In Belgium, all supplementary pension schemes must comply with the Law of 28 April 2003 on Supplementary Pensions (abbreviated as “WAP”). It is generally assumed that the provisions of this Law are mandatory. This means that Belgian supplementary pension schemes cannot deviate from them.
What is now the impact of the WAP on employees seconded to Belgium? A Law of 5 March 2002 stipulates that workers posted to Belgium are subject to almost all mandatory provisions of Belgian employment law. Consequently, in application of this law, the supplementary pension scheme of any seconded worker would have to comply with the provisions of the WAP.
However, Article 108 of the WAP provides that workers who are seconded under the terms of the EC Regulation n° 1408/71 (so-called “inbounds”) are excluded from the scope of the WAP. As a result, supplementary pension schemes applicable to workers seconded in Belgium from an EEA country do not have to abide by the WAP, provided that the secondment rules foreseen in regulation 1408/71 are complied with – i.e. the worker must be in possession of a valid E101 certificate. The EEA is composed of the 27 EU Member States plus Norway, Iceland and Liechtenstein.
Article 108 of the WAP is a transposition of the EC Directive on supplementary pensions(1). This Directive expressly provides that workers who are temporarily seconded to another EEA Member State should continue to be covered by their initial supplementary pension scheme during the period of their secondment. Accordingly, workers who are temporarily seconded from Belgium to an EEA Member State (so-called “outbounds”) will remain affiliated to the supplementary pension scheme of their Belgian employer.
The abovementioned principles continue to have legal effect now that the new EC Regulation n° 883/04 has come into force on 1 May 2010. The new Regulation explicitly stipulates that all references to Regulation n° 1408/71 are to be read as referring to Regulation n° 883/04 as well. Therefore, the reference to Regulation n° 1408/71 in article 108 of the WAP has to be read as referring to Regulation n° 883/04 too.
