HR Flash: New Belgian Code on Social Criminal Law

On 1 July 2010, the Code on Social Criminal Law was published in the Belgian Official Journal. It will enter into force at the latest on 1 July 2011.

This new Code will lead to a more efficient and uniform sanctioning of employers who infringe the Belgian labour and social security legislation.

Most of the Belgian social laws carry criminal sanctions for infringement. Penalties range from fines to imprisonment. Until now, the sanctions were spread out in various pieces of legislation giving rise to incoherency and a lack of legal certainty. Moreover, there was no uniformity between different types of infraction and their corresponding sanction.

This is the context in which a Government Commission was established in 2001, to reform the social criminal law. A number of reforms, such as the establishment of specialised social sections in the criminal tribunals, were introduced. The most important reform is however the recent introduction of this new Code on Social Criminal Law.

The Code is subdivided in two parts.

The first part

The first part covers the following:

An overview of the competencies of the Social Inspection unit (the government agency controlling companies) and the procedure of appeal against decisions of the social inspection;

The exchange of information between the Social Inspection unit and other government administrative bodies;

General principles regarding the procedure of appeal, rules regarding the complicity, grounds of justification, repeated infractions, etc.;

Rules regarding the execution of a sanction, delays and limitation periods, etc.;

A schedule of different categories of infractions and the applicable sanctions having regard to the seriousness of the infraction.

The second part

In the second part, the Code provides an overview of the infractions that may arise under the different pieces of legislations and links them to the appropriate sanction level. The objective here is to achieve coherency and consistency between infractions and sanctions at each of the levels.

Infractions and sanctions

The Code has four levels of infraction and applicable sanctions:

• Minor infractions (level 1). The sanction for breach is an administrative fine (this is a fine of between €55 and €550;
• Average infractions (level 2). The sanction for breach is a criminal fine of between €275 and €2.750 or an administrative fine of between €137,50 and €1.375;
• Serious infractions (level 3). The sanction for breach is a criminal fine of between €550 and €5.500 or an administrative fine between €275 and €2.750;
• The most serious infractions (level 4) are sanctioned with a term of imprisonment of between 6 months and 3 years, and/or a criminal fine of between €3.300 and €33.000, or an administrative fine between €1.650 and €16.500.

Infractions that are considered to be at level 3 or 4 can, in certain situations, be sanctioned with a permanent or temporary closing of the company.

Below are some examples of the sanctions that would apply to different levels of infraction under the new Code:

• Level 4 infractions: illegal employment of foreign nationals, preventing of control by the Social Inspection unit/department, not fulfilling statutory obligations regarding the declaration of new employees, etc.
• Level 3 infractions: non observance of formalities regarding part-time employment, infractions of health and safety legislation, etc.;
• Level 2 infractions: infractions of legislation regarding working hours, vacation or public or bank holidays, work rules, etc.;
• Level 1 infractions: non-observance of the obligation relating to the provision of information in the case of a collective dismissal or regarding the time-credit regimes, etc.

As mentioned above, the different infractions and the corresponding sanctions of social laws were previously covered by different pieces of legislation. Thanks to their grouping in one single Code, employers and practitioners will now have a better understanding of the likely consequence arising from an infraction and the potential penalty for any infringement. While there may still be some uncertainty as to the range of sanction imposed at each of the 4 levels, this new Code should ensure a more transparent, efficient, comprehensive and logic system of sanctioning than was the case under the previous system.