A significant reform of the Social Penal Code is anticipated

A new draft Act has recently been submitted to the Belgian Parliament that aims to amend the Social Penal Code which lists the infringements of labour and social security law that are punishable and the related penalties. The new draft Act is very ambitious, as it contemplates being the biggest reform of the Social Penal Code since the latter’s enactment. The draft Act proposes a set of measures, including (i) increased fines for penalty levels 3 and 4, (ii) more stringent punishment for the more serious infringements but less severe penalties for employers’ honest ‘administrative mistakes’, (iii) the introduction of a new penalty and new aggravating circumstances, (iv) the introduction of a legal definition of what is to be understood by ‘social dumping’, etc.

In this newsflash, we discuss the draft Act’s most important changes.

1.Increased fines for penalty levels 3 and 4

For the most serious offences, the fines are proposed to increase:

• for penalty level 3 offences: the fines are doubled; and

• for penalty level 4 offences: the maximum fines are increased by EUR 1,000 EUR for the criminal fine and with EUR 500 for the administrative fine. 

The table below shows the penalty levels and the corresponding criminal and administrative fines before and after the proposed reform.

Penalty Level	Criminal Fine Before	Criminal Fine After	Administrative Fine Before	Administrative Fine After
Level 1	/	/	€80 – €800	€80 – €800
Level 2	€400 – €4,000	€400 – €4,000	€200 – €2,000	€200 – €2,000
Level 3	€800 – €8,000	€1,600 – €16,000	€400 – €4,000	€800 – €8,000
Level 4	€4,800 – €48,000	€4,800 – €56,000	€2,400 – €24,000	€2,400 – €28,000

The amounts above have already been increased with the applicable surcharges (“opdeciemen/décimes additionnels”).

2.Altered penalty level for various infringements

For various infringements, the new draft Act proposes increasing the penalty level (e.g. from penalty level 2 to penalty level 3 or from penalty level 3 to penalty level 4). However, for other infringements, which the legislator considers to be an honest ‘administrative mistake’ by the employer, the penalty level would be decreased. The draft Act also introduces some new infringements.

The table below lists some examples.

Increased penalty level	Decreased penalty level	New infringements
Non-payment or late payment of salary, travel costs, meal  vouchers, etc.	Some ‘administrative mistakes’ for part-time work (e.g. not keeping a copy of the employment contract at the location where the work rules can be consulted).	For sliding work schedules: failure to provide a time tracking system that includes all mandatory data for each employee, allowing keeping such data for a sufficient period of time, etc.
Violations of the information and consultation procedure for collective dismissal.	Failure to comply with the disclosure formalities regarding holiday replacement days,	Failure to compensate for the supply, maintenance and cleaning of work clothes.
Non-compliance with  the obligations regarding wage deductions.	Failure to (in time) inform by registered letter any candidate or employee who is subject to a medical examination or an authorised biological test.	Failure to provide the necessary working tools.

3.The introduction of new penalties and new aggravating circumstances

The draft Act also proposes introducing a new penalty and new aggravating circumstances:

New penalty	New aggravating circumstances (which may give rise to a more severe penalty)
The prohibition on participating in public tenders or the obtaining of  concessions.	-Intentional fraud (for level 4 penalties). -Threats or violence against a social inspector.

4.The introduction of a legal definition for ‘social dumping’

The new draft Act aims to strengthen the fight against social dumping and introduces, for the first time, a legal concept of what is to be understood by ‘social dumping’, namely:

“a wide range of deliberate abusive practices and the circumvention of existing European and/or national legislation, including laws and generally binding collective bargaining agreements, that enable unfair competition by illegally minimising labour and operating costs, and that result in the violation of workers’ rights and the exploitation of workers.”

5.Conclusion

This legislative initiative is undoubtedly the most significant Social Penal Code reform since the Code’s enactment. However, the draft Act still has to be voted on in Parliament. We will keep you informed about developments!

Written by

• Esther Soetens

  Counsel

• Thomas Gellaerts

  Associate