Unlimited stay, opportunity or warning light?
Third-country nationals, posted to Belgium, can be authorised to stay for an unlimited period.
Third-country nationals, posted to Belgium, can be authorised to stay for an unlimited period. Practically, the Immigration Office, based on its discretionary power, issues to long-term posted workers, residence permits type B, valid five years.
Such authorisation can be considered on the one hand as a warning light and on the other hand as an opportunity. Although a very particular case, it merits assessment in the light of the national legislation and EU law.
Pursuant to Article 9.6° Royal Decree of 9 June 1999, third-country nationals, posted, are eligible for work permit in Belgium, for a duration of maximum eight years.
Article 2 Law of 5 March 2002, implementing Directive 2014/67/EU (on the enforcement of Directive 97/71/EC), provides for the definition of “posted worker” (“for a limited period , carries out his work in Belgium”) and for the assessment criteria to determine whether the worker temporarily carries out his or her work in Belgium, inter alia, whether “the work is carried out for a limited period of time” , “the date on which the posting starts” and whether “ the posted worker returns to or is expected to resume working in the country from which he or she is posted”.
According to the case law of the ECJ, on the one hand, the maximum duration beyond which a supply of service can no longer be regarded as a provision of services, cannot be determined in an abstract manner (judgment of 11.12.2003, case C-215/01, Schnitzer, rec. 28 and 31. cf. judgment of 30.11.1995, C-55/94, Gebhard), and on the other hand, “an activity carried out on a permanent basis, or at least without a foreseeable limit to its duration, does not fall within the Community provisions concerning the provision of services” (see inter alia judgment of 7.9.2004, case C-456/02, Trojani, rec. 28).
It must be observed that Article 2 Law of 5 March 2002, does not distinguishes between intra-EU mobility and workers posted by an undertaking established out of the Community. Pursuant to Directive 96/71/EC, the latter cannot be given a more favourable treatment. However, the EU law does not preclude Member States from imposing less favourable conditions to undertakings established out of the Community.
Pursuant to Article 4.4 Directive 2014/67/EU, the failure to satisfy one or more of the criteria determining whether a posted worker temporarily carries out his or her activity in the host country, “shall not automatically preclude a situation from being characterised as one of posting”. Although not transposed into the national legislation, as far as intra-EU mobility is concerned, the provision has direct effect (i.e. can be enforced by individuals in their national courts). Depriving undertakings established out of the Community from the right to enforce such provision, has no intrinsic connection with the rights determined by Directive 2014/67/EU, and as a consequence, in determining whether a third-country national posted, temporarily carries out his or her work in Belgium, the authority has the discretionary power to consider exclusively one or several criteria.
It must be noted that the social security subjection is not a criterion in determining whether the worker temporarily carries out his or her work in Belgium. Pursuant to social security agreements entered between Belgium and certain third-countries, the social security subjection in the country of employment is limited to a period below or equal to five years. However, in certain cases, the competent authorities may agree that the employee remains subject to the social security in the employment country, beyond such period. Nationals of countries that have not entered a social security agreement with Belgium, cannot be subjected to the local social security system.
Having regard to the above considerations, third-country nationals posted to Belgium and authorised to stay for an unlimited period, should avail themselves of the opportunity to take local employment (being exempt of the obligation to hold a work permit), or merely resume working in the country from which they are posted.
It is hard to allege that after a long-term posting, a worker authorised to stay for an unlimited period, may qualify under the definition of “posted worker “as provided for by the Law of 5 March 2002.
More ever, the authority may decide to assess the case in the light of Article 4.5 Directive 2014/67/EU and the national legislation on hiring out of workers (notably the Law of 24 July 1987 amended by the Laws of 13 February 1998 and 12 August 2000, and the Programme Law of 27 December 2012).