New information obligation for business transfers

At a glance

• Council Directive 2001/23/EC (Directive) mandates that staff representatives must be informed about the date, reasons, implications, and any measures related to the transfer. If there are no staff representatives, this information must be provided directly to the workers.
• This Directive is implemented in Belgian law through collective bargaining agreements (CBA) No. 9 and No. 32bis.
• The transferor must inform staff representatives about the implications of the transfer, but what these are will depend on the transferee's post-transfer plans. Cooperation between transferor and transferee is recommended to ensure quality information.
• A new article in CBA No. 32bis requires the transferor to provide the transferee with shared information and invite the transferee to present to staff representatives, though the transferee is not obliged to accept.
• Information should be provided 'in a timely manner' before the transfer. The content and timing of any presentation by the transferee are to be mutually agreed upon by staff representatives and the transferee.

In the event of a transfer of undertaking, the Directive mandates that staff representatives must be informed about: 

• the date or proposed date of the transfer;
• the reasons for the transfer;
• the legal, economic and social implications of the transfer for employees; and
• any measures envisaged in relation to employees (eg redundancies, a relocation to the premises of the transferee).

If there are no staff representatives in the company, this information must be provided directly to the transferring workers. 

This Directive is implemented into Belgian law through CBA No. 9, which consolidates national agreements and CBAs related to works councils, and CBA No. 32bis.

Regarding the implications of the transfer, a practical issue may arise. The transferor is required to provide information on this to staff representatives before the transfer. However, what the implications are will depend on the transferee's plans for the period following the transfer. Often the transferor won't have sufficient information about the transferee's plans so will only be able to inform staff that the transferee is required to respect all employment obligations as they exist immediately before the transfer.

In a communication of 17 December 2019, the Belgian National Labour Council stated there should be some form of cooperation duty between the transferor and the transferee to ensure the quality of information the transferor can share with its staff representatives.

CBA No.32 bis

On 17 December 2024, the National Labour Council signed a new CBA, updating existing CBA No. 32bis to address this topic. A new article (15/2) was added to the CBA which stipulates that, at the request of the staff representatives of the transferring workers, the transferor should provide the transferee with the information the transferor has shared with staff representatives and should invite the transferee to give a presentation to the staff representatives.

The new CBA only partially regulates the sharing of information. It says that staff representatives can ask the transferor to invite the transferee to give a presentation, but it does not explicitly require the transferee to accept this invitation.

If the transferee agrees, the CBA simply refers to the transferee giving a presentation. The content of the presentation is left to the transferee's discretion, and the CBA does not specify any particular points to be covered. Regarding timing, the CBA specifies that information should be provided to the transferee 'in a timely manner,' but definitely before the transfer. If the transferee agrees to give a presentation, the timing of this presentation is to be mutually agreed upon by the staff representatives and the transferee.

The amended CBA No. 32bis does not address a further issue that can arise from a lack of information sharing between the transferor and transferee. The transferee must respect all rights and obligations under the employment contracts of transferred workers as they exist at the time of the transfer. However, CBA No. 32bis does not specify a procedure for the transferor to inform the transferee about these rights and obligations. Ideally, the parties should impose contractual requirements to provide this information.  

In some joint committees, particularly the joint committee for the cleaning sector, there is a CBA at the joint committee level that specifies an information-sharing procedure to ensure the transferee is informed about existing rights and duties.