DIMONA-The Court of Cassation reverses its jurisprudence

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Our article “Binding value of A1 Certificates-impact on employment related breaches” released on June 14, contains reference to the Belgian Court of Cassation ruling in VERBRAEKEN EN ZONEN BVBA (P.21.0738.N of 19 October 2021).

In VERBRAEKEN EN ZONEN BVBA, confirming its previous position, the Court of Cassation held that the Dimona (immediate declaration of employment) is intended to apply the Belgian social security provisions, and therefore does not apply to workers with an A1 Certificate.

On 19 April 2022, in FONAK EOOD (P.21.1232.N), the Court of Cassation reversed its jurisprudence, and ruled that the Dimona declaration is not only intended to ensure affiliation to a social security system and compliance with the relevant regulations, but also an instrument in the context of labour law.

It follows that E101, and A1 Certificates issued by the competent foreign authority, do not exclude the obligation to make the Dimona declaration (i.e., provided that such a declaration is due).

The Court of Cassation finally confirms the position taken by the Court of Appeal of Ghent (i.e., position taken by the public prosecutor's office and by the Court of Appeal in previous cases as well).

The reasoning upheld by the Court of Cassation: fulfillment of the Dimona declaration triggers exemption from the obligation to maintain a general staff register.

It follows that by introducing the Dimona declaration, the purpose is not solely to ensure that the workers concerned are affiliated to a social security scheme, but “also aims to ensure the effectiveness of the checks carried out by the competent national authorities on the terms and conditions of employment laid down in labour law” (paragraph 10).

In simple words, employment within the Belgian territory, gives rise to the obligation to make the Dimona declaration (regardless of whether an A1 Certificate was issued by the competent authority of another Member State).

Failure to make the Dimona declaration gives rise to a breach sanctioned by the Social Criminal Code (imprisonment 6 months to 3 years and/or a criminal fine of EUR 4.800 to EUR48.000, or administrative fine of EUR 2.400 to EUR 24.000). The fine is multiplied by the number of workers concerned.

It is important to identify situations in which a cross border “deployment” is deemed employment within the Belgian territory.

Two mandatory tests must be carried out:

  • determining “who is the employer?” (or who are the employers?) - the factual performance of an employment contract (i.e., authority normally exercised by the employer, total or partial transfer of the authority normally exercised by the employer)-see inter alia the ECJ rulings in Manpower (C-35/70), AFMB and Others (C-610/18) -social security coordination, Voogsgeerd (C-384/10), Koelzsch (C-29/10)- international private law, Danosa (C-232/09)-case law on employment relationship, Title XIII of the Belgian Programme Law (I) of 27 December 2006, Law of 24 July 1987 on temporary work, temporary agency work and hiring out of workers for the benefit of users, and the relating national jurisprudence
  • as regards cross-border situations prima facie qualifying as “posting of workers” in the meaning of Directive 96/71/EC as amended by Directive 2018/957/EU, the “Identification of a genuine posting” must be a prerequisite for any further action (Article 4 Directive 2014/67/EU as transposed by Article 2 Law of 5 March 2002)-situations that does not fall under the scope of Directive 96/71/EC, are deemed employment within the Belgian territory

 

Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides in-depth advice on rights and obligations triggered by the cross-border element of a given legal situation. Our know-how is built on an extensive experience in EU law and is supported by a network of partners across the EU. Social security coordination : • Autonomous application of the social security coordination regulations and ECJ case-law, to any situation involves a cross-border element EU Company law : • Establishment -permanent activities • Establishment -self-employment activities International Private Law : • Law applicable to the employment relationship Labour and employment law : • Freedom of movement of workers-equal treatment, access to social benefits • Employment contracts and termination of employment • Working conditions • Employee benefits • Transfer of undertakings • Authorisations of work for third-country nationals Special regimes : • Posted workers • Frontier workers • Highly mobile workers • Employment of record • Intra-EU mobility of third-country nationals