Belgium is working on implementation of the European Union (EU) Blue Card directive; there is an increasing focus on compliance; and a potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions.
Work Permits; Implementation of the EU Blue Card Directive
The Belgian work permit system is a very business-friendly model in practice. The "regular" work permit, with a resident labor test, has become very rare in the corporate immigration context. "Fast-track" work permits, without a resident labor test, can be obtained quite fast, within two to three weeks after the date of filing of the application.
The economic recession has not led to drastic changes to the Belgian work permit system. However, one protective measure, regarding Bulgarian and Romanian nationals, should be mentioned:
- In principle, European Union (EU) nationals may work in Belgium without work permits, on the basis of the right of free movement of workers.
- For Bulgaria and Romania, which joined the EU on January 1, 2007, restrictions on this right of free movement of workers were maintained during an initial transition term until the end of 2008. That was prolonged for another three years, until December 31, 2011. The Belgian government has decided to continue the restrictions until December 31, 2013. As a rationale for this decision, the government explicitly referred to the expected economic recession in 2012/2013 as well as to similar decisions of neighboring countries to maintain the restrictions.
The available texts indicate that the Blue Card will exist alongside the current fast-track work permit B for highly skilled employees. The salary threshold for a Blue Card in 2012 will probably be €49,995, which is higher than the current threshold for a highly skilled work permit B (€37,721 for 2012).
The Belgian authorities will probably choose not to take professional experience into account to prove "higher professional qualifications," but a higher education will be required, on condition that the studies needed to acquire it lasted at least three years. Belgium will probably not apply numerical limits.
Focus on Compliance
New Code on Labour and Social Security Criminal Law. A new Code on Labour and Social Security Criminal Law took effect on July 1, 2011. It mainly codifies existing compliance rules with regard to labor and social security law-related issues, including employment of foreigners, but also creates new compliance rules.
Unauthorized/illegal employment of a foreigner who is not entitled to live in Belgium more than three months is among the infringements that are considered very serious ("type 4" infringements).
The potential penalties for such infringement include a jail term of six months to three years and/or a criminal fine between €3,600 and €36,000 per employee, with a maximum of €3,600,000 (€36,000 x 100). Furthermore, the employer may be prohibited from operating the business for a limited time, between one month and three years. The court may also order closure of the company for the same duration.
The same two accompanying penalties (prohibition from operating the business and closure of the company for a limited time, between one month and three years) may be imposed upon "HR advisors," largely defined as professionals providing advice or help to one or more employers or employees with regard to the carrying out of obligations as sanctioned by the Code, either for their own account or within an entity. According to some comments to the Code, HR consultants and payroll personnel are included in this category, but probably not lawyers or notary publics (although they may risk being an accomplice to an infringement). The courts can only impose these two accompanying penalties if they are deemed necessary to stop an infringement or to avoid repeat offending, provided that they are in proportion with overall socio-economic interests.
If the Public Prosecutor determines that this infringement does not justify criminal prosecution, an administrative fine may be imposed, ranging between €1,800 and €18,000 per employee, with a maximum of €1,800,000 (€18,000 x 100).
The Belgian authorities are working on implementation of the EU Illegals Employment Directive. A first proposal of an Act has been prepared but the text is not yet publicly available. The new Act may include the following:
- The basic principle is that employers cannot employ a person who is not an EU citizen, who does not enjoy the right of free movement, and who is present on the Belgian territory, without that person meeting the requirements for stay or residence in Belgium. The employer must check the residence documents of the potential employee before employment. Furthermore, the employer must keep a copy of these documents available for inspection and notify the competent authorities of the start of the employment.
- The new Act provides effective, proportionate, and dissuasive sanctions against employers who employ unauthorized third-country nationals in Belgium. These include general financial and criminal sanctions. The employer may also be liable to pay any outstanding remuneration to the employee. Finally, the employer may be required to pay taxes and social security contributions to Belgium.
- If the infringing employer is a direct subcontractor, the contractor will also be severally liable, unless the subcontractor states in writing that it does not employ unauthorized employees. If the infringing employer is an indirect subcontractor, the contractor can only be severally liable after notification by the social inspection services and only up to the salary as of the date of such notification.
- Employees may exercise their rights before the court, as may representative organizations for employers or employees and the Centre for Equal Opportunities and Opposition to Racism (an independent government agency that fights discrimination and racism and that assists victims).
Potential Change: Transfer of Legislative Power From Federal to Regional Level
A potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions. At present the regions (Brussels, Flanders, and Wallonia) process work permits on the basis of federal legislation. The coalition agreement of the federal government and the general policy statement of the federal Minister of Employment both mention the transfer of legislative authority regarding economic migration to the regions.
No specific steps have been taken yet to initiate this process. It is not yet clear whether, when, and to what extent the transfer of legislative power will be implemented. This could lead to different rules for Brussels, Flanders, and Wallonia.