To further curb the employment of illegal third-country nationals, a joint and several liability for payment of the wages of these employees was created. This joint and several liability for payment of the wages of third-country nationals residing illegally in the country applies in all sectors. The degree to which this is rendered punishable varies according to the point in the chain in which the offence occurs.
The contractor (in the absence of a chain of subcontractors) and the intermediary contractor (in the context of a chain of subcontractors) are in theory always jointly and severally liable for payment of the wage payable by their direct subcontractor to third-country nationals residing in the country illegally.
However, they can avoid this joint and several liability by including in the contract of services a statement in which their direct subcontractors declare that they do not and will not employ any illegally resident third-country nationals. The risk of joint and several liability is consequently eroded. However the joint and several liability resurfaces the moment the (intermediary) contractor becomes aware of illegal employment by one of his direct subcontractors (e.g. by means of a notification from the social inspectorate).
In this case the joint and several liability only relates to future wage debts, i.e. the wage payable from the moment the (intermediary) contractor is informed of the illegal employment by his direct subcontractor and only with regard to the wage pertaining to the services rendered in the framework of the contract in question.
Indirect subcontracting only occurs when there is a chain of subcontractors. In this case the principal contractor and intermediary contractor are in theory only jointly and severally liable from the moment they are made aware of the illegal employment by one of the indirect subcontractors (e.g. by means of a notification from the social inspectorate). Reference is made to an indirect subcontractor if no contractual relationship exists with the principal contractor and/or the intermediary contractor.
Here, too, the joint and several liability only concerns future wage debts.
The joint and several liability of the contract-awarding company is at issue both in the framework of a chain of subcontractors and when there is no such chain.
A contract-awarding company that knows that its direct or indirect (sub)contractor employs one or more illegally resident third-country national(s) is jointly and severally liable for the payment of the wage still payable by said contractor or subcontractor. This liability concerns the wage for employment services rendered by these illegally resident nationals from the moment the contract-awarding company became aware of this fact, and performed to the contract-awarding company’s benefit.
To combat the erosion of joint and several liability, Flanders has decided to tighten up the duty of care on the part of the (intermediary) contractor.[1] The legislation only applies to activities in Flanders and only relates to penal responsibility in the context of direct contracting.
The tightening up of the duty of care implies that in addition to the written statement in the contract of services, the (intermediary) contractor must ask his direct subcontractor in advance for the following documents:
The Flemish Government has drawn up a checklist enumerating the documents to be furnished, which varies according to the labour migration context. A distinction is made according to whether or not use is made of the free movement of services. If use is made of the free movement of services, reference is made to the provision of intra-Community services. This concerns the so-called “Vander-Elst exemption”. If use is not made of the free movement of services and the third-country national works on a permanent basis in Belgium, the normal work permit rules apply.
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Intra-Community services
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Work permit
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Proof of valid passport (or equivalent travel document) of all third-country nationals who are employed by the direct subcontractor or who carry out professional activities on a self-employed basis by order of the direct subcontractor and of the direct subcontractor who is a natural person.
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Idem
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Proof of entitlement to residence or residence permit of more than three months in an EEA Member State or the federal state of Switzerland where the third-country nationals in question are resident.
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Proof of legal residence
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If applicable, proof of registration in the Limosa land register
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Proof of a valid Belgian work permit or professional card of the aforementioned third-country nationals
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A1 form (at least acknowledgement of receipt of the application)
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For employees DIMONA certificate
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By 1 January 2025 an online application will have been developed in which some of these documents can be consulted. The (intermediary) contractor must check whether the necessary data appear in this application. If the data are not available in the application, the (intermediary) contractor must ask his direct subcontractor for them (with the exception of a valid passport). In doing so it is important for notice to be given of a deadline by which these documents must be provided. If the direct subcontractor fails to furnish the data within the stipulated deadline, the (intermediary) contractor must immediately notify the social inspectorate of this.
If they wish, (intermediary) contractors can enlist assistance for this more wide-ranging duty of care from a social security service provider (i.e. authorised agents who fulfil social security formalities in a direct relationship with the social security institutions in the name of and on behalf of employers) or a recognised social security secretariat.
It concerns merely a duty of care and not a duty to check the documents’ validity. Of course the (intermediary) contractor should always display common sense and for example check that the documents’ period of validity has not yet expired.
As well as tightening up the duty of care the new legislation also makes provision for an extended scope. The new legislation applies not only to third-country nationals with employee status, but also to self-employed workers. One of the cases it concerns is that of the direct subcontractor who provides services himself as a self-employed person (director / active partner).
However, it is not clear whether it also concerns the situation in which the direct subcontractor has self-employed natural persons carrying out services on his instructions. After all the Flemish Government decree talks of “third-country nationals who carry out professional activities on a self-employed basis by order of the direct subcontractor”. If the latter were the case, an extra step is added in the chain of liability. The application in practice ought to provide clarity in this area.
If the (intermediary) contractor fails to comply with these new obligations and there is an infringement of the provisions governing illegal employment, he will receive a level 4 sanction. This concerns either penalties under criminal law (a prison sentence of between six months and three years[2] and/or a criminal fine of €4,800 to €56,000) or administrative penalties (a fine of between €2,400 and €28,000). The fines have to be multiplied by the number of foreign nationals involved to whom the infringement applies, subject to a maximum of 100.
In the event of activities in Flanders (intermediary) contractors will have to ask for additional information and documents from their direct subcontractors from 1 January 2025 onwards. These documents must be kept at the disposal of the social inspectorate’s services. It is therefore important for you to review your contracts of services with subcontractors and incorporate additional provisions as and where necessary.
[1] Decree of 27 October 2023 amending the Act of 30 April 1999 on the Employment of Foreign Workers, Belgian Official Journal of 30 November 2023; Flemish Government Decree amending the Flemish Government Decree of 7 December 2018 implementing the Act of 30 April 1999 on the Employment of Foreign Workers, as regards the data to be furnished in the event of subcontracting, Belgian Official Journal of 5 June 2024.
[2]For legal entities the prison sentence is converted into a fine of between €24,000 and €576,000.
