On 27 June 2014, the National Confederation of Executives (Nationale Confederatie van het Kaderpersoneel/Confédération Nationale des Cadres) and a number of individuals (“NCE”) brought an action for annulment before the Constitutional Court challenging Articles 81, 88 and 92 of the Law of 26 December 2013 regarding the implementation of the unified status of blue collar and white collar workers regarding the notice periods, the first day of unpaid sick leave and accompanying measures (Wet betreffende de invoering van een eenheidsstatuut tussen arbeiders en bedienden inzake de opzeggingstermijnen en de carenzdag en begeleidende maatregelen/Loi concernant l’introduction d’un statut unique entre ouvriers et employés en ce qui concerne les délais de préavis et le jour de carence ainsi que les mesures d’accompagnement) (the “Law”).
NCE claimed that Article 92 of the Law infringes Article 16 of the Constitution and Article 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (the “Protocol”). Both provisions protect the right to property. According to the plaintiff, Article 92 of the Law deprives employees of their possessions. Article 92 of the Law stipulates that an employee with a notice period or notice indemnity equal to 30 weeks or more will receive a termination package that consists of a notice period or notice indemnity for two thirds. The remaining one third will be replaced by outplacement measures. According to NCE, these measures, if at all valid, should be determined by the social stakeholders.
The Constitutional Court held that Article 92 of the Law does not change the total termination package, but only its composition. As a result, there is no expropriation.
The Constitutional Court then addressed a further issue raised by Article 1 of the Protocol which does not only provide for protection against expropriation but also against any form of regulation of the use of property. A change in legislation that modifies legitimate expectations could qualify as an interference with the right to property. Any such interference should be proportionate, but the Member States have a broad margin of appreciation.
The Constitutional Court was of the opinion that the modifications to the termination rules were necessary in view of its earlier judgment of 7 July 2011, which had ordered Parliament to abolish the discriminatory differences between white and blue collar workers (See VBB on Belgian Business Law, Volume 2011, No. 7, p. 12 and Volume 2013, No. 8, p. 17, available at www.vbb.com).
The Constitutional Court added that the outplacement measures are both in the public interest and in that of the employee. These measures are also proportionate, because they are limited to the value of one third of the termination package and because there is a guaranteed minimum of 26 weeks’ notice period or notice indemnity. Therefore, the Constitutional Court held that Article 1 of the Protocol is not violated.
NCE also contended that Article 92 of the Law infringes Articles 10 and 11 of the Constitution because this provision creates an unjustified distinction between employees with a notice period or notice indemnity equal to or above 30 weeks and employees with a notice period or notice indemnity below that threshold. The first category is obliged to make use of the outplacement measures while the second category is not. There is an additional distinction between the employees with a notice period and those with a notice indemnity, because Articles 81 and 88 of the Law provide that only the employees with a notice indemnity are obliged to contribute to the financing of outplacement through a four-week reduction in their indemnity.
The Constitutional Court dismissed that argument as well and held that the difference in treatment is based on an objective criterion. The legislator has relied on the duration of the notice period or the corresponding notice indemnity to determine which employees are entitled to the termination package and which are not. This distinction is, according to the Constitutional Court, justified, because employees with a higher seniority (and thus entitled to a higher notice period or indemnity of notice) will require more help to find new employment.
The Constitutional Court went on to assert that the distinction between employees entitled to a notice period and those entitled to a notice indemnity is equally based on an objective criterion. Furthermore, both categories of employees are comparable and it is not possible to charge the outplacement cost to employees who benefit only from a notice indemnity.
The Constitutional Court also rejected the argument that Article 92 of the Law violates Article 23 of the Constitution and Article 4 point 4 of the European Social Charter (revised). The Constitutional Court held that the protection of the dismissed employee is not drastically reduced by the Law. Only the composition of the notice period or notice indemnity changed.
Finally, NCE claimed that the outplacement measures do not fall under the jurisdiction of the Federal Government. The Constitutional Court disagreed once more as these measures form part of employment law which is a federal matter.
