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22 DECEMBER 2016 - An Act to establish a bridge right for self-employed persons (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
CHAPTER 1^er. - Introductory provisions
Article 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. For the purposes of this Act, it shall be understood by:
1° "Royal Decree No. 38": Royal Decree No. 38 of 27 July 1967 organizing the social status of independent workers;
2° "the independent worker": the independent worker referred to in Article 3 of Royal Decree No. 38;
3° The Warrantor: the Warrantor referred to in Article 6 of Royal Decree No. 38, who is not a helping spouse;
4° "the assisting spouse": the assisting spouse referred to in Article 7bis of Royal Decree No. 38;
5° "the applicant": the self-employed person, the caregiver or the assisting spouse who makes an application to obtain the bridge right referred to in this Act;
6° "the beneficiary": the self-employed person, the caregiver or the helping spouse who is entitled to the bridge right referred to in this Act;
7° "the social insurance fund": the social insurance fund for self-employed workers referred to in Article 20 § 1^er and 3 of Royal Decree No. 38;
8° "the National Institute": the National Institute of Social Insurance for Independent Workers referred to in Article 21 of Royal Decree No. 38;
9° "financial benefit": the benefit awarded under this Act;
10° "social rights": rights granted under this Act.
Art. 3. This Act establishes a bridge right which consists of:
1° a financial benefit and
2° the maintenance of social rights in respect of compulsory health care insurance and allowances.
CHAPTER 2. - Application field
Art. 4. This Act applies:
1° to the bankrupt self-employed, and to the managers, administrators and active associates of a business corporation declared bankrupt;
2° to self-employed workers, caregivers and helping spouses who have obtained from the judge the approval of an amicable settlement plan as part of a collective debt settlement, to whom a judicial settlement plan has been imposed or who have obtained an adaptation or revision of the settlement, within the meaning of the law of July 5, 1998 on the collective debt settlement and the possibility of a strike wind at the discretion of the immovable property seized, in a period of
3° to self-employed persons, caregivers and helping spouses who, for reasons beyond their control, are forced to stop any independent activity;
4° to self-employed workers, caregivers and helping spouses who are in economic difficulties and who officially cease independent activities.
CHAPTER 3. - The conditions
Art. 5. § 1^er. To benefit from the bridge right referred to in section 3, the self-employed, caregivers and caregivers referred to in section 4 must meet the following cumulative conditions:
1° prove their subjugation in the context of Royal Decree No. 38 in the four quarters immediately preceding the first day of the quarter following the quarter in which the act occurs;
2° for the period referred to in 1°, be liable for contributions referred to in articles 12, § 1^er12, § 1ter or 13bis, § 2, 1° or 2°, of Royal Decree No. 38;
3° having actually paid contributions referred to in 2° for at least four quarters, for the period of sixteen quarters preceding the first day of the quarter following the quarter in which the fact occurs;
4° do not exercise professional activity from the first day following the day on which the fact occurs;
5° shall not be entitled to a substitute income from the first day following the day on which the act occurs;
6° having in Belgium their main residence, within the meaning of Article 3, paragraph 1^er, 5°, of the Act of 8 August 1983 organizing a National Register of Physical Persons.
§ 2. By "fee", referred to in paragraph 1^er, we hear:
1° the declarative judgment of bankruptcy in the cases referred to in Article 4, 1°;
2° the cessation of independent activity in the cases referred to in Article 4, 2° and 4°;
3° the beginning of the interruption of independent activity in the cases referred to in Article 4, 3°.
Art. 6. Self-employed, caregivers and helping spouses can only benefit from the right to pass if they:
1° shall not be convicted on the basis of articles 489, 489bis and 489ter of the Criminal Code in the cases referred to in article 4, 1°;
2° did not clearly organize their insolvency within the meaning of the aforementioned law of 5 July 1998, in the cases referred to in Article 4, 2°;
3° did not obtain the right to pass through fraudulent manoeuvres or false or knowingly incomplete statements in the cases referred to in Article 4, 3° and 4°.
CHAPTER 4. - The period of granting
Art. 7. § 1^er. The period of grant of the financial benefit begins on the first day of the month following the month in which the act referred to in Article 5, § 2, occurs.
