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11 FEBRUARY 2013. - Act providing for sanctions and measures against employers of third-country nationals in illegal residence (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - Introductory provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act partially transposes Directive 2009/52/EC of the European Parliament and the Council of 18 June 2009 providing minimum standards for sanctions and measures against employers of third-country nationals in irregular residence.
CHAPTER 2. - Definitions
Art. 3. For the purposes of this Act:
1° national of a third country: any person who is not a citizen of the Union within the meaning of Article 17, § 1^er, of the Treaty establishing the European Community, or a person enjoying community law to freedom of movement, as defined in article 2, point 5, of the Schengen Border Code;
2° illegal stay: the presence in the territory of a foreigner who does not meet or fulfil the conditions of access to the territory or residence.
CHAPTER 3. - Payment of arrears by employers
Art. 4. § 1^er. The employer established in Belgium and who, as part of a labour contract, occupies a citizen of a third country on an illegal stay, pays him compensation equivalent to that required to pay to a worker legally occupied in the context of a comparable working relationship under one or more sources of obligations in labour relations between employers and workers referred to in section 51 of the Act of December 5, 1968 on collective agreements by
§ 2. The employer who is not established in Belgium but who occupies in it, within the framework of a contract of work, a national of a third country in an illegal stay pays him compensation equivalent to that which he is obliged to pay to a worker legally occupied within the framework of a comparable labour relationship under one or more sources of obligations in the labour relations between employers and workers referred to in Article 51 of the Law of 5 December 1968
Art. 5. The employer who occupies in Belgium a third-country national illegally residing pays the competent services an amount equal to the taxes and social security contributions that he would have paid if that third-country national had been legally occupied, including the late penalties and possible administrative fines.
Art. 6. The employer who has held a third-country national in Belgium who is illegally staying, pays, if any, the costs resulting from the sending of the remaining wages in the country in which a third-country national has returned or has been returned.
Art. 7. When a third-country national in illegal residence is occupied in Belgium in the bonds of a contract of employment, he is presumed, until proven otherwise, to have carried out benefits for at least three months.
CHAPTER 4. - Facilitation of complaints
Art. 8. May be brought to justice in disputes to which the application of this Act may give rise to the defence of the rights of a third-country national who is on an illegal stay in Belgium who is there or who was in it:
1° the representative organizations of the workers and employers referred to in Article 3 of the Act of 5 December 1968 on collective labour agreements and parity commissions;
2° the representative organizations referred to in the Act of 19 December 1974 organizing the relations between the public authorities and the trade unions of the agents of those authorities;
3° the representative trade union organizations within the designated trade union body for the administrations, services or institutions for which the law of 19 December 1974 regulating the relations between the public authorities and the unions of the agents under these authorities is not applicable;
4° the Centre for Equal Opportunities and the Fight against Racism, as well as any establishment of public utility and any association determined by the King who has, on the day of the events, the legal personality for at least three years and whose statutes provide for the defence of the interests of nationals of a third country.
The action of these organizations, institutions of public utility and associations does not affect the right of a third-country national to act personally, to join the action or to intervene in the case.
Art. 9. Organizations, institutions of public utility and associations referred to in Article 8 may act without any authorization of a national of a third country in an illegal stay.
Art. 10. Assistance to third-country nationals for filing a complaint is not considered an aid to the illegal stay referred to in section 77 of the Act of 15 December 1980 on access to territory, residence, establishment and removal of aliens.
CHAPTER 5. - Amendments
Section 1^re. - Caisse des dépôts et consignations
Art. 11. In Article 5 of the Act of 12 April 1965 concerning the protection of the remuneration of workers, as amended by the laws of 27 June 1985, 26 June 1992 and 27 December 2005, a § 4/1 is inserted, as follows:
§ 4/1. When the worker is a national of a third country on an illegal stay referred to in the Act of 11 February 2013 providing for sanctions and measures against employers of third-country nationals in illegal residence and that his postal address and the data relating to his bank account or postal cheques are unknown to the employer, the employer pays the remuneration that he has not yet paid, to the account of postal cheques of the Caisse des Dépôts et
Section 2. - Employer obligations
Art. 12. Section 2 of the Act of 30 April 1999 on the occupation of foreign workers is supplemented by a 4°, which reads as follows:
"4° national of a third country: any person who is not a citizen of the Union within the meaning of Article 17, § 1^er, of the Treaty establishing the European Community, or a person enjoying community law to freedom of movement, as defined in Article 2, point 5, of the Schengen Border Code.".
