Amendment of the Chain Liability Regulations for illegal employment of third-country nationals in the Flemish Region

Due to a few recent cases where illegal employment and human trafficking were discovered at large construction projects in the Flemish Region, the Flemish Government wanted to revise its regulations regarding chain liability. The Flemish Government decided to introduce additional liability measures as they noted that contractors could easily limit and thus externalize their liability in the context of (sub)contracting, whereby certain tasks are not physically carried out by the company’s own employees, but by the (employees of the) subcontractor.

Liability of (intermediate) contractor for direct subcontractor

Under the previous regulations, an (intermediary) contractor could protect himself from liability for employment of illegal third-country nationals by having their subcontractor certify in writing that he does not or will not employ illegal third-country nationals (“written declaration”).

Under the new regulations, the (intermediary) contractor must ask its direct subcontractor – in addition to the written declaration – to provide the following:

• identification and contact details of the direct subcontractor;
• personal data, data on the residence status and data on the employment of the foreign workers and self-employed persons employed by the direct subcontractor. This provision has however not yet entered into force as the Flemish Government still needs to make a checklist with the necessary data and documents that need to be provided and the modalities thereof. The preparatory works refer, among other things, to valid residence permits, work/single permits, professional cards and Limosa notifications.

If the (intermediary) contractor did not receive these data, he must request this again from his direct subcontractor. If the subcontractor does not comply with this request, the Social Inspectorate must be notified.

The new regulations also state that the (intermediary) contractor who is aware that the subcontractor was employing illegal third-country nationals cannot enjoy this protection. The Social Inspectorate can prove this by any means of evidence. This concerns a clarification to the old legislation to emphasise that the (intermediary) contractor can be informed, not only by the Social Inspectorate through a notification, but also through any other means of evidence. 

Liability of main or intermediate contractor in the framework of subcontracting

The clarification regarding the means of evidence is also added to the liability rules for the main or intermediate contractor in the framework of subcontracting.

Sanction

In the event of a violation of these provisions, a prison sentence of six months to three years (for legal entities, a fine of EUR 24,000 to EUR 576,000) and/or a criminal fine of EUR 4,800 to EUR 48,000 or an administrative fine of EUR 2,400 to EUR 24,000 (to be multiplied by the number of workers involved with a maximum of 100) will apply.

Ester Vets, Lawyer – Senior Associate Claeys & Engels