What is the legal framework for employment and independent freelance work in Belgium?

The Act of 3 July 1978 concerning Employment Contracts provides the principal legal framework governing employment contracts.

An employment contract contains four essential elements:

• an agreement;

• work;

• remuneration; and

• employer authority.

The element that principally distinguishes an employee from an independent Freelancer is the employer’s authority over the worker.

Authority may include the power to:

• issue instructions;

• organise working time;

• determine where work must be performed;

• supervise performance;

• verify compliance with working procedures;

• approve absences or leave;

• evaluate performance; and

• impose consequences for non-compliance.

Authority does not have to be exercised continuously. The legal or practical possibility of exercising hierarchical control may be sufficient.

If employment is established, mandatory employment protections may apply, including rules concerning remuneration, working time, holidays, workplace protection, termination and social-security contributions.

An independent service relationship is generally based on a civil or commercial agreement under which the service provider undertakes to perform services or produce an agreed result for the Client.

A genuine independent Freelancer ordinarily:

• determines how the services are performed;

• has meaningful freedom over working time;

• operates outside the Client’s organisational hierarchy;

• can negotiate the scope and price of the services;

• bears at least some commercial or financial risk;

• may work for several Clients;

• may use employees, subcontractors or substitutes where appropriate;

• uses their own commercial identity;

• invoices for the services; and

• manages their own tax and social-security responsibilities.

The Client may define:

• the requested service;

• the expected result;

• the Assignment deadline;

• quality and security requirements;

• legal or regulatory obligations; and

• necessary coordination with the Client’s organisation.

These commercial requirements do not automatically create employment. The risk increases when they develop into detailed control over the Freelancer’s daily work.

The Belgian social-security status of self-employed persons is principally organised under Royal Decree No. 38 of 27 July 1967.

A self-employed person is generally someone who conducts a professional activity in Belgium without being bound by an employment contract or a statutory employment status.

A genuine self-employed Freelancer normally must:

• register the business where required;

• join a social-insurance fund for self-employed persons;

• pay self-employed social-security contributions;

• obtain a business number;

• register for VAT where applicable;

• issue compliant invoices;

• maintain appropriate accounting records; and

• declare professional income for tax purposes.

However, these registrations are not proof that the underlying relationship is genuinely independent.

A person may be correctly registered as self-employed for administrative purposes while nevertheless working under conditions that legally constitute employment.

Belgian Freelancer classification requires the contractual arrangement, administrative status and practical working relationship to be considered together.

The written agreement establishes the relationship intended by the parties. It may identify the individual as an independent contractor and define the services, Assignments, remuneration, deliverables and commercial responsibilities. However, the contractual classification is accepted only when it corresponds with the actual performance of the relationship.

A Freelancer may also be registered as self-employed, affiliated with a social-insurance fund, registered in the Crossroads Bank for Enterprises and, where applicable, registered for VAT. These registrations are required for independent professional activity but do not determine employment status.

The Programme Law of 27 December 2006 provides the framework for examining whether the chosen independent classification is compatible with the practical relationship. The assessment considers the parties’ intention, freedom to organise working time, freedom to organise the work and the possibility of hierarchical control.

Where the services fall within a covered sector or are organised through a qualifying digital platform, a statutory presumption may affect the classification. The presumed status can nevertheless be rebutted by evidence concerning the actual relationship.

If the relationship is genuinely independent, it remains governed principally by the service agreement, civil or commercial law and the social-security and tax regimes for self-employed persons.

If the relationship is reclassified as employment, the Employment Contracts Act, the employee social-security regime and relevant sectoral collective agreements may apply. The Client may consequently be treated as the employer and become responsible for employment rights, declarations and social-security contributions.