How can Belgium’s Administrative Commission determine a Freelancer’s employment status?

The Administrative Commission may assess whether a working relationship corresponds to:

• an employment relationship performed under the authority of an employer; or

• an independent professional relationship performed without employment-law authority.

The Commission may issue an opinion or a decision.

An opinion provides the Commission’s assessment of the relationship but is consultative and does not bind the parties, courts or public authorities.

A decision has a stronger legal effect. It is binding on the public bodies specified by law, including the competent Belgian employment and social-security authorities, provided that:

• the facts supplied to the Commission were complete and accurate;

• the relationship continues to operate under the conditions examined by the Commission; and

• no material change subsequently affects those conditions.

The Commission does not replace the labour courts. Its decisions remain subject to judicial review.

One or both parties to the proposed or existing relationship may apply to the Commission, subject to the statutory conditions.

An application may generally be submitted:

• before the working relationship begins;

• within one year after the relationship begins; or

• within one year after a new fact or material change arises that may affect its classification.

The Commission cannot normally consider the application if:

• an administrative or criminal investigation into the status of the relationship is already underway;

• proceedings concerning the classification have already been brought before a court; or

• a court has already made a final determination concerning the relationship.

For the Commission to issue a decision concerning an existing relationship, that relationship must still exist when the Commission examines the application.

An application should clearly identify the relevant Freelancer, Client and Assignment. A general description of how the parties usually work may be insufficient where the practical conditions differ between Assignments.

The Commission examines the information supplied in the application and the supporting documents. It may request additional information and may hear the parties where this is necessary.

Relevant evidence may include:

• the Direct Client–Freelancer Service Agreement;

• the individual Assignment;

• statements of work and deliverables;

• invoices and payment records;

• communications and operational instructions;

• working-time or availability arrangements;

• reporting and supervision requirements;

• evidence of substitution or the personal performance of work;

• information about commercial and financial risk;

• evidence of work for other Clients;

• access to the Client’s internal systems or workplace; and

• information concerning the termination of the relationship.

The Commission applies the four general statutory criteria:

• the parties’ expressed intention, provided it corresponds to the practical relationship;

• freedom to organise working time;

• freedom to organise the work; and

• the possibility of hierarchical control.

Where a sectoral or platform-work presumption applies, the Commission must also examine the specific statutory factors governing that presumption.

The Commission normally issues its decision within three months. This period may be extended where additional documents or information are requested.

An opinion is sent to the applicant and remains consultative.

If an opinion concludes that the relationship should be reclassified, the applicant must notify the other party by registered mail within 30 days. That notification may open a new period during which the other party, or both parties jointly, can request a formal decision.

A decision is notified to all parties. It is also communicated to the public institutions specified by law and is published in anonymised form.

The decision binds the competent administrative authorities, including the relevant employment and social-security institutions. However, its binding effect may cease if:

• the parties supplied incomplete or incorrect information;

• the relationship does not operate as described; or

• the factual conditions subsequently change.

A reclassification decision by the Commission generally operates prospectively. The decision may be transmitted to the competent social-security institutions so that the necessary regularisation can be undertaken.

A party may challenge the decision before the competent labour tribunal within one month following notification. An appeal does not automatically suspend the decision, although the party may ask the tribunal to order suspension.