.
That said, there are exceptions such as interim work and intra-group employee lending.
Moreover, you can usually mitigate "illegal employee lending" by virtue of a service agreement. The foreign company is the service provider, while the third-party company in Belgium is the service user.
The written service agreement must clearly define the precise functional and operational instructions related to the services provided that the user company can give to posted workers. Such instructions mustn't undermine the legal employer's authority, though.
While the service user company has health and safety legal obligations to such posted workers, the foreign employer's vested authority must remain intact.
Sounds tricky, right? It is, but there may be alternatives depending on your specific circumstances. It's best to consult with experts on Belgian law and business immigration to be safe.
Tax Residency Status
Foreign employees legally living and working in Belgium are generally considered tax residents and are taxed on their worldwide income.
A company possessing a legal personality that has its registered office, principal establishment, or seat of management in Belgium is typically considered a resident for tax purposes, too.
Foreign employers must also bear the potential tax implications in mind. Posting workers to Belgium may result in a permanent establishment in Belgium, triggering corporate income taxes due and payable.
Potential tax implications extend to the seconded employee as well, where any double taxation treaty between Belgium and the resident country may apply.
Of course, there are possible exceptions depending on the circumstances. Find out more about tax residency in Belgium here.
Social Security for Local vs. Posted Workers in Belgium
Third-country nationals employed locally (and their family members) are subject to Belgium's social security system and entitled to public health insurance.
Posted employees continue paying social security contributions in their home country and must have insurance cover for health and repatriation in case of emergencies.
They must also file an A1-form with their home social security office before working in Belgium to prove such continued affiliation.
With the A1-form, seconded workers (EU and non-EU nationals) can typically apply for a European Health Insurance Card in their home country.
Belgium has bilateral or social security agreements with some countries covering health insurance. In such cases, third-party nationals and their family members are entitled to healthcare in Belgium for the full duration of the posting (at the expense of the home/posting country).
However, if certain requirements aren't met, the posted employee doesn't remain subject to the home social security system. Belgian social security applies instead, and the foreign employer must affiliate with Belgium's social security administration and apply for a social security number.
The LIMOSA vs. DIMONA Declaration for Posted Workers
Generally, a foreign employer posting workers to Belgium who remains affiliated with their home country's social security system must file a LIMOSA Declaration with Belgium's Social Security Office.
Alternatively, in cases where the posted worker is subject to the Belgian social security system, the foreign employer must file a DIMONA Declaration. The posted worker is then registered as a "new employee" with the Belgian Social Security Office.
These declarations can be submitted online at the official Working in Belgium portal before the start of any work activities in Belgium.
The LIMOSA Declaration includes details about the foreign employer, industry sector, and the posted worker's activities in Belgium. It's valid for up to twelve months and must be renewed.
Non-compliance can result in severe administrative and criminal penalties for both the foreign employer and the third-party company in Belgium.
The Fixed-Term Single Permit in Belgium
Belgium's Single Permit scheme unifies the residence and work permit under a single application process and legal document. Essentially, it's a residence permit that includes work authorization.
Nationals from Switzerland, the EU, and EEA Member States (the EU plus Norway, Iceland, and Liechtenstein) don't need a permit to work and live in Belgium.
In principle, both locally hired and seconded non-EU/EEA/Swiss employees require a Single Permit to reside and work in Belgium for longer than 90 days.
This fixed-term permit is valid for up to three years (depending on the employment contract/service agreement) and can be renewed.
The process for local hires vs. seconded employees in Belgium is largely the same, although the requirements differ slightly. Certain exemptions and exceptions also apply.
Belgium's regional authorities (Brussels-Capital, Flanders, Walloon, and the German-Speaking Community) regulate labor market policy and employment-based immigration rules for third-country nationals.
They may also determine certain salary threshold requirements, privileged categories, and work permit exemptions.
Here's what you need to know:
Salary Requirements
Every foreign worker (posted or local) must be paid in accordance with Belgian law. The competent joint committee for each sector decides on minimum salary thresholds.
However, such remuneration can't be lower than 1,725.21 Euros in terms of the National Labor Council's Collective Labor Agreement No. 43.
Labor Market Testing
Third-country nationals can, in principle, only obtain a Single Permit after positive labor market testing. However, certain exceptions generally exist, including:
- Highly-skilled employees with at least a bachelor's degree
- Executives or managerial staff with a proven managerial position
- Trainees coming to Belgium in terms of a local training agreement immediately after obtaining a diploma
- Employees receiving classroom training at a multinational group's head office in Belgium
Each Belgian region publishes a list of shortage occupations, where labor market testing may also be excluded.
Who Submits the Application?
Belgian employers must submit Single Permit applications on behalf of their foreign employees via the One-Stop-Shop online portal: Working in Belgium.
Foreign employers of posted workers, however, must register with the Crossroads Bank of Enterprises (CBE) and mandate a Belgian representative or services provider to submit Single Permit applications.
Application forms can be found on the relevant regional authority's website:
The Required Documents
The following annexes must accompany Single Permit applications in Belgium:
- Copy of passport (all pages)
- Copy of highest obtained qualification (diploma, degree, etc.) or alternatively, proof of positive labor market testing
- Copy of the signed employment contract
- Police clearance certificate apostilled (less than 180 days old)
- Proof of payment of any admin fees
- Medical clearance certificate from an EU physician or an apostilled certificate from an alternate physician (less than 180 days old)
- Proof of health insurance coverage in Belgium or confirmation of Belgian health insurance
- Updated curriculum vitae (CV) and job description or contract reflecting the employee to be hired in a leadership role (for executives, directors, etc.)
