The Act of 29 February 2016 on the completion and amendment of the Social Criminal Code and concerning various provisions of social criminal law (the "Act") (Official Gazette 21 April 2016) entered into force on 1 May 2016. The initiative to coordinate the social enforcement law, which was initiated five years ago, is thus continued. The Act updates and fine-tunes the Social Criminal Code and deals with the criticism that some of its provisions could not stand the test against the criminal legality principle.
The Social Criminal Code
The Social Criminal Code, which was introduced by the Act of 6 June 2010 and entered into force on 1 July 2011, has bundled the different legal acts concerning social enforcement law in one code. The Code consists of a first part, covering prevention, identification and prosecution of infringements and penalisation in general, and a second part, which deals with the particular infringements and the respective penalties related to each infringement. The penalties were simplified by the introduction of 4 levels of sanctions (the amounts mentioned below include the surcharges):
- level 1: an administrative fine of between EUR 60 and EUR 600;
- level 2: either a criminal fine of between EUR 300 and EUR 3,000 or an administrative fine of between EUR 150 and EUR 1,500;
- level 3: either a criminal fine of between EUR 600 and EUR 6,000 or an administrative fine of between EUR 300 and EUR 3,000; and
- level 4: either a prison sentence of between six months and 3 years and a criminal fine of between EUR 3,600 and EUR 36,000 or one of these sanctions alone, or an administrative fine of between EUR 1,800 and EUR 18,000.
The Act updates and fine-tunes the Social Criminal Code. The Act continues the coordination work with regard to social enforcement law by incorporating criminal provisions from several social acts into the Social Criminal Code. Moreover, the Act deals with the criticism that some criminal provisions could not stand the test against the criminal legality principle. This principle requires that the legislator determines in sufficiently precise and clear wording which actions are criminally sanctioned in order to adequately assess the criminal consequences of the behaviour and to avoid an overly broad assessment power for the judge and a sense of arbitrariness. The criminal provisions, in particular concerning the obligations in respect of well-being at the workplace, are worded more clearly and precisely.
Most important amendments
Well-being at work
The broadest amendment concerns well-being at work. The Act aligns the criminal provisions with the new legal framework concerning psychosocial risks at work. Among other things, the Act increases the sanctioning level from level 2 to level 3 in case of non-compliance with the provisions on risk analysis relating to psychosocial risks at work (article 121) and from level 1 to level 3 (and in certain cases even to level 4) when, for example, no appropriate preventive measures are taken (article 122). Furthermore, the Act introduces certain new provisions, including concerning the prevention adviser for psychosocial aspects and the confidential counsellor at work ("vertrouwenspersoon"/"personne de confiance") (articles 122/1 to 122/5).
The Act introduces criminal provisions concerning infringement in relation to the attendance registration at temporary or mobile construction sites.
The criminal provisions concerning smoking at the workplace, in particular the definitions of the different infringements related to the introduction of the smoking ban and the installation of a smoking room which has to meet certain requirements, are amended (article 133). The level of sanctions remains unchanged (level 3).
Lastly, the Act adds an incrimination concerning the obligations to inform and consult the committee for prevention and protection at work. Henceforth, failure to inform and consult the committee for prevention and protection at work in accordance with the applicable provisions is also penalised with a sanction of level 2.
Temporary work, temporary agency work and loaning of personnel
With regard to temporary work, temporary agency work and loaning of personnel, the Act inserts article 176/1, which brings the position of the user to the same level as the position of the employer and thus sanctions a user who infringes the legal provisions concerning the regulation and protection of employment which apply at the workplace in the same manner as the employer.
Occupational pensions
The Act reintroduces the incrimination provided for in the Act of 28 April 2003 concerning occupational pensions (Book 2, Chapter 9).
Undeclared work
The Act completes article 181 of the Social Criminal Code with incriminations related to violation of the rules in respect of the immediate declaration of employment ("Dimona" declaration) and provides for a sanction of level 4.
The Act imposes an administrative fine (sanction level 1) on anyone who intentionally carries out undeclared work (article 183/1).
Level 1 sanctions
In the criminal provisions which impose a sanction of level 1, the Act maintains the reference to the employer, but deletes the words "his employee or his agent". Therefore, sanctions of level 1 can only be imposed on the employer, even in case of infringements by the employee or the agent of the employer.
Work in progress
It is clear from the legislative process that this update is not to be considered the end point of the amending process, but as a necessary intermediate step preceding initiatives "addressing some fundamental issues in the coming term".
The agenda for future amendments includes, among other things, evaluation of the penalties for several infringements, the issue concerning the non bis in idem principle (in case of concourse ("samenloop"/"concours") of several employment and social security acts) and consideration of article 189 in respect of sanctioning the violation of collective labour agreements that have been declared generally applicable.