Brussels, 3 June 2010
Internal Market: the Commission takes action to enforce the right of self‑employed persons to provide services in Belgium
The European Commission has today decided to bring an action against Belgium before the Court of Justice. The Commission considers that Belgium has failed to fulfil its European obligations by requiring self‑employed service providers from other Member States to make a prior declaration before being able to provide temporary services in Belgium. The Commission sent Belgium a reasoned opinion on 9 October 2009. Since it has not received a satisfactory response from the Belgian authorities, the Commission has decided to refer the matter to the Court of Justice.
What is the aim of the EU rules in question?
As service providers, self‑employed workers have the right to provide services under Article 56 TFEU without having to undergo unjustified or disproportionate formalities. That right has been confirmed repeatedly by the Court of Justice.
In what way is Belgium failing to comply with that rule?
Any self‑employed worker from another Member State who wishes to provide temporary services in Belgium (except exempted cases) must make a prior 'Limosa' declaration. The fact that the Belgian authorities are in principle making the exercise of a fundamental freedom subject to a prior administrative step must be regarded as a restriction on the freedom to provide services within the meaning of the Court's case law. In order to be compatible with Community law, such a restriction must be justified and proportionate according to the consistent rulings of the Court. Such a prior step could be justified and proportionate in some sectors or specific cases, such as cases involving the posting of workers (cases which are not, however, the subject of this procedure) or in the sphere of social security. But the justifications cited by the Belgian authorities regarding self‑employed workers have not convinced the Commission and the measure is, in any case, disproportionate to the objectives being pursued.
This matter does not concern the cases in which the 'Limosa' declaration is required in order to enable the Belgian authorities to check the application, to posted workers, of the working conditions laid down in Directive 96/71/EC of 16 December 1996 concerning the posting of workers in the framework of the provision of services.
What are the negative consequences for EU citizens and/or businesses?
The 'Limosa' declaration is of general scope and affects thousands of service providers in the European Union. It covers in principle (except where exemption is expressly stated) any self‑employed provider of cross‑border services, such as freelance journalists or businesspeople who travel to Belgium to canvass potential customers. It also affects, for example, self‑employed craftspeople or consultants who come to Belgium to provide services under contract (carrying out a study, installing software, etc.).
The 'Limosa' declaration is another formality to complete before travelling to Belgium. It is in addition to the existing formalities concerning, for example, social security or the recognition of professional qualifications which service providers already have to complete before providing their services in Belgium. Foreign service providers receive an acknowledgement of receipt once they have made the declaration. They must present that acknowledgement of receipt to the person to whom they are providing services. In the absence of that acknowledgement of receipt or prior declaration, severe criminal and administrative penalties are provided for which reinforce the deterrent effect of this formality. Infringement of the 'Limosa' obligation may be punished by imprisonment of between 8 days and 1 year and/or a fine of €500 to €2 500, up to a maximum of €125 000.
This formality may also discourage Belgian operators from using service providers from other Member States. Belgian operators are required to check that service providers are in possession of the acknowledgement of receipt and to report to the relevant authorities the particulars of any service provider who is not able to present the acknowledgement of receipt, failing which the Belgian operator concerned is subject to the same penalties in the form of fines and/or imprisonment.
Regarding infringement proceedings
Under Article 258 of the Treaty on the Functioning of the European Union (TFEU), the Commission has the power to institute infringement proceedings against a Member State which is failing to meet its obligations under European Union rules. The proceedings comprise three stages. Initially, if the Commission considers that EU law may have been infringed, it sends the Member State concerned a letter of formal notice with a view to obtaining information; the Member State has two months within which to reply. If the Commission's suspicions concerning a possible infringement of EU law are confirmed, it sends a reasoned opinion asking the Member State to comply with EU law within two months. In the absence of a satisfactory response, the Commission may refer the matter to the Court of Justice in Luxembourg. If a Member State is handed down a judgment by the Court and does not comply with it, the Commission may also ask the Court to impose a fine on the country concerned.
For more information
Freedom to provide services:
Latest information on infringement proceedings instituted against Member States: