An Act Providing For Sanctions And Measures Against Employers Of Illegally (1) Third-Country Nationals

Original Language Title: Loi prévoyant des sanctions et des mesures à l'encontre des employeurs de ressortissants de pays tiers en séjour illégal (1)

Read the untranslated law here: http://www.ejustice.just.fgov.be/cgi/article_body.pl?numac=2013200528&caller=list&article_lang=F&row_id=1300&numero=1343&pub_date=2013-02-22&dt=LOI&language=fr&fr=f&choix1=ET&choix2=ET&fromtab=+moftxt&trier=publication&sql=dt+=+'LOI'&tri=pd+AS+RANK+

Posted the: 2013-02-22 Numac: 2013200528 SERVICE PUBLIC FEDERAL EMPLOI, TRAVAIL ET CONCERTATION SOCIALE 11 February 2013. -An act providing for sanctions and measures against employers of nationals of third countries illegally (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -Provisions introductory Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
S. 2. this Act partially transposes Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third country nationals.
CHAPTER 2. -Definitions art. 3. for the purposes of this Act, means: 1 ° national of a third country: anyone who is not a citizen of the Union within the meaning of article 17, § 1, of the Treaty establishing the European Community, or a person enjoying the community right of free movement, as defined in article 2 of 5, code Schengen borders;
2 ° illegally: the presence on the territory of an alien who does not meet or no longer meets the conditions for access to the territory or residence.
CHAPTER 3. -Payment of arrears by employers article 4 § 1. The employer established in Belgium and that, under a contract of employment, is a national of a third country in illegally to pay a compensation equivalent to that which he is required to pay to a worker legally in an employment relationship comparable under one or more sources of obligations in labour relations between employers and workers referred to in article 51 of the Act of 5 December 1968 on collective agreements working and JABs.
§ 2. The employer which is not established in Belgium but who is, under a contract of employment, a national of a third country in illegally to pay a compensation equivalent to that which he is required to pay to a busy worker legally in a comparable pursuant to an employment relationship or sources of obligations in labour relations between employers and workers referred to in article 51 of the Act of 5 December 1968 on the collective labour agreements and joint committees, and which are applicable pursuant to the law of 5 March 2002 transposing directive 96/71 of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services and introducing a simplified regime for the conduct of social documents by companies that post workers in Belgium , of the Act of 14 July 1987 approving the Convention on the law applicable to contractual obligations, the Protocol and two joint statements made in Rome on 19 June 1980, or of Regulation (EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
S.
5. an employer who occupies in Belgium a third-country national staying illegally pay services competent a amount equal to taxes and social security contributions which he would have paid if the third-country national held legally, including delay penalties and any administrative fines.
S. 6. the employer who served in Belgium a national of a third country illegally, pays any costs resulting from the sending of payments still due in the country in which returned or returned a third-country national.
S. 7. where a national of a third country illegally is occupied in Belgium in the links of a contract of employment, it is presumed, until evidence to the contrary, there have performed benefits for at least a period of three months.
CHAPTER 4. -Facilitation of complaints art. 8 may institute legal proceedings in disputes to which the application of this Act can give rise to the defence of the rights of a third country national staying illegally in Belgium who is or who was busy: 1 ° the representative organizations of workers and employers referred to in article 3 of the law of 5 December 1968 on collective labour agreements and joint committees;
2 ° the representative organizations covered by the Act of 19 December 1974 organizing relations between public authorities and trade unions of workers covered by these authorities;
3 ° the representative trade union organizations within the Trade Union consultation body designated for the administrations, services or institutions to which the Act of 19 December 1974 setting relations between public authorities and trade unions of the officials of these authorities is not applicable;
4 ° the Centre for equal opportunities and the fight against racism, as well as any institution of public utility and any association determined by the King who possess up-to-date facts, legal personality for at least three years and whose statutes provide for the defence of the interests of the nationals of a third country.
The action of these organizations, public institutions and associations does not impair the right of a national of a third country illegally to act personally to join the action or to intervene in the cause.
S. 9. the organizations, establishments of public utility and associations referred to in article 8 may act without authorization any national of a third country illegally.

S. 10 assistance to third-country nationals so that they carry complaint is not considered to be assistance to illegal residence referred to in article 77 of the Act of 15 December 1980 on access to the territory, residence, establishment and removal of foreigners.
CHAPTER 5. -Provisions amending Section 1st. -Caisse des dépôts and consignations s. 11. in article 5 of the Act of 12 April 1965 on the protection of workers compensation, amended by the acts of the June 27, 1985, 26 June 1992 and 27 December 2005, inserted a § 4/1, as follows: "§ 4/1. When the worker is a national of a third country illegally under the Act of February 11, 2013 providing sanctions and measures against employers of nationals of third countries illegal residence and mailing address and bank account data or postal cheques are unknown to the employer, the latter shall pay the compensation was not yet paid to the postal account of the Caisse des Dépôts et Consignations by transfer".
Section 2. -Obligations of employers article
12. article 2 of the Act of 30 April 1999 occupation of foreign workers is complemented by a 4 °, 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, of the Treaty establishing the European Community, or a person enjoying the community right to free movement" as defined in article 2, point 5, of the Code borders Schengen. "."
S. 13. in the same Act, it is inserted an article 4/1, as follows: "article 4/1. An employer who wishes to be a national of a third country shall: 1 ° check, in advance, that it has a title for residence or another valid residence authorisation;
2 ° hold at the disposal of the competent inspection services a copy or data of the title for residence or other authorization of stay at least for the duration of the period of employment;
3 ° declare the entry and the exit of service thereof in accordance with the legal and regulatory provisions."
S. 14. in article 11, paragraph 2, of the Act, as amended by the Act of June 6, 2010, the words "and the officials designated by the competent authorities" are inserted between the words "social inspectors" and the words "have the powers".
S. 15. in article 13 of the same Act, as amended by the Act of June 6, 2010, the following changes are made: 1 ° 1st paragraph is replaced by the following: "anyone who has committed an offence referred to in article 175 of the Criminal Code social is jointly and severally liable for the payment of the costs of repatriation, as well as a lump sum indemnity for the costs of accommodation living and health care of the concerned foreign workers and members of their family residing illegally in Belgium";
2 ° in paragraph 2, the words "these allowances" shall be replaced by the words "this allowance".
S.
16. in article 175 of the social Criminal Code, it is inserted a § 1/1, as follows: "§ 1/1." Shall be punished by a penalty of level 4, the employer, his agent or his representative who, in contravention of the occupation of foreign workers Act of 30 April 1999, has not, during the occupation of a national of a third country: 1st verified in advance that it has a title for residence or another valid residence authorisation;
2 ° held at the disposal of the competent inspection services a copy or the sound data title of stay or its other valid residence permit, at least for the duration of the period of employment;
3 ° said his input and output in accordance with legal and regulatory provisions.
In case the residence permit or other authorization for residence submitted by the foreigner is a fake, the penalty referred to in paragraph 1 is applicable

