Social ruling procedure in place and operational
In the framework of the fight against false self employment, the Act of December 27, 2006, as modified by the Act of August 25, 2012, established a Social Ruling Commission (hereafter: ‘SRC’). Parties who are working together on a self employed basis by virtue of an agreement can apply at the SRC for a ruling to qualify their collaboration (i.e. as a service agreement and not an employment contract).
On February 21, 2013, the Belgian Government published a Royal Decree appointing the members of the SRC and determining the procedure for a ruling (hereafter: ‘Royal Decree’) in the Belgian Official Gazette.
We hereby provide you with the outlines of the social ruling procedure.
- The Royal Decree creates two sections of the SRC, one French speaking section and one Dutch speaking section. Both sections are presided over by a magistrate and are composed out of personnel from the different social security authorities.
- The request for a social ruling is applied for by filing a request form which is to be sent via registered mail to the register or filed directly at the register of the SRC. The request form must mention certain information, including the name of the applicant(s), and must be signed by the applicant(s).
- If the request is filed by an applicant who starts up a business as an independent contractor entering into a collaboration, the request can be done with the social security fund together with the affiliation to the social security fund.
- The meetings of the SRC are not public and the SRC will rule in principle solely on the basis of a written file, unless the applicants explicitly request to be heard. At any time, the SRC can request for additional information if deemed useful.
- The applicants can be represented before the SRC by an attorney should they choose so.
- A social ruling can be requested within one year after the start of the collaboration. Parties who are currently working together and wish to request for a social ruling must file the request within one year as from the date of publication of the Royal Decree
- Once the application for a ruling has been duly filed, the SRC has three months to come to a ruling, unless additional information was requested by the SRC during the application process, and the ruling is valid for three years. An applicant has one month to appeal against the ruling with a court of law.
- The ruling protects the collaborating parties from a potential requalification of the collaboration by the social security authorities as an employment agreement provided that the applicants continue to perform in accordance with the collaboration subject to the ruling and provided that the application for a ruling was based on true statements, facts and elements
- The SRC will publish its rulings annually.
As a conclusion, the social ruling offers parties to a service agreement the possibility to obtain an authoritative decision regarding their collaboration on a self employed basis, issued by a body presided over by a magistrate.
The social ruling could prove to be a useful tool for companies hiring self employed contractors to ensure that their collaboration cannot be perceived as an employment contract, thus avoiding potential criminal and civil liability to claims by the authorities for arrear social security taxes.
On the other hand, it remains to be seen if parties wish to disclose their collaboration up front to the SRC, especially when the outcome of the ruling is deemed to be uncertain.
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