On 4 March 2013 the Act of 11 February 2013 relating thesanctions and measures against employers of third-country nationals staying in Belgium illegally will enter into force.
1 – Context
The Act transposes the obligations incumbent on Belgium under European Directive 2009/52/EC of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. A third-country national is any person who is not a citizen of the European Union and is not a person enjoying the Community right of free movement.
2 – Most important provisions of the Act
Employer has to check residence permit
The Act foresees in:
- the obligation on employers to check that a third country national has a valid residence permit or authorisation to stay, before hiring this individual. The employer would have to require the employee to produce a valid residence entitlement, which is not currently the case
- the obligation on employers to keep a copy and details of the residence permit or any other valid residence document available for inspection by the relevant authorities, at least during the term of the employment
- the obligation to employers to give notice of the commencement and end of employment of the foreign worker. Such obligations already exist in Belgium in the form of Dimona and Limosa declarations
The employer who does not comply with these obligations is liable to imprisonment of six months to three years and a criminal fine of 3,600 to 36,000 euros or to an administrative fine of 1,800 to 18,000 euros. In addition, the court can order a trading prohibition, close the business down or ban the culprit from practising a certain profession.
Shortfall payments by the employer
Employers would also be liable to pay outstanding wages to an illegally employed third-country national including any expenses of sending the outstanding wages to the country where the illegally employed third-country national is returned or returns. The wage would have to be of a value at least equal to the wage he would have had to pay a lawfully employed employee in a similar job.
The Act provides that the employer would be liable to pay outstanding taxes and social security contributions to the Belgian state.
Joint and several liability for principals and contractors in cases of illegal employment
The Act also provides a system of joint and several liability for unpaid salary resting on principals and main and subcontractors in cases of illegal employment.
Facilitating of legal proceedings
In case the employer is not compliant with the provisions of the Act, the employee can start legal proceedings before court, but also trade unions and employers and employees organisations, as well as the Centre for Equal Opportunities and Opposition to Racism can do this on behalf of the employee.