As announced in our newsflash of 8 December 2023, the Flemish Government has tightened the provisions on joint and several criminal liability. However, the exact scope of this expansion and the date of its entry into force were yet to be determined by the Flemish Government.
On Friday 26 April 2024, the draft Decision was given final approval in the Council of Ministers. It was also published today in the Belgian State Gazette. In this newsflash, we briefly discuss the changes.
Under current regulations, an (intermediary) contractor can protect itself from liability for the employment of illegal third-country nationals by exercising due diligence, i.e., by having the subcontractor declare in writing that it does not or will not employ illegal third-country nationals. However, this protection will lapse if, prior to the breach, the (intermediary) contractor was aware that the subcontractor was employing illegal third-country nationals (including through a notification by the social inspectorate).
This duty of care will be extended under the new regulations. In addition to the written declaration in which the direct subcontractor confirms that it does not or will not employ illegal third-country nationals (employees or self-employed persons), the (intermediary) contractor, when hiring a direct subcontractor, must exercise due diligence to prevent him from employing illegal third-country nationals.
To fulfil this duty of care, the following documents should be requested from the direct subcontractor:
- identification and contact details of the direct subcontractor;
- personal data, data on residence status and data on the employment of foreign employees and self-employed persons employed by the direct subcontractor.
However, until recently, it was not clear which documents had to be provided and in which way.
The Flemish Government has now issued a checklist regarding the concrete data that must be provided.
The documents to be provided depend on the labour migration context:
- intra-Community or intra-EU supply of services (for employees better known under the so-called "Vander Elst" exemption)
- constellations where authorisation to work (in the form of a labour card or combined permit for employees or a professional card for self-employed persons) is required:
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Intra-Community services |
Admission to employment |
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Valid passport of all third-country nationals employed by the direct subcontractor or performing self-employed professional activities on behalf of the direct subcontractor and of the direct subcontractor natural person (if applicable). |
Valid passport of all third-country nationals employed by the direct subcontractor or performing self-employed professional activities on behalf of the direct subcontractor and of the direct subcontractor natural person (if applicable). |
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The residence permit or proof of legal residence (>3 months) of the EEA member state or Switzerland where the aforementioned third-country nationals reside. |
Proof of legal residence in Belgium. |
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The L1 form (if applicable). |
Admission to work (labour card, combined permit or professional card). |
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The A1 certificate (or at least proof of application for the A1 certificate). |
Proof of DIMONA (for employees). |
Finally, the Decision stipulates that certain documents shall be accessible via an online application. This application is currently under development and should be operational on 1 January 2025.
The Decision further provides that (intermediary) contractors will be able to be assisted by a social service provider or a recognised social secretariat for this new task.
The data that cannot be consulted via the application will have to be requested from the direct subcontractor (with the exception of the passport). If these are not provided, the (intermediary) contractor will have to notify the social inspectorate to comply with the new interpretation of the duty of care.
These regulations will take effect from 1 January 2025.
Action point
From 1 January 2025, (intermediary) contractors will have to request additional data and documents related to the employment of foreign workers and self-employed persons from their direct subcontractor
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.