Belgium introduces a duty to actively monitor the right to work for subcontractors

At a glance

• Non-EU nationals generally need a work permit and professional card to work in Belgium, with some exceptions. Severe sanctions can be imposed for non-compliance.
• The main party can be held accountable for violations of the law related to subcontractors’ right to work, as per Article 12/4 of the Act of 30 April 1999.
• The legislation follows a three-step approach where the principal can be held responsible if a direct contractor violates the law concerning the right to work.
• A Flemish Decree issued on 27 October 2023 fundamentally amended the second step of the reasoning, converting it into an obligation for the principal to actively verify and monitor that its direct subcontractors are complying with the right to work.
• This Decree will enter into force on 1 January 2025.

In principle, individuals who are not a national of an EU-Member State are generally required to obtain a work permit to be eligible to work in Belgium. Likewise, third-country nationals must obtain a professional card to work in Belgium. However, there are certain exceptions to both these requirements.

Where an employer, or self-employed individual fails to oblige by the general rules, severe sanctions can be imposed. However, infringements are often committed by the last company in a chain of subcontractors, rather than the main company involved. 

Article 12/4 of the Act of 30 April 1999 concerning the employment of foreign workers, provides a provision to hold the main party accountable for violations of the law related to subcontractors’ right to work. However, in practice, this was rarely applied. 

The legislation followed a three-step approach.

The first step involves a fundamental rule where a principal may be held responsible if a direct contractor violates the law concerning the right to work. This rule is applicable to direct contractors and does not extend to violations committed by a subcontractor working under the direct contractor.

There is another reason why this first step was generally purely theoretical: the second step of the reasoning stipulates that this liability for violations by a direct contractor doesn’t apply if the principal has a written confirmation from the direct contractor stating that it doesn’t employ individuals without the right to work in Belgium. Therefore, simply incorporating a clause in the contract agreement that mandates the contractor’s adherence to the law is sufficient. Given that this clause applies to compulsory legislation that could lead to criminal penalties in case of a violation, its content is self-evident. However, this clause does not cover liability for violations committed by a direct subcontractor, unless the conditions of the third step of the argument are met.

The third step holds that the principal can be held liable for a violation by a direct subcontractor if the principal was aware of the violation.

A Flemish Decree issued on 27 October 2023 fundamentally amended the second step. This Decree, however, has not been put into effect yet due to the lack of an accompanying implementing Decree. On 4 June 2024, the Official Journal published a Decree dated 26 April 2024, which contained the essential measures for implementation. This publication specified that the Decree of 27 October 2023 would enter into force on 1 January 2025.

The second step of the reasoning is being converted into an obligation for the principal to actively verify and monitor that its direct subcontractors are complying with the right to work. To avoid being liable for infringements by a direct contractor, under the new legislation the principal must not only have a written statement by the direct contractor confirming it’s complying with the legislation on the right to work, but the principal must also have shown ‘appropriate diligence’ to prevent an infringement by the direct subcontractor.

The Decree of 26 April 2024 clarifies this notion of ‘appropriate diligence’. The principal must systematically require the direct contractor to submit the information necessary to verify the compliance with the right of access to the Belgian territory and the right to work for every person the direct contractor employs.

For each person the direct contractor employs, the principal must ask for the necessary documents to verify compliance. This includes the passport of the person involved. The other documents required depend on whether the worker is employed by a company only working in Belgium on a temporary basis, or rather a company based in Belgium.

For international businesses temporarily operating in Belgium, the necessary documentation includes proof of residency rights in their home country, the Limosa-declaration to the Belgian social security administration (a standing requirement), and confirmation that the social security system of their home country is still applicable during their stay in Belgium.

For staff who are usually employed in Belgium, the required documentation includes proof of the right to enter Belgian territory, proof of employment eligibility in Belgium, and if relevant, confirmation of the social security declaration of commencement of work. If a direct contractor fails to submit the required documents, the principal should notify the social inspection.

The Decree of 26 April 2024 requires the government to set up an online application system which facilitates the monitoring of the required documents. However, this still needs to be developed, so it’s unclear how this will work in practice.

It’s also unclear how the payroll agency will be able to assist an employer because normally, a payroll agency will not have all of the required information (for instance a copy of the passport of each worker).

The new legislation enters into force on 1 January 2025. As it is a Flemish Decree, it only applies to the Flemish region. The legislation remains as it currently is in Wallonia and the Brussels region.

The legislation is applicable irrespective of the terms of the service agreement. So, we recommend businesses amend service agreements by adding clauses on the practical modalities of this new legislation, for instance by requiring the contractor to provide the required documents a certain period in advance. Then the contractor will have time to check the documents, the steps to be taken if documents are not drafted in English, French or Dutch, and the liability of the contractor.