The summer of 2011 will go down in the annals of Belgian employment law for the entry into force, on 1 July 2011, of the new Employment and Social Security Criminal Code (the "Code"), which has been awaited for thirty years.
Situation before 1 July 2011
Before the entry into force of the Code, federal employment and social security criminal law was extremely fragmented and lacked coherent criminal and administrative sanctions.
Situation as from 1 July 2011
The Code strives to create, from the various and sundry rules of employment and social security criminal law, a harmonious whole, by means of simplification and standardization through the repeal and/or replacement of certain provisions. In addition, the powers of the social inspectors have been updated and modified in order to allow them to play a more active role, with an emphasis on prevention and modern investigative techniques.
Further, the Code adopts a consistent approach to offences and sanctions. To this end, it replaces criminal provisions in various pieces of employment and social security legislation, as well as the former act on administrate fines.
In this respect, the Code provides for four different levels of violations (slight, moderate, serious and very serious) of employment and social security provisions, each with a corresponding penalty, i.e., criminal sanctions (only for level 2-4 offences) ranging from a EUR 50 fine to EUR 6,000 and/or a prison term (only for level 4 offences) or an administrative fine of EUR 10 to EUR 3,000.
It should be noted that these amounts are multiplied by a coefficient (the so-called décimes additionnels or opcentiemen, currently 5.5) in order to adjust for inflation. Further, if the Code so provides, the criminal or administrative sanction can be multiplied by the number of affected employees, subject to a cap.
The Code decriminalises certain slight violations (level 1), while very serious offences (level 4) are now punishable by imprisonment.
Furthermore, for some serious (level 3) and very serious (level 4) offences, the Code allows the court to temporarily prohibit the defendant from engaging in a professional activity or even to order the closure of the defendant's business.
This new approach offers a wide array of sanctions and provides a coherent framework, which will enhance legal certainty.
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