To tackle illegal employment through subcontracting more effectively, the Flemish government improved chain liability, and introduced a duty of care. According to this duty of care, companies working with subcontractors in the Flemish Region are obliged to request certain data from these subcontractors (Cf. Decree of 27/10/2023).  

The Flemish Government's Implementing Decree was published in the Belgian Official Gazette on June 4, 2024, containing a checklist of the specific data to be requested. The decision will enter into force on January 1, 2025. 

Checklist

The new law will require employers to request the following information from subcontractors: 

• Valid passport/similar travel document of all third-country nationals employed by the direct subcontractor or performing self-employed professional activities on behalf of the direct subcontractor. If the direct subcontractor is a natural person who is a third-country national, proof of their valid passport or equivalent travel document should also be included.
• If the third-country national has neither permission to work in Belgium nor a Belgian residence permit, the following is required:
  
  • proof of the right of residence or residence permit for more than three months in the EEA member state or Switzerland where the third-country nationals reside;
  • Form L1 if the activities fall within a posting within the scope mentioned in Article 138 of the Program Law (I) of 27 December 2006;
  • proof of the document issued by the foreign institution certifying that the social security legislation of that country remains applicable during employment in Belgian territory. If this document cannot be provided at the start of the collaboration, it suffices to submit the receipt of the application for the aforementioned document.
• If the third-country national does have permission to work in Belgium and a Belgian residence permit, the following is required:
  
  • proof of legal residence;
  • proof of a valid Belgian work permit or professional card;
  • Dimona declaration.¹

Application under development

The documents discussed above should be verified through an application before collaboration begins. However, this application is currently being developed. The data that cannot be accessed through the application should be requested from the direct subcontractor.

To do for you!

Liability (in this case chain liability) is usually addressed through clauses in contracting agreements. With this new legislation, such clauses will no longer suffice, and the practice of requesting additional data and documents related to the employment of foreign workers and self-employed persons will have to be established. As such, it would be advisable to update the agreements.