It’s all so abstract …
In 2013, a new joint and several liability scheme was introduced for cases of contracting out, subcontracting, and illegal employment. Since then, the law can impose criminal sanctions on companies if they hire non-EU nationals in the context of contracting out and subcontracting. General contractors can exclude this liability by obtaining a written statement from their direct contractor in which the latter declares that it will not hire any illegal aliens from non-EU countries.
The Flemish Government made these provisions on liability even stricter. In October 2023, it adopted a draft decree that amends the Act of 30 April 1999 on the hiring of foreign workers, which also aims at non-EU nationals who are self-employed. Moreover, the decree of 27 October 2023 introduces a duty of care on top of the existing obligations that must be imposed on contractors who engage a direct contractor that hires non-EU nationals (and those who are not citizens of the EEA or Switzerland either).
The exact extent of this broadened scope and the date when it becomes effective has yet to be set by the Flemish Government. On 26 April 2024, the draft decree was approved definitively. The legislative text was published in the Belgian State Gazette on 4 June 2024.
Give me everything
Besides the direct contractor’s written statement in which it confirms that it does not or will not hire any illegal non-EU aliens, an appropriate duty of care is imposed on the general contractor when it appoints a direct contractor. The purpose of this is to prevent the direct contractor from hiring any illegal non-EU aliens (as employees or self-employed individuals). To fulfill this duty of care, the following information or documents must be sought from the direct contractor:
- identification- and contact information of the direct contractor;
- personal data, residential status, and employment information of the foreign workers and self-employed individuals whom the direct contractor uses.
If the direct contractor does not supply the requisite information, the contractor must insist on having them and request for them. If the direct contractor does not fulfill this request, the labour law inspectors must be informed about it immediately.
Obstacles to ending illegal employment
On 26 April 2024, the Flemish Government confirmed which specific documents must be provided. The types of documents depend on the labour migration law context in question. If it concerns the providing of intra-EEC or intra-EU services, then it’s about providing the following documents:
- Valid passport or a similar travel document for all non-EU residents who are hired by the direct contractor or who is instructed by the direct contractor and performs business activities as a self-employed individual. If the direct contractor is a natural person who is non-EU country resident, then he or she must also provide proof of his or her valid passport or similar travel document.
- Proof of the right or permission to stay longer than three months in the member state of the EEA or Switzerland where the abovementioned non-EU residents reside.
- The L1 form (if applicable).
- Proof of the document that is issued by the foreign institution and that declares that the social security legislation of that country remains applicable during the employment of the individual concerned on Belgian territory. If this document has not been issued by the foreign institution by the time work begins, the direct contractor may produce a receipt in which the institution acknowledges the request for such document. This will suffice.
If the direct contractor hires non-EU nationals who must have a work permit in order to work, or if it hires a self-employed individual from a non-EU country who must have a “professional card,” then it must produce the following information:
- Proof of a valid passport or similar travel document, as described above.
- Proof of lawful residence.
- Proof of a valid Belgian work permit or professional card that the said worker from a non-EU country holds.
- If appropriate, proof of immediate declaration of employment concerning the worker who is a non-EU national (“DIMONA” (Déclaration Immédiate/Onmiddelijke Aangifte) declaration).
Application
Finally, the Decision states that certain documents will be able to be consulted by using an online software application. This “app” has not been developed yet, however. Any information that cannot be consulted through the app (except for the passport) will have to be sought from the direct contractor.
1 Januari 2025
The new rules enter into force on 1 January 2025.
Contracts are analyzed in detail
Liability in the context of contracting out and subcontracting and illegal employment can be punished by a prison sentence of six months to three years (if defendant is a company, then a fine of €24,000 to €576,000 is imposed instead of a prison sentence) or by a fine of €4,800 to €48,000 under criminal law, or an administrative fine of €2,400 to €24,000 (to be multiplied by the number of workers concerned, with a maximum of 100 workers), or all of these.
Contracting parties have this liability already covered by clauses in their contracting agreements. But these clauses would not have been adapted to the new rules yet, of course. Therefore, one must not only create a habit of automatically asking for additional information and documents relating to the employment of foreign workers and self-employed individuals. The contracts must be examined and updated as well.
