Directors with a non-remunerated corporate mandate can now be exempted from the professional card obligation in the Flemish region

Non-EEA nationals practising self-employed activities in Belgium must apply for a professional card, unless they can benefit from a legal exemption. Since 1 January 2022 a new and simplified application procedure has come into force in the Flemish region.^[1] At the same time, the Flemish government has introduced a new exemption: subject to certain requirements being met, non-EEA nationals taking up a corporate mandate are exempted from the professional card obligation. 

What are the requirements to benefit from the professional card exemption?

A non-EEA national who exercises a corporate mandate in the Flemish region will not always benefit from the professional card exemption. The exemption can only be invoked if the following conditions are met:

• The directors’ mandate must be non-remunerated. The mandate’s non-remunerated nature must be confirmed in the company’s by-laws or the act of appointment.
• The director must be in the possession of a valid single permit (“gecombineerde vergunning”) that permits working on a full-time basis in a highly-qualified function or a management function.

In a nutshell, a highly-qualified function requires that the employee is in possession of a Bachelors or Masters^[2] degree issued by a recognised education institute and he or she earns a gross annual salary of at least EUR 45,096^[3] (the 2022 amount, and annually indexed). 

Being employed in a management function means that the employee exercises a managerial function with daily management responsibilities. In addition, the employee must supervise the work of subordinate employees and he/she must be authorised to represent and bind the company. To qualify as a management function the employee must earn a gross annual salary of at least EUR 72,154 (the 2022 amount, and annually indexed).

The exemption can also be invoked by highly-qualified personnel who meet the conditions for obtaining a European Blue Card.

This requirement implies that only individuals taking up a corporate mandate as a secondary occupation are eligible to benefit from the professional card exemption.

• There should be a clear distinction between the work and the activities performed as an employee and the responsibilities as a director.

Especially for individuals exercising a general management function, the distinction between both professional activities will not always be clear-cut.

• The professional card exemption is linked to the validity of the single permit. As of the moment that the non-EEA national no longer possesses a valid single permit (i.e. because the single permit has expired and/or is not being renewed), he/she can no longer benefit from the professional card exemption.

Directors who meet the cumulative conditions above and who execute the non-remunerated corporate mandate in the Flemish region are thus exempt from obtaining a professional card.

What about the Brussels and Walloon regions?

No similar exemption applies in the Brussels and Walloon regions. Non-EEA nationals taking up a corporate mandate in the Brussels or Walloon regions will thus still need to obtain a professional card, even if the corporate mandate is non-remunerated and/or even if the corporate mandate is combined with performing work in an employee capacity.

Conclusion

With the introduction of this new exemption, non-EEA nationals working in the Flemish region need to overcome substantially less administrative hurdles now when considering taking up a corporate mandate, provided certain conditions are met.        

ALTIUS’ employment team is available to assist employers considering employing non-EEA nationals and individuals intending to develop self-employed activities in Belgium, including providing practical advice and step plans for the applicable work permit or professional card requirements, and assisting with the relevant residency formalities. Furthermore, ALTIUS’ employment team can provide further guidance regarding any additional employment-related formalities, registrations and obligations triggered by employing non-EEA nationals.

^[1] Decree of the Flemish Government dated 17 December 2021 executing the Flemish Statute dated 15 October 2021 on the practising of self-employed professional activities by foreign nationals.

^[2] The education must have been for a minimum duration of 3 years or must have resulted in a level 5 education qualification.

^[3] Or EUR 36,076.80 (the 2022 amount, and annually indexed) if the employee has an employment contract with an employer located in Belgium, provided that the employee is younger than 30 or works as a nurse.

Written by

• Emma Van Caenegem

  Counsel