Commercial court states that an employer may not oblige a job candidate to provide a certificate of good conduct

Requesting potential employees to provide a certificate of good conduct has been a long-standing practice for many Belgian employers.

However, this practice has given rise to a number of questions, mainly with respect to its compatibility with the general prohibition contained in the Data Protection Act of 8 December 1992 (DPA) on the processing, in particular, of criminal data (including information about convictions) and, in general, of personal data pertaining to pending or threatened litigation.

In an opinion of 11 February 2002, the Belgian Privacy Commission emphasized that the DPA in principle prohibits the processing of data arising from a certificate of good conduct and that the employer can only examine such a certificate with the individual's consent and, in any case, cannot make a copy or record of any information contained therein.

In a judgment of 17 December 2009, the Charleroi Commercial Court re-examined this issue. In the case brought before the court, a temp agency was claiming the payment of invoices from a client. The client refused to pay, arguing that one of the agency's temporary employees had stolen from it and had a criminal record, which the agency could have discovered had it requested a certificate of good conduct from the employee concerned.

The court ruled that the company could not refuse to pay the temp agency's invoices on the above ground since the DPA does not allow the processing of data pertaining to past convictions. Therefore, the temp agency, in its capacity as the employer, was not authorised to request such a certificate from the employee.