The codification implemented by the Social Penal Code aims to clarify the procedures and penalties available to deal with violations of social legislation. One notable innovation is that both criminal and administrative fines can be used as alternatives for each other.
As mentioned in the general introduction, the main objective of the Social Penal Code (hereinafter known as the “SPC”) is codification. Prior to the introduction of the new SPC, if the violation of a social provision was penalized, the appropriate penalty could only be found in the act containing that specific social legislation.
Since codification, three systems have been incorporated into the SPC in order to deal with violations of social legislation. These are criminal prosecution, legal proceedings before the labour courts and an administrative procedure involving civil servants.
1.- Four distinct levels of penalties
Of all the social rules and regulations provided for in current Belgian social legislation, violations are nearly always criminally punishable. However, alternative punishment does exist. The penalties and alternative punishments were dispersed throughout social legislation.
The SPC has standardized penalties and divided them into four levels. The level of the penalty will depend on the seriousness of the violation:
2.- Imprisonment as a penalty
This table illustrates the change of course of the SPC in the current legislation, as imprisonment will now only be possible for the most serious of violations, such as, but not limited to, fraud or forgery with regard to certain types of social documents.
3.- Specific new penalties
The SPC has, in Articles 106 and 107, also introduced two new specific types of penalties for serious violations, namely level 3 and 4 violations. Said penalties are grouped into, firstly, an exploitation prohibition and the closure of business and, secondly, a professional ban and the closure of business. These penalties can be imposed for a duration ranging from one month up to three years.
4.- Administrative fines
All level 1 violations (minor violations) will, as from the implementation of the SPC, only be punishable by imposing administrative fines. Neither criminal fines nor criminal proceedings will be able to be brought for these violations. Additionally, for other violations there will be a choice with regard to the imposing of a criminal fine or an administrative fine.
The competent civil servant working for the Federal Service for Employment will be set the task of imposing administrative fines. However, an administrative fine can only be imposed if the Labour Prosecutor has not initiated criminal proceedings.
With regard to the formalities surrounding the manner in which administrative fines are imposed, these have also been codified by the SPC to ensure due process. The right to a proper defence has thus been strengthened as this codification has put into place the terms and remedies available to those employers in violation of the SPC.
Another aspect in which the SPC has changed current legislation is that the decision to impose an administrative fine by the competent civil servant will henceforth be legally enforceable. No longer will the civil servant have to seek an enforceable ruling after having imposed the administrative fine. From the moment of the notification of the administrative fine, the employer must pay within three months, barring an appeal made by the latter. If the employer lodges a timely appeal - within two months of the notification - the enforcement will be suspended until an appeals ruling has been issued.
5.- Multiplication
Both types of fines will need to be multiplied by a certain factor in order for the exact amount of the fine to be calculated (i.e. the so-called “décimes additionnels” or “opdeciemen”, currently amounting to 5.5). Additionally, the SPC provides that certain fines can be multiplied by the number of employees for which a violation has been ascertained.