§ 2. The period of grant of social rights begins on the first day of the quarter following the quarter in which the act referred to in Article 5, § 2, occurs.
§ 3. Self-employed, caregivers and helping spouses can benefit from the bridge right referred to in Article 3 several times, without its total duration during the entire professional career being able to exceed:
1° 12 months in respect of financial performance and
2° four quarters with regard to social rights.
However, the maximum length of time is reduced for months and quarters that have already been benefited by the independent, caregiver or helping spouse since 1^er July 1997 pursuant to the Royal Decree of 18 November 1996 establishing a bridge right in favour of independent workers and its enforcement orders, with the exception of Article 2bis of the aforementioned Royal Decree and the enforcement orders of that Article.
CHAPTER 5. - Common provisions
Section 1^re. - Application procedure
Art. 8. § 1^er. Self-employed, caregivers and helping spouses must apply to the social insurance fund to which they were ultimately affiliated.
Under penalty of forclusion, the application must be filed no later than the second quarter following the quarter in which the act referred to in Article 5, § 2, occurs.
§ 2. The application must be submitted by registered letter, by filing an on-site request against acknowledgement of receipt or, if possible, by electronic means, under the terms and conditions determined by the Act of 24 February 2003 concerning the modernization of social security management and concerning electronic communication between companies and the federal authority.
The Social Insurance Fund registers each application in the above-mentioned manner in the computer network of social status of independent workers, which is managed by the National Institute.
When the application is filed by registered letter to the position, the date of the post stamp is as the date on which the application is filed.
When the application is filed by the filing of a request, the Social Insurance Fund shall immediately record the application and give the applicant an acknowledgement of receipt in which the registration date is mentioned. The registration date is as the date on which the application is filed.
When the application is filed electronically, the date of e-mail is the date on which the application is filed.
§ 3. The Social Insurance Fund immediately invites the applicant to complete an information form, sign it and return it within 30 days.
Section 2. - The decision
Art. 9. The Social Insurance Fund shall verify whether the conditions of this Act and enforcement orders are met.
The Social Insurance Fund shall notify the applicant by registered letter of the decision. If the application is rejected, the grounds and the possibilities of appeal before the Labour Court are mentioned.
The Social Insurance Fund records the decision in the computer network of the social status of independent workers, which is managed by the National Institute.
As soon as the Social Insurance Fund has made a decision, it shall, if necessary, make the payment of the financial benefit.
Section 3. - The monthly amount of the financial benefit
Art. 10. § 1^er. The monthly amount of the financial benefit is equal to the monthly amount of the minimum pension of an independent worker who meets the requirements of Article 9, § 1^erParagraph 1^er, 2°, of Royal Decree No. 72 of 10 November 1967 relating to the pension and survival of independent workers, referred to in Title IIbis of Book III of the Act of 15 May 1984 on measures of harmonization in pension plans.
However, the beneficiary may claim the higher monthly minimum pension amount of an independent worker who meets the requirements of Article 9, § 1^erParagraph 1^er, 1°, of the aforementioned Royal Decree No. 72, referred to in Title IIbis of Book III of the aforementioned Law of May 15, 1984, provided that it has the quality of "property holder" within the meaning of Article 225 of the Royal Decree of July 3, 1996 enforcing the law on compulsory health care and compensation insurance, coordinated on July 14, 1994.
The quality of "proprietary with family charge" is demonstrated using a certificate from the insurer. As long as the social insurance fund does not have the necessary certification, it can only be claimed at the monthly minimum pension amount of an independent worker in accordance with Article 9, § 1^erParagraph 1^er, 2°, of the aforementioned Royal Decree No. 72. When on the basis of the required certification, it turns out that the beneficiary must be considered as a "family holder", the social insurance fund must proceed with the necessary regularization.
§ 2. When, in the course of the period of granting the right to pass, the beneficiary obtains the quality of "proprietor with family charge" within the meaning of paragraph 1^er or ceases to have this quality, the change to the monthly amount is applied from the month following this event.
Section 4. - Amendments
Art. 11. § 1^er. As soon as the social insurance fund is aware of any element that hinders the benefit of the passable right referred to in section 3, the social insurance fund shall, by registered letter, notify a new reasoned decision. The Social Insurance Fund registers each new decision in the computer network of social status of independent workers, which is managed by the National Institute.
