On 21 June 2024, the Law amending social criminal law and introducing various employment law provisions was published in the Belgian Official Gazette.[1] Most of the changes concern measures to combat illegal work and social security fraud. As well as amendments to the Social Criminal Code, provisions are also included on the organisation of the subcontracting chain and joint and several liability for payroll debts. As the latter provisions will not enter into force until 2025, we will discuss them at a later date. This article focuses on the main changes to the Social Criminal Code.
Article 101 of the Social Criminal Code contains a list of possible sanctions that can be imposed depending on the offence. The new law increases the administrative and criminal fines at levels 3 and 4. An overview is given below of the possible sanctions per level with effect from 1 July 2024 (already multiplied by surcharge multipliers)[2].
| Sanction level | Prison sentence | Criminal fine | Administrative fine |
| Level 1 | / | / | €80 – €800 |
| Level 2 | / | Either €400 – €4,000 | Or €200 – €2,000 |
| Level 3 | / | Either €1,600 – €16,000 | Or €800 – €8,000 |
| Level 4 | Either 6 months to 3 years | And/or €4,800 – €56,000 | Or €2,400 – €28,000 |
A conversion mechanism is provided for legal entities. The prison sentence is replaced by a higher criminal fine at level 4. The criminal fine for legal entities at level 4 will be a minimum of €24,000 and a maximum of €576,000. However, this conversion mechanism will only take effect once the new Criminal Code has entered into force (i.e. on 8 April 2026).
The new law extends the repeat offence period from 1 to 3 years. This means that in the event of a repeat offence within 3 years of a conviction for a breach of the Code, the criminal or administrative fine may be doubled. A doubling of the prison sentence is no longer possible.
The law also adds an aggravating factor for breaches at sanction level 4. If a breach is penalised at sanction level 4, the fact that it was committed knowingly and wilfully constitutes an aggravating factor. The judge/administration must take this aggravating factor into account when determining the sanction to be imposed (within the range of sanctions in the table).
In addition, the law provides for an increase to sanction level 4 for certain breaches (which are normally penalised at a lower sanction level) if they were committed intentionally (for example, deliberate failure to arrange occupational accident insurance).
As well as the sanctions table, the new law also changes the sanction level for specific breaches, both upwards and downwards. The following is a non-exhaustive list:
As well as increasing and decreasing sanction levels, the law also introduces some new sanctions and removes some existing ones.
For example, a new specific sanction is introduced for an employer who fails to issue ecocheques (level 2) or for an employer who, in violation of a collective labour agreement that has been declared generally binding, has failed to pay employees compensation for the maintenance or supply of work clothing, for example (level 2).
Finally, the law also provides the option for the judge to order an offender to be deprived of the right to participate in public contracts or concessions (for a period of three to five years) as an additional penalty. This additional penalty is only possible if a criminal prosecution takes place and only in the case of convictions for breaches sanctioned at level 3 or 4.
With a few exceptions, the modifications to the Social Criminal Code entered into force on 1 July 2024. These new provisions must therefore be taken into account immediately.
It should be pointed out that the two principles set out in Article 2 of the Code also apply here:
Example: A company engages in a behaviour that was not an offence at the time, but which has become an offence due to the amendment of the Social Criminal Code with effect from 1 July 2024. The company cannot be sanctioned retroactively for this.
Example: A company commits an offence relating to the register of temporary workers on 1 February 2024 (subject to sanction level 2 at the time). A court rules on the offence on 1 September 2024 (by which time it is subject to sanction level 1). In its ruling, the court must apply the milder penalty, i.e. sanction level 1.
Example: A company has failed to comply with the information and consultation procedure with regard to collective redundancies as of 1 February 2024. A court rules on the offence on 1 September 2024. The court must apply the sanction that was applicable on 1 February 2024 (i.e. sanction level 2), not the sanction applicable at the time of the ruling (sanction level 3).
Example of an ongoing offence: A company has failed to appoint a confidant since 1 February 2024. This constitutes an ongoing offence. A court rules on the offence on 1 September 2024. The court must do so in accordance with the latest legislation. Consequently, the more severe penalty set out in the new legislation (sanction level 3) will apply to the offence if a confidant has still not been appointed at that time.
[1] Law of 15 May 2024 amending social criminal law and introducing various employment law provisions, Belgian Official Gazette 21 June 2024.
[2] The changes are indicated in colour.
[3] An ongoing offence is an offence in which the perpetrator allows the unlawful situation to continue on an ongoing basis.
[4] E. Van Muylem, ‘Conflict van strafwetten in de tijd’, AJT 1998-99.