|GH 2017 Belgium|
A worker who has an employment contract is considered to be an employee. There are three essential elements making up an employment contract: work, remuneration and relationship of authority. The third element is the critical characteristic.
Independent contractors are referred to as “self-employed workers” in Belgium. A self-employed worker is any individual performing professional activities within the scope of which he/she does not work under the authority of an employer. Consequently, the criteria for distinguishing between a self-employed person and an employee are based on the existence or the absence of a link of subordination between the contracting parties: if one of these parties exercises an employer’s authority over the other, the employment relationship is deemed to be an employment contract.
Before 1 January 2007, the guidelines for distinguishing employees from independent contractors were based on the jurisprudence of the Court of Cassation (Belgian Supreme Court), which rendered several important decisions in this matter. The Belgian government nevertheless decided to regulate this matter at the end of 2006, with the so-called “Employment Relations Act of 2006”1, which was primarily a reflection of the jurisprudence of the Court of Cassation.
Since mid-2013, the parties to an employment 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.