The Consequences for Employers in Cross-Border Workplace Accidents

March 2025

Within the European Union, it is common for companies to engage employees from businesses in other member states when carrying out work, such as large construction projects, due to their expertise. Under a secondment agreement concluded between companies, the relevant employee is temporarily loaned to the foreign company.

In such an international arrangement, multiple jurisdictions from different member states come into play. This can create uncertainty when the seconded employee suffers an accident while performing his duties at the foreign hiring employer. The question then arises as to which jurisdiction should determine the liability of the lending employer and under which jurisdiction the employee’s damages should be settled. The legal rules of the involved member states can differ significantly. The applicable jurisdiction is therefore crucial in determining whether an employer is liable for an accident and, if so, to what extent he must compensate the employee for damages.

A recent ruling by the Arnhem-Leeuwarden Court of Appeal on January 14, 2025[1], highlights this issue.

Case Background

A Belgian employee, working for a company based in Belgium, suffered an accident in the Netherlands while working for a company there. Legal proceedings regarding the damages resulting from this accident were initiated in both Belgium and the Netherlands. Unlike the Netherlands, Belgium grants employer immunity from liability for workplace accidents, with compensation covered by a mandatory employer-funded workplace accident insurance.

In the Netherlands, employer liability is regulated by Article 7:658 of the Dutch Civil Code (DCC). Under this article, an employer is liable if an employee proves that he suffered damages in the performance of his work. The employer can only escape liability if he proves that he fulfilled his duty of care towards the employee or that the employee acted with willful misconduct or conscious recklessness.

In this case, the Belgian employer sought a declaratory judgment stating that:

1. Belgian law applies to the settlement of the workplace accident, meaning that Article 7:658 DCC does not apply.
2. Any potential claim for damages by the employee against the employer for the workplace accident should be assessed according to the standards of the Belgian Workplace Accident Act.

The Belgian employer's interest lies in the fact that he enjoys immunity from liability under Belgian law.

The district court granted the employer’s claims. However, the Court of Appeal overturned this ruling. The Dutch Supreme Court then annulled the appellate decision and referred the case back to the Arnhem-Leeuwarden Court of Appeal.

Court Ruling

Applicable Law

The Court of Appeal first determined that Belgian law does indeed apply to the employment contract. Looking at the entirety of the employee’s service period, the majority of his working hours took place in Belgium.

Posting Directive

However, the court ruled that this does not exclude the application of Article 7:658 DCC to the legal relationship between the Belgian employer and employee. As a result, the employee can, in principle, claim compensation for damages caused by the accident from his Belgian employer.

During the period the employee worked in the Netherlands, the now-repealed Dutch Act on Terms of Employment for Cross-Border Work (Waga (old)) applied to the legal relationship between the Belgian employer and employee. Waga (old) implemented the EU Posting Directive[2], which aims to coordinate member state legislation to establish a core set of mandatory provisions for minimum protection that must be observed by employers temporarily assigning employees to another member state.

Article 1 of Waga (old) stated that Article 7:658 DCC applies to employees temporarily working in the Netherlands under a non-Dutch employment contract.

The court ruled that Belgium’s employer immunity system must yield to Article 7:658 DCC, meaning that the employee can file a claim against his Belgian employer for damages.

Compensation Systems

Next, the court examined which compensation system should apply to the employee’s damages. Consideration 17 of the Posting Directive stipulates that mandatory minimum protection provisions in the host country should not prevent the application of more favorable employment terms and conditions for employees. This means that if Belgian law offers equal or better protection for the employee, it remains applicable. Consequently, Belgian and Dutch compensation systems must be compared to determine which provides more advantageous coverage for the employee following the workplace accident.

For example, in Belgium, purely aesthetic or moral damages are not compensated, whereas in the Netherlands, such damages are awarded as pain and suffering compensation. Additionally, in the Netherlands, an employer can be held liable for damage resulting from medically non-objectifiable complaints under Article 7:658 DCC if specific conditions are met. In Belgium, such compensation is not possible. On the other hand, the threshold for obtaining compensation under Belgian law based on the Workplace Accidents Act appears to be lower than under Dutch law, as the employee’s burden of proof for proving damage is seemingly less stringent in Belgium.

The court did not make a definitive ruling on which member state’s law offers more favorable protection. Instead, it gave the parties an opportunity to present their views on this matter in a subsequent procedural step.

Conclusion

This ruling demonstrates that an employer and its insurer may be subject to the liability law and compensation system of another member state in the event of an international workplace accident involving a seconded employee. This could result in an employer being held liable under the jurisdiction of the host member state, even if it would not have been liable under the jurisdiction of his own member state. The same applies to the potential scope of compensation. Article 2 of the current Law on Working Conditions for Posted Workers in de European Union regulates, just like Article 1 of Waga (old), that Article 7:658 DCC applies to employees temporarily working in the Netherlands under a non-Dutch employment contract.

Employers should be aware of this before entering into secondment arrangements with foreign companies. They should proactively consult their insurer to ensure appropriate insurance coverage is in place.

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[1] Gerechtshof Arnhem-Leeuwarden, 14 januari 2025, ECLI:NL:GHARL:2025:137.
[2] Directive - 2018/957 - EN - EUR-Lex