The RSZ (National Social Security Office) law in principle only applies to employees and employers. Self-employed persons fall outside the scope of the RSZ legislation, at least insofar as they are not in reality false self-employed workers.
The RSZ law provides that the King may extend its application to other persons (Article 2, §1, 1° RSZ law).
Extension for daily managers in the non-profit sector
The King has made use of this possibility of extension. In Article 3, 1° of the implementing decree to the RSZ law, the scope is extended to persons who meet the following conditions:
- in the capacity of mandatary
- for remuneration other than board and lodging
- devote their main activity to the daily management or daily administration of associations and organizations that do not carry out industrial or commercial activities and that do not aim to provide their members with a material benefit, as well as to such associations and organizations
More specifically, this refers to:
- mutual insurance societies, unions and national unions that are recognized and authorized to provide benefits of voluntary and compulsory insurance in case of illness or disability
- organizations of employers, employees and self-employed persons
- cooperative companies that meet the conditions laid down in Article 5 of the Act of 20 July 1955 establishing a National Council for Cooperation and its implementing decrees
- non-profit associations
Royal ‘legal fiction’
Whether the mandataries of these associations and organizations are subordinate and are correctly considered self-employed in their contractual relationship is not relevant.
Based on Article 2 of the RSZ law and Article 3 of the implementing decree, persons who carry out daily management or daily administration are automatically subject to the employee scheme.
This automatic subjection does not change the contractual relationship and applies only with regard to RSZ regulations.
The management company as a ‘shield’
Many directors of a non-profit association, mutual insurance society, employee organization, etc. are not directly appointed as a natural person as mandatary of the association or organization for which they work.
Through a management company, it is generally avoided that RSZ contributions are due for these persons. In this way, there is no direct contractual relationship between the person who effectively exercises management and the association or organization.
The Brussels Labour Court saw no issue in this. It ruled that the RSZ law can only apply when it appears that the contractual structure of employment as a self-employed person via a company amounts to circumvention of the law.
The ‘shield’ broken
According to the Court of Cassation, this is incorrect.
A management company does not prevent the natural person who effectively exercises daily management or daily administration as their main activity from falling under the extension of the implementing decree of the RSZ law.
It is not required that there is a direct contractual relationship between the natural person and the association or organization.
Even without proof of circumvention of the law, these persons are therefore subject to RSZ legislation, regardless of the use of a management company.
Key lessons from the Court of Cassation judgment of 19 May 2025
The Court of Cassation clarifies that:
- for this extension of the RSZ legislation, it is possible to look through a corporate structure
- this can be done without first having to demonstrate that there is circumvention of the law or a sham structure
- persons who, via a management company, carry out daily management or daily administration for non-commercial organizations may still fall under the employee scheme of the RSZ
- no employment contract, relationship of authority or other direct contractual relationship is required for this
Increased risk in the non-profit sector
The judgment of the Court of Cassation undeniably leads to an increased risk in management structures in the non-profit sector. Exercising activities through a management company no longer provides a sufficient shield.
What now?
Non-profit organizations would be well advised to review their management structures and assess whether persons working via a management company devote their main activity to daily management or daily administration.
Critically review governance roles and in particular evaluate functions such as directors, managing directors and CEOs.
Assuming that a management company provides protection against the application of this legal fiction is no longer tenable.
