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Coronavirus - What are the impacts in terms of Global Mobility?

30/03/2020

Coronavirus – What are the impacts in terms of Global Mobility ?

 

Last update : April 22, 2020

 

The Member States of the European Union are, one after the other, closing their own borders. One month ago, this sentence would have been the title of a science-fiction book. But today, it is the headline of many newspapers.

Since mid-March 2020, apart a few indomitable countries (such as The Netherlands and Switzerland), countries including Belgium are establishing more or less strict lockdown restrictions to tackle the propagation of the coronavirus, resulting in a considerable increase of workers who are bound to work from home.

In that context, we describe below the main consequences of the imposed homeworking in terms of workers’ mobility.

 

  1. Social security aspects – Updated April 15, 2020

We have recently questioned the NSSO regarding the social security regime applicable to employees (in casu, one EU national and one non-EU national) hired by a Belgian employer before the Covid -19 pandemic and who have started their professional activities after the outbreak of the coronavirus from their home country.

According to the international department of the NSSO, as those workers should have been reported in Belgium, and especially as when the lockdown restrictions will be over, they will move to Belgium and exclusively performed their professional activities in Belgium and will be therefore be subject to the Belgian social security regime, there is no objection for them to be reported under the Belgian social security scheme as from the Belgian employment contract’ start date.

In conclusion, the Belgian NSSO will consider as much as possible the situation created by the Covid-19 pandemic as a fictive situation which will not be taken into consideration. In other words, the applicable scheme will be determined considering a regular employment’ situation.

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Based on the European Regulation 883/2004, a person who normally pursues an activity as an employed person in two or more Member States shall be subject to the legislation of the Member State of residence if he pursues a substantial part of his activity in that Member State[1]. Per « substantial part » of his activity, we understand at least 25 % of his global working activity[2].

 

With the lockdown measures imposed by more and more countries since a few weeks, most of international workers are now pursuing their professional activities from their residence country which can trigger a switch in the social security regime applicable to them.

For this reason, multiple administrations in charge of the social security regime agreed to recognize as exceptional and unpredictable the lockdown restrictions imposed by national governments. In other words, the number of working days performed from their domicile by international workers resulting from measures taken to slow down the spread of the coronavirus will not be taken into account to determine the social security regime applicable to them.

The following countries have already make an official announcement in that sense:

  • Belgium[3],
  • The Netherlands[4],
  • the United Kingdom[5].

The NSSO has also noticed that the below listed countries are informally following the above position:

  • France,
  • Germany,
  • Luxembourg,

In addition, the Belgian National Social Security Organisation (hereafter “NSSO” – RSZ / ONSS) also agreed on an exemption of Limosa declaration for employee who are working from home during the time frame of the Belgian measures to tackle the virus, i.e. as from March 13, 2020 until April 5, 2020[6].

 

What about temporary unemployment situations ? Last update by April 22, 2020

 

The Belgian National Employment Office (hereafter “NEO”) has foreseen the possibility for employers to temporally lay off their employees for whom the continuation of professional activities has been made impossible further to the lockdown restrictions imposed to the population. Employees affected by this measure will be granted the right to receive unemployment allowances.

In an international context, questions are raised by Belgian employers regarding the possibility to temporally lay off their foreign workers who cannot perform their activities in their home country (e.g. a Belgian company employing a French sales employee who due to confinement cannot perform clients visits and prospection missions anymore).

 

France – UPDATED by March 31, 2020

By an ordinance dated March 27, 2020, the French government has decided to grant the benefit of "Partial activity" to foreign employers without a French permanent establishment. Nevertheless, one condition has to be fulfilled: employee(s) concerned has/have to be subject to the French social security. Therefore, foreign employers without a French permanent establishment with workforce who is not subject to French social security do not have access to the "Partial activity" regime [7].

