Introduction

An employee living in Belgium and working in The Netherlands who becomes unemployed must apply for unemployment benefits from the Belgian RVA (Rijksdienst voor Arbeidsvoorziening). This stems from the so-called "state of residence rule".

Hence, for the purposes of Belgian unemployment regulations, cross-border workers are treated the same as unemployed people who have worked in Belgium.

Right to Belgian unemployment benefits?

The first question that arises is whether, after concluding a settlement agreement (vaststellingsovereenkomst or VSO) under Dutch law, a Belgian-Dutch cross-border worker is also entitled to receive unemployment benefits in Belgium.

Based on a 1991 Belgian Royal Decree, the unemployed person - in order to receive unemployment benefits in Belgium - must be without work and without pay, due to circumstances "independent of his will".

In principle, a termination of the employment contract by mutual consent does not trigger the award of Belgian unemployment benefits. After all, the work abandonment in that case is not involuntary.

However, the Belgian RVA states on its website that a dismissal by mutual consent, concerning a Dutch employment contract, is not considered a voluntary work abandonment, insofar as the Dutch UWV holds the same opinion. In other words, the Belgian RVA basically follows the position of the Dutch UWV.

If the UWV accepts that the unemployment of the employee concerned is involuntary, then this employee can also claim unemployment benefits in Belgium (provided he/she also meets all other eligibility requirements).

The position of the Dutch UWV can be demonstrated vis-à-vis the RVA by attaching a UWV certificate to the Belgian application.

It is important that the UWV attestation clearly states that the employer took the initiative to terminate the employment contract and that the employee is not to blame. The attestation should also state which period the termination payment is supposed to cover.

What about compensation/payments at the end of employment?

The second question is: what about the amount and duration of benefits? In general terms, Belgian unemployment benefits are lower than unemployment benefits in the Netherlands.

Furthermore, an important difference is that a payment of holiday days and holiday pay at the end of the employment is considered 'wage' and is attributed by the Belgian benefit agency to a certain period (number of weeks or months). In other words, the employee is considered not to suffer any loss of salary during that period and therefore has to 'use up' holidays and holiday pay before the unemployment benefit starts!

What about the transitional allowance (transitievergoeding) received by the employee living in Belgium? In principle, the transitional allowance is not considered as salary by the RVA and payment of this amount does not lead to suspension (read: a later effective date) of the Belgian benefit.

However, please note that the policy on this topic may differ from one RVA to another and it may therefore be the case that a transitievergoeding is still regarded as 'wage' in certain cases.

So these are important differences from Dutch unemployment law.

Furthermore, there are also important differences with regard to the end date, as there is a different statutory retirement age in the Netherlands than in Belgium, and there are also differences with regard to the amount of the benefit. Also, for cross-border workers who started working in a neighbouring country such as the Netherlands before 1 January 2015, Belgium has a Belgian supplement to the Dutch old-age pension. Through this supplement, the Belgian government guarantees cross-border workers who worked in the Netherlands a pension amount as if they had carried out activities in Belgium.

Tips for employers

Because employers have a duty of care towards their employees, even if they conclude a settlement agreement with an employee (i.e. termination by mutual consent), it is good to know that (partly) different rules apply in the case of cross-border workers.

We therefore recommend employers to actively inform their employees on this topic or to advise them to contact a lawyer specialising in cross-border employment. This is to avoid an employee stating afterwards that he or she was not aware of (for instance) a later right to benefit or lower unemployment benefits than in the Netherlands.

Would you like more information on this topic? Feel free to call or email us! 043-365 20 88 or info@spee-advocaten.nl.