On 1 July 2010, the entirely new Employment Criminal Code was published in the official gazette. The legislation has been long in coming, and all players in the field of employment criminal law had long anticipated it.
The code’s aim is very ambitious, it being intended as a comprehensive, coherent ensemble of all offences in the field of employment and social security law. Previously, criminal provisions were always inserted as final provisions in the separate employment laws, which meant that the body of law as a whole was very scattered. Its vocation is to simplify the tariffs for penalties and administrative fines and it sets out specific procedural rules for these matters. Parliament has wanted here to offer an important aid to the government in its fight against employment fraud.
In the following, we give a concise summary of the most important features and innovations running through the Employment Criminal Code.
The most important features and innovations
1. Codification of the sources of law into a single coherent piece of legislation
The Employment Criminal Code consolidates all offences under employment statutes and the attendant penalties and administrative fines. The criminal provisions in the current employment laws are repealed and replaced by the provisions of the Employment Criminal Code by means of the following reference:
“Breaches of the provisions of this statute/these statutes and the decrees in implementation hereof shall be prosecuted, determined and punished in accordance with the Employment Criminal Code.”
However, parliament has not succeeded in drawing up an entirely comprehensive Employment Criminal Code. Given the multiplicity of criminal provisions in the field of employment law, this is hardly to be wondered at. Some criminal provisions have been overlooked (e.g. the criminal provisions in the Supplementary Pensions Act), and others fall within the legislative powers of the regions or municipalities (e.g. regarding industrial arbitration) and cannot therefore be comprised within the federal Employment Criminal Code.
2. Stricter observance of the parties’ rights to state their case and the legitimacy of prosecution measures
The Employment Criminal Code aims to extend the parties’ rights to state their case as enshrined in the general criminal law as far as possible to employment criminal law:
- the provisions of the Franchimont Act are made applicable to questioning by the employment inspectorate (the right to remain silent, the right to a copy of the interrogation transcript, and so on):
- investigating judges are now empowered prior to issuance of the search warrant, instead of the police court bench;
- appeal procedures are introduced against coercive measures imposed by employment inspectors (e.g. closure of a plant, confiscation, etc.).
Furthermore, in line with the legality principle for indictments, the factors constituting criminal conduct are clearly defined. Moreover, breaches of similar seriousness will carry the same penalty.
3. Extension of administrative fines
The system of administrative fines is extended to all breaches of employment criminal law, regardless of their seriousness.
4. Decriminalisation of minor offences and abolition of imprisonment as a penalty
Minor offences are decriminalised, i.e. they can only now carry an administrative fine as punishment.
Custodial penalties, which virtually all breaches of the employment legislation previously carried, have been abolished for a large number of offences. They remain for only the most serious of offences.
5. Four levels of penalty in the area of sentencing
Offences in the area of employment law and the penalties they carry are grouped into four categories according to seriousness. Each category is allotted a certain level of penalty, in substitution for the current 15 different administrative fines, 16 different custodial sentences and no fewer than 40 different criminal fines.
Level
Nature of offence
Administrative fine
Criminal penalty
Examples
1
Minor offences
Fine from 10 to 100 euros
/
Breach of obligations of a more administrative nature, e.g. reporting time credit details to the National Employment Office
2
Offences of medium serious-ness
Fine from 25 to 250 euros
Fine from 50 to 500 euros
Working time, night working
3
Serious offences
Fine from 50 to 500 euros
Fine from 100 to 1000 euros
Additional penalty
Loans of staff, social balance sheet, industrial accidents insurance
4
Very serious offences
Fine from 300 to 3000 euros
Custodial sentence of six months to three years
A criminal fine of 600 to 6000 euros
Additional penalty
Dimona, part-time working, employing foreign workers with residence permits
In addition, the Employment Criminal Code introduces three new penalties, viz.:
- closure of the business;
- prohibition against carrying on a business; and
- operating prohibitions.
These additional penalties are optional and temporary and are imposed only for the most serious offences (levels 3 and 4).
In future, by analogy with criminal fines, administrative fines will also carry multiplication coefficients. This means that all the aforementioned fines are multiplied by a factor of 5.5. On top of that, the rule remains that the fine is multiplied by the number of employees involved in the offence, for both criminal and administrative fines. Nonetheless, a uniform cap is set, and the total fine cannot exceed 100 times the maximum fine.
Finally, the penalties are sufficiently diversified to give courts the possibility of adjusting the punishment in line with the acts committed. The Employment Criminal Code makes express provision to allow courts to take account of mitigating circumstances in reducing the minimum fine or term of imprisonment. If the offences have been committed after prior notification from the employment inspector or if the offence has resulted in harm to workers’ health or an industrial accident, on the other hand, then the punishments are intensified.
6. Codification of the rules for administrative prosecutions
The Employment Criminal Code sets forth a number of procedural rules that are currently applied in practice (e.g. rules on the submission of defences and the right to inspect the prosecution file). As an additional guarantee, there is express mention and specification in the Employment Criminal Code of the obligation to state grounds for administrative decisions.
7. Adjustment of the powers of employment inspectors
The powers of the manpower inspectorate are aligned to the needs for better prevention and a more modern investigative policy. Employment inspectors are given a more active role in the search for information carriers and are given greater means to carry out checks in the field of IT.
8. Attention to prevention
Attention is also paid to prevention. The code therefore includes a separate “title” dealing with “policy in relation to prevention and oversight”. This part provides for the institution of a central Employment Information and Tracking Office, whose job will include taking necessary preventive measures to implement the policy laid down by the Cabinet in the fight against illegal work and employment fraud.
Coming into force of the Employment Criminal Code
The Employment Criminal Code has not yet come into force. For this, a royal decree is still required: the effective date has to be no later than 1 July 2011.
Practice will then have to show whether the statute’s objectives can be implemented and whether the wait has been worth it.