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To claim “Partial activity” (also called “partial unemployment” or “economic unemployment”), a foreign employer must have a French permanent establishment (i.e. Corporate tax obligations in France - so called “Entreprise RFE” does not qualify).  Therefore, employees who are working under a French contract, contributing to the French social security scheme and unemployment insurance for a Belgian employer which does not have a permanent establishment in France, may not at this stage claim the application of “Partial activity”.

Nevertheless, several other solutions exist:

  • teleworking,
  • displacement of paid leave in order to cover the lockdown period of 14 days,
  • daily paid leave in order to take care of children who are unable to go to school[8],
  • and finally, if the employee is infected or in contact with an infected person, illness allowances may be paid by the CPAM.

 

Luxembourg- UPDATED by April 22, 2020

Based on the FAQ updated by April 22, 2020 by ADEM, it is mentioned that “only companies that are legally established in Luxembourg can benefit from short-time working (i.e. temporary unemployment). These companies therefore requires a physical address in Luxembourg. The short-time working allowance is reimbursed only for employees who:

  • are legally employed with a company legally established on the territory of the Grand Duchy of Luxembourg;
  • are normally employed at a place of work situated in the territory of the Grand Duchy of Luxembourg;
  • are insured as employees with Luxembourg’s social security (CCSS).”[9]

 

Considering the above, contact should be taken with the local unemployment administration of the employer’s residence country to check whether or not a bi-lateral arrangement has been set up between the countries involved. Contact has been taken by our services with the NEO, and at this stage, they could not clarify how such situations (for French, Luxemburg and all other international workers) will be solved in the near future.

 

  1. Fiscal aspects - UPDATED by April 15, 2020

Based on a note published dated April 3, 2020, the OECD urged Member States to coordinate themselves “to mitigate the compliance and administrative costs for employees and employers associated with involuntary and temporary change of the place where employment is performed[10] considering the actual exceptional circumstances derived from Covid-19 pandemic.

Given that the Covid-19 pandemic is a situation of force majeure, the governments of Germany and the Netherlands concluded a mutual agreement regarding the interpretation of situation where due to Covid-19 pandemic cross border worker are working from home or spend days, that would normally be working days, without working at home[11].

Regarding the days spent working from home, it has been agreed to considered those days and the wages derived from them as days of work spent in the Contracting State where the cross border would have exercised the employment without the lockdown restrictions.

However, considering the wording used by the Dutch and German governments, it is seems that the option is offer to cross border workers to use or not this fiction.

 

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From an income tax perspective, individuals are taxable on their worldwide in their residence country. The pursuing of professional activities in two or more Member State may lead to a double taxation, i.e. within the residence country and within the country where the activity itself is performed. To avoid such a double taxation, most of countries have concluded bi-lateral Double Tax Treaty (hereafter “DTT”) which are allocating the power of taxation to one or the other Member State based on the physical presence of the dependant worker.

In order to provide an answer to the many questions raised by the lockdown measures and the resulting homeworking, a few countries have decided in the last days to conclude additional bi-lateral agreements with their neighbours countries.

Belgium - France

Based on the joint communication from the Finance Ministers, Belgium set up an agreement with France announcing that as from March 14, 2020 and “until further notice, the days on which frontier workers are required to stay at home do not affect (the) specific tax regime from which the frontier workers are benefiting[12]. As a consequence that activities performed from their domicile by frontier workers will be taken into account for the calculation of the “30 days” rule as both Belgium and France recognised as “force majeure situation” the lockdown restrictions that has been established each side of the border.

Belgium - Luxembourg

The DTT concluded between Belgium and Luxembourg authorise frontier workers to perform their professional activities outside of the Member State where the activity is regularly performed for a maximum of 24 days while remaining taxed in that Member State. To avoid a switch of taxation country due to homeworking further to the lockdown restrictions, Belgian and Luxembourg governments “decided that as from March 14, 2020 the presence of a worker at his domicile, notably to perform homeworking, will not enter into consideration for the calculation of the 24 days’ delay. This measure is applicable until further notice[13].

 

Unfortunately, it has to be noted that the above communications only concern frontier workers and do not aim the international workers who are not falling into this specific category.

