Constitutional review of bridging right for self-employed during Corona pandemic

During the Corona pandemic, the federal government worked out a bridging entitlement for self-employed workers. This was to ensure that self-employed people who had to stop their activities due to the pandemic received compensation. Self-employed persons "with child burden" received an additional allowance. Until there, no problem at all.

A problem did arise with the definition of the criterion used to determine whether or not a self-employed person had dependent children. Indeed, only whether or not the children were registered in the applicant's health insurance fund was taken into account when assessing the child burden. Suppose the woman is self-employed, she and her husband have two children, but the children are registered with the husband's health insurance fund. In that case, the government held that the applicant was not entitled to an increased allowance. If the situation is identical, but the children are not registered with the father but with the mother, the support was justified. 

A lot of litigation is now ongoing over this issue as many self-employed people originally received this increased allowance and now have to pay it back after being audited by the government.

The Labour Court of Kortrijk recently put a preliminary question to the Constitutional Court, on 9 October 2023, to know whether this regulation complies with the principle of equality. The legislator can indeed make a distinction, but only on the basis of a pertinent criterion. That is, a criterion that can help achieve the law's objective. A criterion that says nothing about the effective "child burden" (such as enrolment in the health insurance fund) is not, in our view, a pertinent criterion. 

The problem is that many self-employed people have already paid back. Some have not yet done so. Some can still appeal, others cannot. The deadline for an appeal is three months after receiving the demand for repayment (or after refusing to waive it). Of course, if the Constitutional Court were to recognise (which we hope) that the principle of equality has been violated, the legislature can still issue one new correct regulation. But that is far from certain. So those who are still within the appeal period should best file a petition.

The measure was a good one and helped many self-employed people. But the criterion used is still highly questionable. Especially since the Constitutional Court has already warned the government in 2019. 

A forewarned man/woman...