4. Trends and Specific Cases
a. New or Expected Developments
Several Belgian authors have already mentioned that some of the nine specific criteria introduced by the Act of August 25, 2012, could be difficult to apply in practice. For example, the criteria “Not acting as an undertaking towards other individuals or working, generally and habitually, for one contracting party” could be interpreted as an alternative criterion, but also as a cumulative criterion. In addition, several criteria refer to the notion of “undertaking”, but if the self-employed person works through an intermediary undertaking (i.e. his/her own management company), it is not clear whether the criteria refer to the self-employed person’s undertaking, or to the main undertaking (i.e. the principal).
Consequently, the National Labour Council (Nationale Arbeidsraad – Conseil Nation-al de Travail) has been asked by the federal government to evaluate both the general and sector-specific criteria, as these criteria are often found to be difficult to apply in some circumstances. For example, in certain cases the specific criteria may point in the direction of self-employment, whereas the general criteria may indicate the opposite. Also, the current set of criteria do not seem to be adapted to more contemporary forms of (self-)employment, such as services performed in the sharing economy. A report of the National Labour Council is expected in the beginning of 2017.
b. Recent Amendments to the Law
As previously mentioned in the Introduction, since mid-2013, the parties to an employ-ment contract, or the self-employed person who seek(s) legal certainty with respect to the working relationship, can request a social ruling from the Administrative Commission on Employment Relations (“Social Ruling Commission”) in order to reduce the risk of re-characterization and to avoid the related sanctions.
This ability can be used prior to beginning the relationship or during the first year. The ruling is valid for a period of three years. The final decision-making power to re-charac-terize an independent relationship into an employment agreement rests with the Labour Courts. However, the consequences of such re-characterization will be less severe, at least concerning social security matters, if the employer has obtained a social ruling.
Until 1 January 2016, the Social Ruling Commission rendered 48 decisions; a limited amount, which has decreased over time. Although useful in circumstances where there is a lot of legal uncertainty, the possibility to apply for a social ruling seems to have little success.