COVID-19 and cross-border employment: is Belgium heading for a “force majeure” approach with its neighbouring countries?


In our newsflash of 15 April 2020, we were pleased to inform you that the Netherlands and Germany came to a mutual agreement regarding a “force majeure” tolerance for cross-border employment situations that are impacted by the coronavirus (COVID-19) pandemic. The Dutch-German agreement certainly embodies the recent OECD recommendations of 3 April 2020 (see our newsflash of 6 April 2020 in this respect).

Indeed, these exceptional circumstances call for an exceptional level of coordination between countries in order to mitigate the compliance and administrative costs for employers and employees associated with the international travel restrictions / COVID-19 measures imposed by governments, pushing cross-border workers into forced telework (home office) for many weeks now.

As mentioned in our newsflash of 17 March 2020, Belgium and Luxembourg have already agreed that the current situation linked to the coronavirus constitutes a case of ‘force majeure’, for which no home working day in Belgium is to be counted under the specific 24-days rule. Furthermore, a specific tolerance is applicable for certain tax residents of France who normally work in Belgium and who are still subject to the former frontier worker regime (which is still applicable in a phase-out scenario).

However, there is a substantial need for a more general tolerance, which is relevant for all residents of France (not only those under the former frontier worker scheme) and vice versa (for all residents of Belgium who normally work fulltime or partially in France). Such a tolerance is also relevant for tax residents of Belgium who are structurally working in other countries, such as for example in the Netherlands, and vice versa.

In this respect, things seem to be moving. Indeed, based on recent parliamentary documents (Q&A) it now seems to be the intention of the Belgian Competent Authority to come to a coherent force majeure approach between Belgium and its neighbouring countries: the Netherlands, Germany, France and Luxembourg, similar to the provisions of the recent Dutch-German agreement. It seems that the international negotiations with the countries involved have advanced significantly.

In case of any further questions, please do not hesitate to contact Sandrine Schaumont or Philip Maertens.