The law introducing the Social Criminal Code has been published in the Belgian Official Gazette on 1 July 2010. By introducing the Social Criminal Code the legislator aims at establishing a clear and coordinated whole of the sanctions that may be imposed in case of violation of the employment and industrial relations legislation and of the social security legislation.
For a very large number of statutory and regulatory obligations laid down in the employment and industrial relations legislation and the social security legislation administrative fines or criminal sanctions may be imposed. The administrative fines have been bound together in the law of 30 June 1971. Nevertheless, this has not prevented a very vast variety as far as the amounts of the possible administrative fines are concerned. Possible criminal sanctions are even far less surveyable because each of them has been laid down each time separately in the laws concerned. The result thereof is a whole spectrum of criminal fines and prison sentences that may largely defer from each other. Also the rules regarding the procedures to be followed are spread over the Code of Civil Procedure, the Code of Criminal Procedure and the legislation relating to the inspection services.
The Social Criminal Code (apart from the modifying stipulations and the cancelling stipulations, 237 articles in total) aims at turning this obscure mess into a coordinated whole by 1) bringing together the stipulations relating to the three phases of the process leading to a possible implementation of sanctions (investigation – decision – prosecution); 2) summing up all violations of the social criminal legislation exhaustively in a thematic classification; and 3) subdividing the sanctions in 4 levels depending on the deemed seriousness of the violations. It needs to be taken into consideration that, as a result of the federal structure of the state, the Social Criminal Code punishes / may punish only violations of the social legislation falling within the competence of the federal authorities.
As to the investigation phase, the inspection departments maintain their important role, as already expanded in 2006. Nevertheless, it is explicitly provided that they may use their competences only in order to track down violations included in the Social Criminal Code and that the means used for such tracking down must be in proportion to the needs of the investigation. Additional measures have been provided for aiming at the protection of the person or the institution that is subject to the investigation. These protective measures also apply to the administrative phase of the investigation. The legislator has been inspired in this connection by the law-Franchimont. For a number of investigating measures, the inspection departments will in the future have to call in advance on the investigating magistrate, who replaces the police court judge.
To the extent criminal sanctions are provided for, the Public Prosecutor decides in first instance on the actions to be taken with respect to a violation. In such case, the competent Administration may decide on whether or not imposing administrative fines only either if the Public Prosecutor decide not to prosecute the case or if the Public Prosecutor did not communicate his decision to the competent Administration within 6 months.
The criminal court of first instance has jurisdiction over criminal prosecution. The employment tribunals decide upon litigations concerning administrative fines.
All violations and infringements that may be subject to an administrative fine and/or a criminal sanction are brought together in Book II of the Social Criminal Code in a thematic classification: violations against the person of the employee, violations relating to working time, violations in connection with other working conditions, illegal labor, not-reported labor, violations in connection with social documents, violations against the industrial relations legislation, violations relating to the inspection, violations against the social security legislation, violations involving forgery, the use of falsified documents, of incorrect or incomplete declaration and fraud in social criminal law.
By this method of operating problems in connection with the criminal legality principle are mostly avoided. At present, punishable facts are described in a number of laws in a general way such as “all violations of the stipulations of this law and its implementing orders are subject to punishment by a punishment of …”. By defining the punishable fact in a more refined way, legal security increases and the punishment may better take into consideration the seriousness of the violation.
While a very large variety of administrative fines, criminal fines and prison sentences is characteristic for the current legislation, the Social Criminal Code introduces 4 levels of sanctions, which apply, in accordance with the deemed seriousness of the infringement, to the violations described in Book II of the Social Criminal Code:
Sanction
Prison sentence
Criminal fines
Administratif fines
Level 1
not applicable
not applicable
€ 10 - € 100 or € 55 - € 550 incl. surch.
Level 2
not applicable
€ 50 - € 500 or € 275 - € 2.750 incl. surch.
€ 25 - € 250 or € 137,50 - € 1.375 incl. surch.
Level 3
not applicable
€ 100 - € 1.000 or € 550 - € 5.550 incl. surch.
€ 50 - € 500 or € 275 - € 2.750 incl. surch.
Level 4
6 months - 3 years
€ 600 - € 6.000 or € 3.300 - € 33.000 incl. surch.
€ 300 - € 3.000 or € 1.650 - € 16.500 incl. surch.
It may sound strange but it is a fact that the Social Criminal Code results in a depenalization because the violations of level 1 are subject only to administrative fines. It must be stressed in general that the importance of administrative fines increases considerably, not only because a large number of infringements are punishable only by administrative fines, but also because all violations, laid down in the Social Criminal Code, may be subject to administrative fines: contrary to the current legislation, administrative fines may also apply to violations of the social security legislation and violations of the regulations on vacation and vacation pay.
This new, uniform system of the Social Criminal Code results in a heavier punishment in some cases and in a decrease of possible sanctions in other cases: the minimal prison sentence of 6 months is considerably higher than the one laid down in the current legislation, generally providing for a minimal prison sentence of 8 days; the system of surcharges now also applies to administrative fines (current factor: 5.5), but, even when taken into account these surcharges, the administrative fines are lower in a large number of cases than the ones provided for in the current system; only administrative fines apply to all infringements of level 1, while in the current system these violations may also be subject to criminal sanctions (as an example reference can be made to the failure to comply with a collective labor agreement rendered compulsory by royal decree); if explicitly provided for, administrative fines as well as criminal fines may be multiplied by the number of workers involved, but the Social Criminal Code limits this factor in any case to 100; for criminal sanctions as well as for administrative fines, mitigating circumstances may be taken into consideration.
Special criminal sanctions (prohibition of exploitation – professional prohibition – closure of establishment) remain applicable in the case of violations of level 3 and 4, to the extent such sanctions have been explicitly provided for in the legislation concerned.
The Social Criminal Code becomes effective at the date to be determined by the King, but at the latest on 1 July 2011. It is generally expected that the effective date of coming into force will not precede 1 July 2011 because the preparation of the implementing orders shall take considerable time. An exception to the above applies for the violations of the collective labor agreements rendered compulsory by royal decree, to the extent such violations are not subject to punishment pursuant to an other stipulation of the Social Criminal Code: for these violations the Social Criminal Code will become effective two years after the effective date of commencement