Art. 13. In the same Act, an article 4/1 is inserted, as follows:
"Art. 4/1. The employer who wishes to occupy a third country national must:
1° verify, in advance, that the residence permit has a valid residence permit or other residence permit;
2° provide the competent inspection services with a copy or data of the residence permit or other residence permit at least during the period of employment;
3° declare the entry and exit of service in accordance with the legal and regulatory provisions. "
Art. 14. In article 11, paragraph 2, of the Act, as amended by the Act of 6 June 2010, the words "and officials designated by the competent authorities" are inserted between the words "social inspectors" and the words "powers".
Art. 15. In section 13 of the Act, as amended by the Act of 6 June 2010, the following amendments are made:
1st paragraph 1^er is replaced by the following:
"Whoever committed an offence referred to in section 175 of the Social Criminal Code is jointly and severally responsible for the payment of repatriation fees, as well as a lump sum allowance for the accommodation, residence and health care expenses of the foreign workers concerned and those of their family members who are illegally staying in Belgium";
2° in paragraph 2, the words "the allowances" are replaced by the words "this allowance".
Art. 16. In Article 175 of the Social Criminal Code, a § 1^er/1, as follows:
§ 1^er/1. A level 4 penalty is imposed on the employer, the employee or the agent who, in contravention of the Act of April 30, 1999 on the occupation of foreign workers, did not, during the occupation of a third-country national,
1° verified before it has a residence permit or other valid residence permit;
2° provided to the competent inspection services a copy or data of its residence permit or other valid residence permit, at least during the period of employment;
3° declared its entry and exit of service in accordance with the legal and regulatory provisions.
If the residence permit or other residence permit submitted by the foreign national is a false, the penalty referred to in paragraph 1^er is applicable if it is proven that the employer knew that this document was a false.
The fine is multiplied by the number of workers involved.
The judge may also pronounce the penalties provided for in articles 106 and 107. "
Section 3. - Rules on liability
Sub-section 1^re. - Solidarity
Pay still due
Art. 17. In Article 35/1, § 1^er, of the Act of 12 April 1965 concerning the protection of the remuneration of workers, inserted by the Act of 29 March 2012, the words "of this chapter" are replaced by the words "of this section".
Art. 18. In article 35/2, § 2, of the same law, inserted by the law of 29 March 2012, the words "of this chapter" are replaced by the words "of this section".
Art. 19. In section 35/5 of the Act, inserted by the Act of 29 March 2012, the words "This chapter" are replaced by the words "This section".
Art. 20. Chapter VI/1 of the same Act, the current text of which will form section 1 entitled "General Law", is supplemented by a section 2 entitled "Special Legislation in the event of occupation of a third-country national in an illegal stay".
Art. 21. In section 2, inserted by section 20, an article 35/7 is inserted, as follows:
"Art. 35/7. For the purposes of this section,:
1° national of a third country: any person who is neither a citizen of the Union within the meaning of Article 17, § 1, of the Treaty establishing the European Community, nor a person enjoying the Community right to free movement, as defined in Article 2, point 5, of the Schengen Border Code;
2° illegal stay: the presence in the territory of a foreigner who does not meet or fulfil the conditions of access to the territory or residence;
3°: any natural or legal person who gives order, for a price, to execute or carry out activities;
4° Contractor: any natural or legal person who undertakes to execute or enforce, for a price, activities for an order donor;
5° Principal Contractor: the Contractor who, in the event of a subcontractor chain, is not an intermediate contractor;
6° intermediate contractor: each subcontractor in relation to the following subcontractors;
7° subcontractor: any natural or legal person who engages either directly or indirectly at any stage, to perform or enforce for a price an activity or part of activity entrusted to the contractor;
8° inspection: social inspectors referred to in Article 17 of the Social Criminal Code;
9° employer reported: the employer contractor or the employer contractor concerned by the written notification referred to in section 49/2 of the Social Criminal Code;
10° pay still due: the remuneration that is due to the citizen of a third country who is illegally resident by his employer but has not yet been paid by that employer, except for the allowances to which a third-country national in illegal residence is entitled because of the termination of the employment contract".
