Introduction and extension of scope

When the new regulations come into force, (sub)contractors will have an additional, extra duty of care when working with foreign nationals in Flanders in the context of secondment. The intention is to counteract the current erosion of liability.

From then on, ‘foreign nationals’ will not only include European and non-European nationals, but also independent service providers. Specifically, this refers to direct subcontractors who themselves provide services as self-employed persons. Practice will have to show whether this also covers that situation when a subcontractor has self-employed natural persons provide services on its instructions.

Additional obligations

To avoid criminal sanctions if the obligations were not complied with, it was sufficient under the old rules that:

  • the contracting agreement included that the contractor confirmed not to employ third-country nationals without holding a valid residence or work permit; and
  • the employer (or contractor in the case of subcontractors) was not aware of illegal employment.

To avoid escaping these obligations purely through the wording in the contracting agreement, an additional obligation - being the duty of care - will be introduced. The other two obligations, will remain in place without delay and will not be replaced by the duty of care.

Specifically, this new obligation means that prior to the start of a contracting activity, the (sub)contractor must request the following information from the direct (sub)contractor, with the information to be requested being different depending on whether EU nationals are being worked with or not:

1. For EU nationals:

    • Valid passport;
    • Proof of the right of residence or residence permit of more than 3 months in the member state of the EEA or Switzerland where the third-country nationals reside;
    • The L1 form if applicable;
    • The certificate of affiliation to a social security institution abroad, issued by the foreign institution confirming that the social security legislation of that country remains applicable during the employment in Belgium (A1 or CoC form).

2. For non-EU nationals:

    • Proof of a valid passport or equivalent travel document;
    • Proof of lawful residence;
    • Proof of a valid Belgian work permit or professional card;
    • Dimona (if applicable).

An online tool will also be created in which certain of these documents can be uploaded per employee by the direct subcontractor so that the (sub)contractor can verify that the documents required by law are in the possession of the direct subcontractor. Documents that are not in this online tool must be requested by the (sub)contractor.

If the direct subcontractor does not provide these documents, the (sub)contractor must request these documents one more time. If the documents are still not provided by the direct contractor at that time, the (sub)contractor is obliged to inform the social security administration. If the (sub)contractor does not do so, this may result in criminal sanctions being imposed as the (sub)contractor can be assumed to be aware of illegal employment at that time.

Points of attention

As indicated, this obligation exists to request these documents prior to the start of the contracting. According to the explanatory memorandum, it is not necessary to verify afterwards whether these data are still present: it is therefore a snapshot. In other words; the duty of care was met as soon as these data were there at the start of employment. Note: if other, new foreign nationals start working during the contracting period, it must again be verified whether these documents are present before the effective start of employment.

Moreover, the (sub)contractor must merely request these documents and ‘in principle’ not check them for correctness and validity. ‘In principle’ because, on the other hand, it is expected that certain data will be checked that they are correct, such as the duration of the residence permit.

In addition, the building contract will in principle not start until the documents are delivered and can be checked. Nevertheless, we recommend working with a deadline by which these documents must be delivered by the direct subcontractor after a first and second request.

Postponement of entry into force of new regulations

In the 11 December 2024 meeting of the Commission for Economy, Work, Social Economy, Science and Innovation, Flemish Minister of Work Zuhal Demir reported that the proposed entry into force of the new regulations on 1 January 2025 will not be practically possible. A draft Flemish government decree dated 20 December 2024 shows that the Flemish government intends to delay the entry into force of these new rules until 1 January 2026. Indeed, the required government database that will contain the documents to be uploaded by direct subcontractors is not yet operational. In addition, the decree that enrolls these new rules in the law of 30 April 1999 also still needs to be adapted to European regulations.

Conclusion

For now, the entry into force of these new regulations has been postponed to 1 January 2026. Consequently, construction contracts that are still concluded prior to the entry into force of the regulations are still subject to the old regulations, which means that the clauses in these contracts do not yet need to be adapted. Nevertheless, it is important to do this thinking ahead of time so that the entry into force of the new regulations can be anticipated.

Do not hesitate to contact someone from the Employment & Benefits team, we will be happy to help!