On May 8th, 2024, the House of Representatives approved the Bill amending the Social Criminal Code and various labour law provisions. This Bill is the result of a review of the Social Criminal Code (hereinafter "SCC"), among other things in light of the recent reform of the old Criminal Code of 1867 and with a view to combating social fraud more effectively. In this e-zine, we will summarize some of the relevant changes for the practice of labour law.
1. Increase of penalties of level 3 and 4
The violations stipulated in the SCC will still be punished with a sanction of level 1-4.
Administrative and criminal fines of level 1 and 2 the sanction of imprisonment of level 4 remain unchanged. Administrative and criminal fines of level 3 and 4, on the other hand, are increased as follows (the amounts below have already been multiplied by the current surcharges (x8)):
- Criminal fine (EUR)
- Level 3 Before: 800 - 8.000
- Level 3 After: 1.600 - 16.000
- Level 4 Before: 4.800 - 48.000
- Level 4 After: 4.800 - 56.000
- Administrative fine (EUR)
- Level 3 Before: 400 - 4.000
- Level 3 After: 800 - 8.000
- Level 4 Before: 2.400 - 24.000
- Level 4 After: 2.400 - 28.000
For criminal fines of level 2-4 imposed on legal persons, the Bill takes over the conversion mechanism of the old Criminal Code currently still in force. For level 2-3, this means that the minimum and maximum amounts as listed in the chart above will apply. For level 4, the criminal fine is determined as follows:
- minimum EUR 500 multiplied by the number of months of the minimum prison sentence, without being lower than the minimum fine linked to the offense (which is not the case). More specifically, the minimum fine for a legal person is EUR 24,000 after multiplication with the current surcharges.
- maximum EUR 2,000 multiplied by the number of months of the maximum prison sentence, without being lower than double the maximum fine linked to the offense (which is not the case). More specifically, the minimum fine for a legal person is EUR 576,000 after multiplication with the current surcharges.
2. Stricter punishment for specific and repeated violations
For certain violations, the Bill provides for more severe sanctions than the current SCC, for example the non-payment or late payment of salary and non-compliance with the rules on deductions from salary (both from level 2 to level 3, subject to exceptions).
In addition, the timeframe for repetition is extended from 1 to 3 years. Consequently, the maximum criminal or administrative fine may be doubled.
On the other hand, some - rather "administrative" - violations will be less severely sanctioned.
3. Other novelties
The Bill includes other novelties, such as:
- New violations, including non-compliance with certain rules related to gliding work schedules (punished with sanction of level 2);
- A new sanction that can be imposed for violations of level 3 and 4, i.e. exclusion from the right to tender for public procurement or to obtain concessions;
- The aggravating factor of knowingly and willingly committing a violation, which the judge / administration must take into account when choosing the sanction of level 4. The judge must also take that factor into account when choosing the special criminal sanctions;
- The definition of the term "social dumping": "a wide range of intentional abusive practices and the circumvention of existing European and/or national legislation, including laws and generally applicable collective agreements, that enable unfair competition by illegally minimizing labour and operating costs, and result in the violation of employees’ rights and their exploitation."
- This definition does not make social dumping a separate crime, but is included to indicate that the combat against social dumping will be one of the priorities in criminal policy.
- The explicit confirmation of jurisprudence of the Constitutional Court according to which an administrative fine can only be imposed on the offender, even if the violation was committed by a representative or agent, except if the offender can prove that he did not commit any fault because he took all measures to the best of his ability to prevent the material element of the violation from occurring.
- Introduction of specific rules on the organization of the subcontracting chain and joint liability for unpaid salary in the construction, meat industry and moving sectors, transposing European Directive 2014/67/EU.
4. Entry into force
The articles of the Bill will not all enter into force on the same date.
For some provisions, a specific timing is set. For example, the entry into force of Book 1 of the new Criminal Code determines the entry into force of the new rules on fines applicable to legal persons, certain provisions on violations will enter into force on a date to be determined by the government, subject to compliance with utter dates, and for certain provisions on the organization of the subcontracting chain, the date of entry into force will be one month after publication in the Belgian Official Gazette. The other provisions, will enter into force 10 days after publication in the Belgian Official Gazette. Of course, prohibitions on the retroactive application of the stricter criminal laws must also be taken into account.
The act has yet to be published in the Belgian Official Gazette.
5. Action for employers
Employers will certainly have to take into account the increase in certain sanctions and the existence of new violations when assessing any risks in the event of non-compliance with labour law.
Stijn Lamberigts
Liesbet Claessen