Art. 22. In the same section 2, an article 35/8 is inserted as follows:
"Art. 35/8. Derogation from section 1^re of this chapter, solidarity liability for the occupation of a third-country national in an illegal stay in Belgium is governed by this section.
Sections 1200 to 1216 of the Civil Code apply to the solidarity liability referred to in this section.
For the purposes of sections 3 to 6, 10, 13 to 16, 18 and 23 of this Act, the instigator shall be assimilated to the employer.
The postal or banking tax may not be deducted from the remuneration still payable by the solidarity official within the meaning of this section.".
Art. 23. In the same section 2, an article 35/9 is inserted, as follows:
"Art. 35/9. The contractor, in the absence of a subcontractor chain, or the intermediary contractor, in the event of such a chain, are jointly and severally responsible for the payment of the remuneration still due by their direct subcontractor.
Derogation from paragraph 1^er, the contractor and the intermediary contractor are not jointly and severally responsible if they are in possession of a written statement in which their direct subcontractor certifies that it does not occupy and will not occupy a third country national in an illegal stay.
By derogation from paragraph 2, the Contractor and the Intermediary Contractor shall be jointly and severally liable from the time when they are aware that their direct subcontractor occupies one or more nationals of a third country on illegal stay. Proof of this knowledge may be the notification referred to in Article 49/2 of the Social Criminal Code".
Art. 24. In the same section 2, an article 35/10 is inserted, as follows:
"Art. 35/10. In the event of the existence of a chain of subcontractors, the principal contractor and the intermediate contractor, who are aware that their indirect subcontractor occupies one or more nationals of a third country on illegal stay, are jointly and severally responsible for the payment of the remuneration still due by this indirect subcontractor and that concerns the work benefits made to their benefit from such knowledge. Proof of this knowledge may be the notification referred to in Article 49/2 of the Social Criminal Code".
Art. 25. In the same section 2, an article 35/11 is inserted, as follows:
"Art. 35/11. § 1^er. The principal who is aware of the fact that his contractor occupies one or more nationals of a third country on an illegal stay, in the absence of a subcontracting relationship, is jointly and severally responsible for the payment of compensation still payable by his contractor with respect to the work benefits performed, from such knowledge within the framework of the contract he entered into with that contractor. Evidence of this knowledge may be the notification referred to in Article 49/2 of the Social Criminal Code.
The principal who is aware of the fact that the subcontractor who intervenes directly or indirectly after his or her contractor occupies one or more nationals of a third country on illegal stay, is, in the case of a subcontractor relationship, in solidarity with the payment of the remuneration still payable by that subcontractor with respect to the work benefits performed, to his or her benefit, from such knowledge. Evidence of this knowledge may be the notification referred to in Article 49/2 of the Social Criminal Code.
§ 2. Paragraph 1^er does not apply to a natural person donor who conducts activities for private purposes only. ".
Art. 26. In the same section 2, an article 35/12 is inserted, as follows:
"Art. 35/12. The reported employer shall have a copy of the written notification referred to in section 49/2 of the Social Criminal Code, at the place referred to in section 49/2, paragraph 4, 3°.
A solidarity official referred to in sections 35/9 to 35/11 shall display at the place referred to in section 49/2, paragraph 4, 3°, of the same Code a copy of the notification received if the employer reported did not make the display referred to in the same paragraph 1^er".
