Chain responsibility for illegal employment: New rules in Flanders from 2025

Illegal employment

Illegal employment occurs when a client or contractor hires a (sub)contractor from a third country (outside the EU) who employs workers or self-employed persons without the required residence and/or work permits.

Current legislation and upcoming changes

Currently, contractors and clients can limit their liability by including a written statement in the contract in which the (sub)contractor declares that it will not employ illegal workers.

Under the new rules, which come into force on 1 January 2025, such a statement will no longer be sufficient. Clients and contractors will now have an increased duty of care, requiring them to request certain documents from (sub)contractors employing third-country nationals.

Documentation required

The documentation required depends on the situation of the third-country national.

For intra-EU services: If a third-country national legally residing and working in another country of the European Economic Area (EEA) or Switzerland is posted to Belgium, the following documents must be provided

• A copy of a valid passport;

• A copy of proof of residence or a residence permit valid for more than three months in the EEA country or Switzerland;

• The Limosa form (if applicable);

• Form A1 or CoC (or proof of application).

For employment requiring a Belgian permit: If a third-country national requires a work permit (for employees) or a professional card (for self-employed persons) in Belgium, the following documents must be submitted

• A copy of a valid passport;

• A copy of proof of legal residence in Belgium;

• A copy of proof of authorisation to work in Belgium;

• Proof of the DIMONA declaration (if applicable).

If the (sub)contractor fails to provide these documents, the contracting authority or the contractor must request them again. If the (sub)contractor still fails to comply, the social inspection services must be informed.

Penalties for non-compliance

Clients and contractors who fail to comply with the new rules risk prosecution for illegally employing third-country nationals. Penalties include:

• A prison sentence between six months and three years;

• A criminal fine between €4,800 and €48,000 or an administrative fine between €2,400 and €24,000.

The fines are multiplied by the number of employees involved, up to a maximum of 100 employees.

Action points for clients and contractors

From 1 January 2025, clients or contractors who appoint a (sub)contractor who employs third-country nationals must:

• Include a clause in the contract stating that the (sub)contractor will not employ illegal workers;

• Request the above documents from the (sub)contractor. If these are not provided, further steps must be taken, such as informing the social inspection services.

With these stricter rules, the Flemish government aims to intensify the fight against illegal employment.