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Claeys & Engels

BOULEVARD DU SOUVERAIN 280, 1160 BRUSSELS, BELGIUM
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Antwerp, Brussels, Ghent, Hasselt, Kortrijk, Liege

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Applicable employment law in case of international employment -

October 2013

Court of Justice: place where the employee habitually carries out his work is not decisive

The place where the employee habitually carries out his work must be set aside if the agreement is more closely connected with another country. This principle even applies if the employee was employed for a (very) lengthy period and without interruption in the country of the place where he habitually caries out his work.

In the event of an international employment, parties are free to determine which law will govern their employment relationship. This choice of law however may not deprive the employee of the protection of the so-called objective applicable law.

On 12 September 2013 the Court of Justice rendered its judgment Schlecker (C-64/12), in which it clarifies that to determine the objective applicable law, priority should be given to the criterion ‘most closely connected' instead of to the criterion place of habitual employment. If an employee habitually works in country A, but the employment contract is more closely connected with country B, the law of country B should be considered as the ‘objective applicable law'.

The fact that an employee was employed for a lengthy period and without interruption (here: more than 11 years) in a certain country may not be considered as a more important criterion and does not mean that there is no closer connection with another country.

In this respect, the Court of Justice refers to the applicable social security and the applicable tax scheme. In addition, the parameters relating to salary determination (for example: pay scales) and other working conditions can also be taken into account.


> Action point
In the event of international employment, it must be checked to which country the employment relationship is the most closely connected.

Legal Developments by:
Claeys & Engels

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    The Act of 11 December 2016 transposed the Enforcement Directive (2014/67/EC) into Belgian law. This act made some modifications to the Act of 5 March 2002 concerning the working, remuneration and employment conditions in case of posting of workers in Belgium and the compliance with it. One of the novelties was the obligation for a foreign employer to appoint a  liaison officer (physical person) in Belgium to act as a contact person with the Belgian  inspectorate. The Royal Decree of 14 September 2017 that was published yesterday in the Belgian State Gazette states that the liaison officer must be appointed through the LIMOSA declaration. The Royal Decree enters into force on 1 October 2017. 
    - Claeys & Engels law firm

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