Art. 27. In the same section 2, an article 35/13 is inserted, as follows:
"Art. 35/13. Can be brought to justice in disputes to which the application of this section may give rise to the defence of the rights of a third-country national in an illegal stay in Belgium who is there or who was occupied therein:
1° the representative organisations of the workers and the representative organisations of the employers referred to in Article 3 of the Act of 5 December 1968 on collective labour agreements and parity commissions;
2° the representative organizations referred to in the Act of 19 December 1974 organizing the relations between the public authorities and the trade unions of the agents of those authorities;
3° the representative trade union organizations within the designated trade union body for the administrations, services or institutions for which the law of 19 December 1974 regulating the relations between the public authorities and the unions of the agents under these authorities is not applicable;
4° the Centre for Equal Opportunities and Combating Racism, as well as any establishment of public utility and any association determined by the King referred to by or under Article 8, paragraph 1^er, 4°, of the law of 11 February 2013 providing for sanctions and measures against employers of third-country nationals in illegal residence.
The action of these organizations, institutions of public utility and associations does not affect the right of a third-country national to act personally, to join the action or to intervene in the case.
Organizations, public utility institutions and associations referred to in paragraph 1^er may act without any authorization of a third-country national in an illegal residence.
Art. 28. In article 21 of the Social Criminal Code, as amended by the Act of 29 March 2012, a 4°/2 is inserted, as follows:
"4°/2. transmit the written notification referred to in Article 49/2 of this Code to contractors and policy makers referred to in sections 35/9 to 35/11 of the Act of 12 April 1965 concerning the protection of workers' remuneration".
Art. 29. In book 1^er, title 2, chapter 2, of the same Code, inserts a section 3/2, entitled:
"Section 3/2. The special competence of social inspectors with regard to the occupation of a third-country national who is illegally staying in Belgium".
Art. 30. In section 3/2, inserted by article 29, an article 49/2 is inserted, as follows:
"Art. 49/2. Written notification of the occupation of a third-country national in illegal residence in Belgium
Social inspectors may inform in writing the contractors referred to in sections 35/9 and 35/10 of the Act of 12 April 1965 concerning the protection of the remuneration of workers that their direct or indirect subcontractor occupies one or more third country nationals on illegal stay.
Social inspectors may inform in writing the donors referred to in section 35/11 of the Act of 12 April 1965 concerning the protection of the remuneration of workers that their contractor or subcontractor occupies one or more third-country nationals in illegal residence.
This notification refers to:
1° the number and identity of third country nationals in illegal residence whose inspection found that they provided benefits in the course of the activities that the recipient of the notification does;
2° the identity and address of the employer who held third country nationals in illegal residence referred to in paragraph 3, 1°;
3° where third-country nationals in illegal residence have provided the benefits referred to in paragraph 3, 1°;
4° the identity and address of the recipient of the notification.
A copy of this notification is transmitted by social inspectors to the employer who held third-country nationals in illegal residence referred to in point 1".
Art. 31. In article 171/1 of the same Code, inserted by the law of 29 March 2012, the words "section 1st" are inserted after the words "of chapter VI/1".
Art. 32. In article 171/2 of the same Code, inserted by the law of 29 March 2012, the words "in section 35/4" are replaced by the words "in sections 35/4 and 35/12".
Art. 33. In Book 2, Chapter 3, Section 2 of the same Code, an article 171/3, which reads as follows:
"Art. 171/3. The non-payment of compensation by the person in solidarity in the event of occupation of nationals of a third country in illegal residence
It is punishable by a level 2 penalty, the solidarity officer referred to in section 2 of chapter VI/1 of the Act of April 12, 1965 concerning the protection of the remuneration of workers who have not paid the remuneration yet due for which he is in solidarity with the same section."
