To Limosa or not to Limosa?
10 January 2013
The European Court of Justice ruled on 19 December 2012 that
the obligation on self-employed service providers not
established in Belgium to submit a notification before carrying out
any services in Belgium is contrary to the freedom to provide
services (art. 56 TFEU). General press coverage of the ruling has
suggested that the LIMOSA regulation for self-employed workers no
longer needs to be applied because of its incompatibility with
European law.
The statutory landscape – self employed service
providers
The ECJ has ruled on the so-called “Limosa”
obligation on self-employed persons, as laid down in section 153 of
the Programme Act of 27 December 2006 and now carrying criminal
penalties with reference to section 182(2) of the Employment
Criminal Code.
However, the ECJ has not ruled on the Limosa
obligation for firms that come to Belgium with their employees in
order to perform services on the Belgian territory.
The Court
The Court is of the view that the notification
obligation and the related formalities constitute a hindrance to
the free provision of services. The generalised
notification requirement makes it more difficult for self-employed
service providers established in other member states to provide
their services, says the Court.
However, the Court does recognise that the
objectives of the checks and the related notification duty that
Belgium imposes can justify a limitation on the free provision of
services.
Nonetheless, the Court does state that the
present notification requirement is excessively general and seems
to indicate that it would still be conceivable to amend the Limosa
legislation. Therefore, parliament will need to redo its homework
and limit the notification obligation to a number of
activities/sectors/… where it is needed in order that the necessary
checks can be done and abuse dealt with; they will also have to
make the list of information more efficient by only requesting
details that allow inspectors to uncover improper practices.
Conclusion
We remain of the view that it is best to make
a Limosa notification until further notice (change of legislation),
whether as a self-employed person or as an employer coming with its
employees to Belgium to provide services. That said, the
legislation will need some amending for the self-employed and
(probably) for employers submitting notifications on behalf of
their employees as the principles of both legislations are the
same.