In absence of a bi-lateral agreement over international workers who are temporarily working from home, it seems more reasonable at this stage to follow the principles stated within the DTT.

Based on those, the physical presence criteria must prevail to determine the taxation country. Therefore, the working days performed from their domicile by international workers due to lockdown restrictions should be considered as taxable in the residence country.

From compliance point of view, as no one can predict how long the lockdown measures will be applied, this situation may lead to an amendment of their payroll overview in order to anticipate questions which may be raised by the national tax authorities further to the submission of the annual income tax return while claiming an exemption for foreign income in their residence country. In this framework, we are also encouraging international workers who are still crossing the border to keep a strict track of their physical presence abroad.

 

  1. Administrative recommendation

 

Next to lockdown restrictions, many countries have put in place frontier check point as a result to the closing of their own border. Therefore, workers who may not be authorised to perform their work from their domicile will have to justify the job related nature of their ride.

In this respect, a certificate has been issued by the Belgian authorities to enable foreign employers to demonstrate the existing working relationship with their Belgian employee(s)[14]. This certificate once completed remains valid for the duration of the crisis.

At this stage, France who is intensifying controls reserves the right to refuse the access to his territory to any individual who may fail to justify his move.

 

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Should your international workforce be performing their current professional activities from home and you wish to receive a personalised advise regarding the measure to put in place, do not hesitate to contact our international department at the following email address: international.mobility@securex.eu

 

 

 

 

 

Written by Jessica Boucher & Laetitia Teugels (Senior) HR consultant within the International Employment Services department  -  Securex Consult SA/NV

 

[1] Article 13, EC Regulation n°883/2004

[2] Article 14, §8, EC Regulation n°987/2009

[3] Communication by NSSO (ONSS / RSZ) and NISSE (INASTI / RSZV) on March 18, 2020

[4] Communication by SVB on March 20, 2020 (https://www.svb.nl/nl/bbz-bdz/nieuws/sociale-verzekering-verandert-niet); Communication by SVB on March 23, 2020 (https://pers.svb.nl/coronavirus-en-wonen-of-werken-over-de-grens-de-sociale-verzekering-verandert-niet/#.XnnlbuDNK4M.linkedin)

[5] Communication by HMRC on March 19, 2020 (https://www.gov.uk/hmrc-internal-manuals/residence-domicile-and-remittance-basis/rdrm11005)

[6] This information is at this stage shared on LinkedIn by a civil worker at the international department within the NSSO.

[7] https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000041762506&categorieLien=id

[8] to be requested via https://declare.ameli.fr/

[9] https://adem.public.lu/en/support/faq/faq-chomage-partiel.html

[10] OECD Secretariat Analysis of Tax Treaties and the Impact of the COVID-19 Crisis, point 27.

[11] Mutual agreement between the Competent Authorities of Germany and the Netherlands according to the first sentence of paragraph 3 of article 25 of the Convention between the Federal Republic of Germany and the Kingdom of the Netherlands for the avoidance of double taxation signed on 12th of April 2012 as amended by protocol signed on 11th of January 2016, staatscourant 2020, n°21381.

[12] https://lentreprise.lexpress.fr/actualites/1/actualites/covid-19-accord-sur-l-imposition-des-frontaliers-avec-quatre-pays-voisins_2121424.html (Free translation).

[13] https://gouvernement.lu/fr/actualites/toutes_actualites/communiques/2020/03-mars/16-lux-be-teletravail.html (Free translation).

[14] Certificate can be download on the website of the Federal Public Service Employment, Labour and Social Dialogue (https://emploi.belgique.be/fr/actualites/certificat-prouvant-la-necessite-de-traverser-la-frontiere-pour-le-travail); https://centredecrise.be/fr/news/gestion-de-crise/travailleurs-transfrontaliers-dans-des-secteurs-vitaux-et-des-professions

Securex Sociaal Secretariaat - Legal 30-03-2020