Belgian employment law has no specific rules applicable to company managers. As the Brussels Labour Court stated in a judgment issued on 19 April 2007, “Belgian employment law is characterised by a binary distinction between employees and self-employed persons”. Although no definition is provided for by law, a company manager can be considered any person entrusted with the power to manage and represent a company. Hence, the company manager is a person to whom authority is delegated by the company.
Regardless of whether the company manager is a director, managing director, daily manager or the holder of a specific power of attorney, this individual is, in principle, a self-employed person who is legally independent of the company. This principle arises from Article 3 §1(4) of Royal Decree No. 38 on the status of self-employed persons, pursuant to which a person entrusted with a delegation of authority within a company or association, and who is liable for Belgian company tax or Belgian non-resident tax, is presumed to exercise a professional activity as a self-employed person in Belgium. Consequently, the company manager is obliged to be affiliated to a social insurance fund for self-employed persons.
However, it is possible for the manager to challenge the abovementioned presumption of self-employed status and consequently to object to the requirement of affiliation to a social insurance fund for self-employed persons. This possibility has existed since the Constitutional Court, in a judgment rendered on 3 November 2004, declared that the irrefutable nature of the presumption established by royal decree is discriminatory.
In order to be released from the affiliation obligation, the company manager must provide the National Institute for Social Security of Self-employed Persons (NISSE) with proof that the delegation of authority is performed without remuneration, both in fact and in law. In practice, this means that neither the company’s articles of association nor its management organ can provide that the delegation of authority is remunerated and this formal arrangement may not be contradicted by the facts.