§ 2. Recipients are obliged to communicate to the social insurance fund any event that may have an impact on financial benefit and social rights within fifteen calendar days.
§ 3. Each amendment under the conditions referred to in Article 5 shall have effect:
1° for the financial benefit referred to in section 3, 1°, on the first day of the month following the month of the amendment;
2° for social rights referred to in Article 3, 2°, the first day of the quarter following the quarter of the amendment.
§ 4. The financial benefit is suspended throughout the month in which a work activity is carried out or the month in which it may be claimed to be a substitute income.
Section 5. - Recovery
Art. 12. The social insurance fund must recover the undue, if necessary by court. The amounts recovered are transmitted to the National Institute.
In addition, where the beneficiary fails to comply with section 6, or knowingly has not communicated to his social insurance fund any event that may have an impact on the financial benefit and social rights in accordance with section 11, § 2, the financial benefit of which he or she has benefited is fully recovered by the social insurance fund that has paid him this financial benefit.
Art. 13. The National Institute can totally or partially waive the recovery of the unduly paid financial benefit.
Such a waiver is only possible:
1° if the debtor is in a state of need or in a situation adjacent to the state of need;
2° where the size of the amount to be recovered does not justify costs being exposed;
3° when the recovery results from the rectification of an error committed by the competent social insurance fund or another social security institution.
Art. 14. When, as a result of the negligence of a social insurance fund, the financial benefit referred to in section 3, 1°, was unduly paid and the repetition of the undue is impossible, the social insurance fund shall be held liable by a decision of the Minister having the social status of the independent workers in his or her duties, the amounts in question being charged with the proceeds of the contributions to cover the administrative expenses of the social workers concerned.
Section 6. - Prescription
Art. 15. Without prejudice to the provisions of Article 8, § 1^er, paragraph 2, the action in payment of the financial benefit referred to in section 3, 1°, is prescribed by three years.
The three-year period takes place on the first day of the quarter following the quarter in which the act referred to in section 5, § 2, occurs.
In addition to the causes mentioned in the Civil Code, the prescription is interrupted by a request for payment filed by registered letter with the competent social insurance fund. The interruption is valid for three years and can be renewed.
In no case shall the competent social insurance fund give up the benefit of the limitation set out in this article.
Art. 16. The repetition of the financial benefit referred to in section 3, 1°, paid unduly, is prescribed by three years from the date the payment was made.
In addition to the causes mentioned in the Civil Code, the prescription is interrupted by the repetition of undue payments notified to the debtor by registered letter.
The limitation period shall be increased to five years if the unduly paid financial benefit has been obtained as a result of fraudulent manoeuvres or false or knowingly incomplete declarations, or if the beneficiary has not complied with the undertaking set out in Article 11, § 2.
Section 7. - Delegation provision
Art. 17. The King may, by order deliberately in the Council of Ministers, determine the following terms:
1° situations that may be taken into consideration under Article 4, 3° and 4°;
2° how evidence of a situation is provided under Article 4, 3° and 4°;
3° the elements that must be checked by the social insurance fund under Article 4, 3° and 4°;
4° the time at which the interruption of the independent activity is expected to begin, in the cases referred to in Article 4, 3°;
5° without prejudice to the application of Article 5, § 1^er, and Article 7, § 3, the linkage of the duration of the right to the period during which the independent worker, the caregiver or the helping spouse constituted pension rights within the social status of the self-employed;
6° in derogation from Article 10, § 1^erthat a lesser amount of financial benefit will be awarded to assistive spouses;
7° the conditions for derogating from Article 5, § 1^er4°, and Article 11, § 4.
CHAPTER 6. - Amendments
Art. 18. Article 1^er, paragraph 2, 4°, of Royal Decree No. 38 of 27 July 1967 organizing the social status of independent workers, inserted by the Royal Decree of 18 November 1996, the words "of social insurance in case of bankruptcy" are replaced by the words "of the right to pass".