Additional Requirements for Posted Workers
If the Single Permit application concerns a seconded or posted employee, the following is also required:
- A copy of the posted employee's assignment letter on the foreign company's letterhead signed by both parties, and including details such as:
- Name and address of the foreign employer
- Address of the working location or receiving entity in Belgium
- Commencement date and duration of the posting
- The posted employee's annual gross or taxable salary
- Country where social security contributions will be paid
- The posted employee's job title in Belgium
- Copy of the social security certificate of coverage, alternatively the LIMOSA Declaration confirmed by the Belgian Social Security Administration (a request form also suffices)
All documents must be in English, Dutch, French, or German or accompanied by a sworn translation in English, Dutch, French or German.
The Liaison Person for Posted Workers
A foreign employer posting workers to Belgium must also have a liaison person, who can be the employer, a worker, or any other natural person and needn't be domiciled in Belgium.
Such a liaison person serves as the point of contact for Belgium's inspection services and receives documents or notifications regarding the posted workers on behalf of the foreign employer.
The Single Permit Application Process
Once the Belgian employer or foreign employer's proxy has submitted the Single Permit application, the process proceeds as follows:
Step 1
The One-Stop-Shop receives the application and sends it to the correct regional authority.
Step 2
If admissible, the regional authority examines the employment conditions related to the employee's stay. If approved, the application is sent to the Immigration Office.
Step 3
The Belgian Immigration Office evaluates the application and the residency conditions related to the employee's stay.
Step 4
If the Immigration Office also approves the application, the employee receives a notification (Annex 46) accompanied by the two approval decisions. If no decision is made within four months, the Single Permit is deemed granted and must be issued to the employee (Annex 47).
Working in Belgium
Once approval is received, the foreign employee must apply for their long-stay Type D Visa at their nearest Belgian embassy or consulate. It's usually issued within a week.
The foreign employee (locally hired or posted) must then register at their local town hall upon arriving in Belgium. They'll receive their residency card and can start working while awaiting their Single Permit.
Processing Times, Duration of Validity, and Renewals
Processing times for Single Permits can take up to four months. However, in practice, the permit is issued much sooner.
Single Permits have a maximum validity period of three years, but renewals are possible and don't typically include labor market testing.
Family Members
Family members are typically defined as the partner or spouse of the Single Permit holder, as well as their descendants. They may join the third-country nationals in Belgium, but the validity of their permits is linked to the Single Permit-usually up to three years.
Third-country family members of EU nationals (and EU nationals themselves) enjoy more flexible and favorable conditions in this regard.
Possible Alternatives to the Single Permit in Belgium
Belgium's Single Permit isn't the only work permit available to local and seconded employees. Here are a few alternatives:
For Posted Workers and Intra-Company Transfers
A Single Permit may not be required for posted workers and intra-company transfers in certain circumstances. There are two primary alternatives:
The EU ICT Permit
The EU Intra-Corporate Transfer (ICT) Permit is a work residence permit valid in all European Union countries. Qualified third-country nationals can obtain an EU ICT Permit from any EU Member State.
The EU ICT Permit allows intra-company transfers of trainees, specialists, and managers from outside the EU to Belgium for more than 90 days.
In Belgium, the application process is similar to that of the Single Permit.
Moreover, EU ICT Permit holders from the other EU Member States can apply for a Mobile ICT Permit to work at the Belgian branch of their home employer (for up to or more than 90 days).
The EU ICT Permit is valid for up to three years for managers and specialists and one year for trainees. Permit holders must leave the Member State for three months before applying for a new EU ICT Permit. Alternatively, they can apply for the Single Permit.
The Van Der Elst Exception
Non-EEA nationals with a right of residence in another EU Member State may be exempt from obtaining a work permit under the Van Der Elst Exception.
It only applies to workers posted to Belgium for the provision of services by their EEA employer. Certain conditions must be met to benefit from this exception.
The worker must:
- Have a valid residence permit or right to reside for longer than three months in the resident EEA country
- Be lawfully employed in the EEA country, and the corresponding work permit must cover the duration of their posting in Belgium
- Have an employment contract
- Have a valid passport and residence permit covering the stay in Belgium (to ensure the worker's return to their home country or country of residence)
- Not provide any services that may be considered "employee lending: under Belgian law
For Locally-Hired Foreign Employees
Other alternatives also exist for foreign employees hired by local Belgian employers, such as:
The EU Blue Card
The EU Blue Card is a work residence permit designed for Non-EU professionals that are highly qualified. It allows such employees to reside, work, enter and re-enter an EU Member State (except Denmark and Ireland).
EU Blue Card holders and their family members may move freely within the EU. The Blue Card is valid for one to three years, and the application process works much the same way as the Single Permit in Belgium. Applicants aren't subject to labor market testing.
The Short-Term Work Permit
The Work Permit B in Belgium is a short-term permit valid for a maximum of 90 days. It takes up to 45 days for processing, and applicants must apply for their Schengen Type C Visas upon approval. Exemptions exist in some cases but are determined by the regional authorities.
The Unlimited Term Permit
After living and working in Belgium for five consecutive years, a foreign employee can apply for a Permanent Residency Card. It's valid for five years but includes an unlimited-duration work permit.
Get it Right the First Time
As you can see, obtaining the right kind of work authorization isn't always a straightforward process. Now that you have a better idea of Belgium's legal requirements for foreign employees, you can get your ducks in a row.
However, each situation is unique, so make sure you get it right the first time and enlist the help of business immigration experts. You can learn more here.
Sources:
https://economy-employment.brussels/single-permit-highly-qualified-director-seconded
https://ec.europa.eu/immigration/belgium-intra-corporate-transferee-ict_en
https://www.international.socialsecurity.be/working_in_belgium/en/home.html
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