Sub-section 2. - Additional punishment for the principal contractor and intermediary contractors when the employer violates the employment ban of a third-country national in illegal residence
Art. 34. In article 175 of the Social Criminal Code, the following paragraphs 3/1 to 3/3 are inserted:
§ 3/1. A level 4 penalty shall be imposed on the contractor, in the absence of a chain of subcontractors, or the intermediary contractor, in the event of such a chain, when their direct subcontractor commits an offence referred to in § 1^er/1.
Derogation from paragraph 1^er, the contractor and the intermediary contractor are not liable to a level 4 penalty if they are in possession of a written statement in which their direct subcontractor certifies that they do not occupy and will not occupy a third country national who is illegally staying.
By derogation from paragraph 2, the contractor and the intermediate contractor who are in possession of the written declaration shall be punished by level 4 if they have, prior to the offence referred to in paragraph 1^er, knowledge that their direct subcontractor occupies one or more nationals of a third country on illegal stay. Proof of this knowledge may be the notification referred to in Article 49/2 of the Social Criminal Code".
The fine is multiplied by the number of workers involved.
§ 3/2. A level 4 penalty is imposed, the principal contractor and the intermediate contractor, in the event of a chain of subcontractors, when their indirect subcontractor commits an offence referred to in § 1^er/1, if they have first knowledge of the fact that their indirect subcontractor occupies one or more nationals of a third country on illegal stay. Proof of this knowledge may be the notification referred to in Article 49/2 of the Social Criminal Code".
The fine is multiplied by the number of workers involved.
§ 3/3. Is punished by level 4:
1° the principal, in the absence of a subcontracting relationship, when his entrepreneur commits one of the offences referred to in § 1^er/1, if the principal has, prior to the offence he has committed, knowledge of the fact that his contractor occupies one or more nationals of a third country on illegal stay. Proof of this knowledge may be the notification referred to in Article 49/2 of the Social Criminal Code".
2° the principal, in the case of a subcontracting relationship, when the subcontractor acting directly or indirectly after the contractor committed an offence referred to in § 1^er/1, if the principal has, prior to the offence he has committed, knowledge that their subcontractor acting directly or indirectly after his contractor occupies one or more nationals of a third country on illegal stay. Proof of this knowledge may be the notification referred to in Article 49/2 of the Social Criminal Code".
The fine is multiplied by the number of workers involved.
Section 4. - Inspections
Art. 35. Article 2 of the Social Criminal Code is supplemented by a paragraph 4, which reads as follows:
"Among these indicators are the sectors of activity in which the occupation of third-country nationals in illegal residence is mainly observed, in relation to other sectors."
Art. 36. Article 7 of the same Code is supplemented by a 20° written as follows:
"20° to coordinate the information provided by the competent inspection services to combat illegal work and report annually before 1^er July, to the European Commission.
To this end, the competent inspection services to combat illegal work communicate annually to the Information and Social Research Service, before 1^er April, the number of inspections carried out in the previous year, both in absolute numbers, and in percentage of employers for each sector, as well as the result of these inspections".
Given at Châteauneuf-de-Grasse, February 11, 2013.
ALBERT
By the King:
The Prime Minister,
E. DI RUPO
Minister of Finance,
S. VANACKERE
The Minister of the Interior,
Ms. J. MILQUET
Minister of Social Affairs and Public Health,
Ms. L. ONKELINX
The Minister of Employment,
Ms. M. DE CONINCK
The Secretary of State for Asylum and Migration,
Ms. M. DE BLOCK
Secretary of State to Combat Social and Tax Fraud,
J. CROMBEZ
Seal of the state seal:
Minister of Justice
Ms. A. TURTELBOOM
____
Note
(1) Session 2012-2013.
House of Representatives
Documents. - Bill, 53 2466/001. - Erratum, 53 2466/002. - Report, 53 2466/003.- Text corrected by commission, 53 2466/004. - Text adopted in plenary and transmitted to the Senate, 53,2466/005.
Full report, 13 December 2012.
Senate
Documents. - Project referred to by the Senate, 5-1884 - No. 1. - Report, 5-1884 - No. 2. - Decision not to amend, 5-1884 - No. 3.
Annales of the Senate. - 21 December 2012.