Art. 19. In Article 15, § 3, of the same decree, as amended by the law of January 16, 2013, the words "or who is forced to cease his activity, within the meaning of Article 2, § 3, of the royal decree of November 18, 1996 establishing social insurance for independent workers in the event of bankruptcy, of situations assimilated or of forced cessation" are replaced by the words "or who is forced to interrupt his activity,
Art. 20. Article 18, § 3bis, of the same order, inserted by the Royal Decree of 18 November 1996 and amended by law 16 January 2013, is replaced by the following:
" § 3bis. The bridge law regime is regulated by the Act of 22 December 2016 establishing a bridge right for self-employed persons. ".
Art. 21. Article 32, paragraph 1^er, 6° ter, of the Compulsory Health Care Insurance Act and Coordinated Allowance on July 14, 1994, as amended by the Act of July 17, 2015, is replaced by the following:
"6° ter. self-employed persons benefiting from the maintenance of social rights in the context of passover law, referred to in Article 3, 2°, of the Act of 22 December 2016 establishing a right to pass in favour of independent workers for up to four quarters.
This four-quarters period takes place, with respect to self-employed, assisted or assisted spouses referred to in section 4 of the above-mentioned Act, on the first day of the quarter following the quarter in which the act referred to in section 5, paragraph 2, of the said Act occurs;".
Art. 22. In Article 6, § 2, of the Royal Decree of 18 November 1996 concerning the introduction of comprehensive financial management in the social status of independent workers, pursuant to Chapter I of Title VI of the Law of 26 July 1996 on the Modernization of Social Security and the Sustainability of the Legal Pension Plans, last amended by the Programme Law of 22 December 2008, the following amendments are made:
1° (d) is replaced by the following:
"(d) the right to pass;";
2° (f) is repealed.
CHAPTER 7. - Abrogatory, transitional and effective provisions
Art. 23. Are repealed:
1° the Royal Decree of 18 November 1996 establishing a bridge right for self-employed persons, as amended by the Acts of 22 February 1998, 24 January 2002, 27 December 2004, 27 April 2007, 24 July 2008, 19 June 2009, 19 May 2010, 16 January 2013 and 16 December 2015;
2° the Royal Decree of 6 July 1997 implementing the Royal Decree of 18 November 1996 establishing social insurance for self-employed persons in the event of bankruptcy, similar situations or forced cessation, as amended by the Royal Decree of 13 March 2013;
3° the Royal Decree of 14 January 1999 implementing Article 2, § 2, of the Royal Decree of 18 November 1996 establishing social insurance for independent workers in the event of bankruptcy, situations assimilated or forced cessation, as amended by the Royal Decrees of 7 September 2003, 26 April 2007 and 13 March 2013;
4th the Royal Decree of 13 March 2013 implementing Article 2, § 3, of the Royal Decree of 18 November 1996 establishing social insurance for self-employed persons in the event of bankruptcy, situations assimilated or forced cessation and amending the Royal Decree of 19 December 1967 establishing general regulation in the execution of Royal Decree No. 38 of 27 July 1967 organizing the social status of independent workers;
5° the ministerial decree of 23 July 1997 determining the model of an information form for obtaining social insurance in the event of bankruptcy, taken in execution of the royal decree of 6 July 1997 implementing the royal decree of 18 November 1996 establishing social insurance for independent workers in the event of bankruptcy and similar persons, pursuant to articles 29 and 49 of the law of 26 July 1996 on the modernization of the security
6° the ministerial decree of 7 April 1999 determining the model of an information form for obtaining social insurance in the event of bankruptcy, taken in execution of the royal decree of 6 July 1997 carrying out the royal decree of 18 November 1996 establishing social insurance for self-employed persons in the event of bankruptcy and similar persons, pursuant to articles 29 and 49 of the law of 26 July 1996 on the modernization of social security
Art. 24. § 1^er. Orders referred to in section 23, continue to apply to all terminations referred to in section 1^erbis of the Order of November 18, 1996 establishing a bridge right for independent workers, which took place before the date of the coming into force of this Act.
§ 2. This Act applies to all facts referred to in Article 5, § 2, of this Act, which take place from the date of its entry into force.
Art. 25. This Act comes into force on 1^er January 2017.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 22 December 2016.
PHILIPPE
By the King:
The Minister of Social Affairs,
Mevr. Mr. DE BLOCK
Minister of Independents,
W. BORSUS
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
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Full report : 15 December 2016