According to Royal Decree n°38 of 19 December 1967, persons who are appointed as officers in a corporation or an association that is subject to Belgian corporate income tax or non-resident income tax are presumed to carry out a self-employed professional activity in Belgium, which gives rise to subjection to the social security regime for self-employed persons.
Where in the past this presumption was irrefutable, since 3 November 2004 and based on case of law of the Belgian Constitutional Court, the presumption can be refuted if it can be demonstrated that the mandate is “de jure and de facto” (legally and factually) performed on an unremunerated basis. The refutable nature, however, only applied to those persons performing their mandate from Belgium.
The latter was however found in breach with EU legislation by the Court of Justice. In its decision of 27 September 2012 (C-137/11), the Court considered that also self-employed persons who are performing their mandate from a country of the European Economic Area, from Switzerland or from a country with which Belgium has concluded a social security agreement, should be able to refute this presumption.
The Act of 25 April 2014 -published on 6 June 2014- modified Belgian legislation accordingly by explicitly providing that a mandate is refutably presumed to constitute a self-employed professional activity on the one hand, and by determining that a person can now refute that the mandate is performed in Belgium on the other hand.
In respect of this first element, the Royal Decree of 27 May 2014 now further implements the Act by determining that as from 1 July 2014 officers in a corporation or an association can demonstrate the legally unremunerated nature of their mandate based on:
- a provision in the statutes;
- a decision of the competent company body;
Such provision in the statutes or decision of the competent body can only take effect at the earliest 12 months preceding:
- the month in which the statutory provision or the decision of the competent body is published in the annexes of the Belgian Gazette, or
- the month in which the statutory provision or the decision of the competent body is communicated to the social insurance fund to which the self-employed person is affiliated or, in absence of such an affiliation, to the NISSE (“RSVZ/INASTI”).
As before, the unremunerated nature of the mandate cannot be accepted if the person is in anyway whatsoever receiving any revenue from the mandate. The Royal Decree explicitly confirms that also premiums or contributions funded by the corporation or association in order to build up an additional pension for the company officer exclude the unremunerated nature of the mandate.
Where the Court of Justice only required Belgian legislation to be modified in respect of EEA citizens, the text of the RD n°38, as modified by the Act of 25 April 2014, seems not to be limited to EEA citizens performing their mandate from within the EEA. Therefore, officers in Belgian companies or associations can, regardless of their nationality or the location from where their mandate is performed, demonstrate the legal and factual unremunerated nature of the mandate.
Finally, and as indicated above, the Act of 25 April 2014 also modified Royal Decree n°38 in such way that an officer of a corporation or an association can refute the presumption that the mandate is performed from within Belgium. A Royal Decree further implementing how this presumption can be refuted is still to be published. However, upon successfully refuting this presumption, Royal Decree n°38 will no longer be applicable for those officers who can demonstrate that they perform their mandate from outside Belgium, and no affiliation nor contribution obligation will apply in application of RD n°38.