BREXIT AND FREE MOVEMENT OF PERSONS
The Brexit approaches and will have a major impact in several areas. What is the state of play today regarding labour law, social security and residence regulations?
The approaching Brexit has a major impact not only on Belgian businesses, but also on citizens who previously exercised the free movement of persons (United Kingdom (UK) nationals residing in the European Union (EU) or EU27 nationals residing in the UK).
As a result of the withdrawal agreement (WA), nothing will change during the foreseen transitional phase until 31.12.2020, the EU achievements and thus the free movement of persons will remain valid during that period.
For the period after the end of the transitional phase, a new framework for the mobility of persons between the EU and the UK will come into force.
Applicable social security
As far as social security is concerned, there are no changes until 31 December 2020 regarding all branches of social security falling under federal competence (pensions, unemployment, health care, invalidity and incapacity benefits, benefits for accidents at work and occupational diseases).
In accordance with the coordinating Regulation 883/04 which governs social security applicable within the EEA and Switzerland, nationals of those states are therefore always subject to the legislation of one country and pay social contributions in that country only. These principles and rules also apply to Belgians working or living in the United Kingdom, at least until 31/12/2020.
What is the situation after 31/12/2020? For persons who continue an existing situation or who have submitted their application on the basis of the coordination Regulation 883/40 before 31/12/2020, this regulation will continue to apply (laid down in Art. 30.2 of the withdrawal agreement). Please note that as soon as there is a change in the situation, it may affect social security rights.
For new situations, internal Belgian or UK law will apply. In these situations it will no longer be possible to invoke the withdrawal agreement.
Applicable labour law
The question of applicable labour law arises both in the context of a posting (temporary employment) and in the context of a permanent employment of a worker in Belgium by an employer established in the United Kingdom – or vice versa. In such situations, there may be a conflict of law between the labour law applicable in the country where the employer is established (e.g. the United Kingdom) and the labour law applicable in the country where the employee performs his services (e.g. Belgium).
On the other hand, British workers who come to Belgium to work after 31 December 2020 will be treated as third country nationals and will be subject to the rules on the employment of third country nationals, i.e. work permit or single permit.
The self-employed third-country national will need a professional card to be able to work here.
Applicable labour law in the case of posting
Until 31 December 2020, European rules will remain fully applicable in the case of posting.
In the case of the posting of workers from the United Kingdom to Belgium, the Belgian law of 5 March 2002 on labour, wage and employment conditions and compliance therewith continues to apply; in the case of the posting of workers from Belgium to the United Kingdom, the UK applicable labour, wage and employment conditions continue to apply.
The Belgian Posting of Workers Act of 5 March 2002 will continue to apply as from 1 January 2021 in the case of posting from the United Kingdom to Belgium. The Directive 96/71/EC expressly states that companies established in a country which is not a member state must not receive more favourable treatment than companies established in a member state. In the case of posting from Belgium to the United Kingdom, the extent to which it will still be possible to post workers to the United Kingdom after the transitional period will depend on the agreements that will be made in this context between the European Union and the United Kingdom.
Applicable labour law in the case of permanent employment
Until 31 December 2020, the applicable labour law will be determined on the basis of private international law, mainly by the European Regulation 593/2008 “Rome I”.
The general principle of the Rome I Regulation is that the parties are free to choose the labour law applicable to the employment contract (see Article 3 of the Rome I Regulation). However, the parties’ choice of law may not have the result of depriving the employee of the protection afforded to him by the mandatory provisions of the law of the country which, in the absence of choice, would have been applicable to him.
As from 1 January 2021, regarding the permanent employment of workers in the European Union by British employers, the draft withdrawal agreement does not contain any provisions. However, even in the absence of specific provisions on this subject in the withdrawal agreement, the Rome I Regulation will continue to apply within the territory of the European Union, even if the parties to the employment contract have opted for the law of a third country.
Conversely, in the case of permanent employment in the United Kingdom, the withdrawal agreement provides only that the Rome I Regulation will continue to apply to agreements concluded before the end of the transitional period. Regarding employment contracts concluded after the end of the transitional period, the Rome I Regulation will no longer apply in the United Kingdom. In such a case, it will be necessary to determine what working conditions will apply in the United Kingdom under British law.
Until 31 December 2020, there will be no change to the current situation. A valid passport or identity card will suffice, a work permit will not be required.
Being a Belgian national residing in the UK before the end of the transitional period, one will have to apply for a residence permit from the UK authorities in good time. In any case, one will need a valid passport or identity card. The Belgian embassy in London recommends to keep all documents proving how long one has been living in the UK.
It is not yet known what rules will apply if people want to settle in the UK after the transitional period. Negotiations between the EU and the UK are yet to take place.
Similarly, a British national or a relative of a British national who comes to Belgium during the transitional period will continue to be subject to the same rules as before the withdrawal, nothing will change for the time being, British nationals and their family members will be treated in the same way as Union citizens during the transitional period, both for short and long stays.
All British nationals and family members of British nationals who obtained a right of residence in Belgium before the end of the transitional phase are considered beneficiaries of the withdrawal agreement. They will be contacted by the Belgian authorities and asked to apply for their new residence permit with the municipal authority of their place of residence. Even after the transitional period, they will retain their rights of residence as Union citizens for life, with the sole exception of having a new residence card.
Attention : a family member of a British national with a right of residence in Belgium who wants to come to Belgium after 31 December 2020:
In principle, this person is not protected by the withdrawal agreement and this person can no longer invoke the conditions that apply to Union citizens. The existing general rules on family reunification with a third country national can be invoked. These can be found here.
An exception was made for some family members in the withdrawal agreement. It concerns certain family members who either already had a link with a British national with a right of residence in Belgium before the end of the transitional period or children born after that date. For them, the conditions applicable before the end of the transitional phase continue to apply even after the end of the transitional phase.
Sources : Federal Public Services