If it is proved that the employer knew that the document was a fake.
The fine is multiplied by the number of workers concerned.
In addition, the judge may order the penalties provided for in articles 106 and 107."
Section 3. -Liability subsection 1 rules. -Joint and several liability for the still due remuneration Art.
17. in article 35/1, § 1, of the law of 12 April 1965 on the protection of workers compensation, inserted by the law of March 29, 2012, the words "this chapter" are replaced by the words "this section".
S. 18. in article 35/2, § 2, of the Act, inserted by the law of March 29, 2012, "this chapter" shall be replaced by the words "this section".
S. 19. in article 35/5 of the same Act, inserted by the law of March 29, 2012, the words "this chapter" are replaced by the words "This section".

S. 20. Chapter VI/1 of the Act, which the current text will form the 1st section entitled "général Régime", is complemented by a section 2 entitled "Margin scheme in the case of occupation of a national of a third country illegally".
S. 21. in section 2, inserted by article 20 article be inserted a 35/7, as follows: "article 35/7. For the purposes of this section, means: 1 ° national of a third country: any person who is not a citizen of the Union within the meaning of article 17, § 1 of the Treaty establishing the European Community or a person enjoying the community right of free movement, as defined in article 2 5, code Schengen borders;
2 ° illegally: the presence on the territory of an alien who does not meet or no longer meets the conditions for access to the territory or residence;
3 donor ° of order: any physical or moral person who gives order, for a price, to execute or enforce activities;
4 ° contractor: any natural or legal person who undertakes to perform or to enforce, for a price, activities for an originator.
5 ° contractor: contractor which, in the case of existence of a chain of subcontractors, is not an intermediate entrepreneur;
6 ° intermediate contractor: each subcontractor from the following subcontractors;
7 ° subcontractor: any natural or legal person who undertakes either directly or indirectly, at whatever stage it, to perform or to make runs 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 ° reported employer: the employer contractor or the employer subcontractor, concerned by the written notification referred to in article 49/2 of the social Criminal Code;
"10 ° further remuneration: the remuneration which is due to a national of a third country in illegally by his employer but not yet paid by the employer, with the exception of the allowance to which this illegally staying third-country national is entitled due to the breach of the contract of employment".
S.
22. in the same section 2, inserted an article 35/8, as follows: "article 35/8.
By way of derogation from section 1 of this chapter, the joint and several liability in the case of occupation of a national of a third country illegally in Belgium is governed by this section.
Articles 1200 to 1216 of the civil Code shall apply to joint and several liability referred to in this section.
For the application of articles 3 to 6, 10, 13 to 16, 18 and 23 of this Act, the United manager is assimilated to the employer.
Postal or Bank tax cannot be deducted from the compensation still due by the solidarity leader within the meaning of this section. "."
S. 23. in the same section 2, inserted an article 35/9, as follows: "article 35/9. The contractor, in the absence of chain of subcontractors, or intermediate entrepreneur, in the event of existence of such a string, are jointly and severally responsible for the payment of remuneration still owed by their subcontractor direct.
By way of derogation from the paragraph 1, the contractor and the intermediate contractor are not jointly and severally responsible for if they are in possession of a written declaration in which their direct subcontractor certifies that it does not occupy and will not for a national of a third country illegally.
By way of derogation from paragraph 2, the contractor and the intermediate contractor are jointly and severally liable to the moment they are aware of the fact that their direct subcontractor occupies one or more nationals of a third country illegally. The evidence of this knowledge may be the notification referred to in article 49/2 of the social Criminal Code".
S. 24. in the same section 2, inserted an article 35/10, as follows: "article 35/10. In case of existence of a chain of subcontractors, the contractor and the intermediate contractor, who have knowledge that their indirect subcontractor occupies one or more illegally staying third-country nationals, are jointly and severally responsible for the payment of remuneration still payable by this indirect subcontractor and benefits of work done for their benefit from such knowledge. The evidence of this knowledge may be the notification referred to in article 49/2 of the social Criminal Code".
S. 25. in the same section 2, inserted an article 35/11, as follows: "article 35/11. § 1.
The payer who has knowledge that its contractor occupies one or more nationals of a third country illegally, in the absence of a subcontracting relationship, is jointly and severally liable for the payment of remuneration still owed by its contractor in relation to the provision of work, from such knowledge under the contract it has signed with the contractor. The evidence of this knowledge may be the notification referred to in article 49/2 of the social Criminal Code.
The payer who has knowledge that the subcontractor involved directly or indirectly after its contractor occupies one or more illegally staying third country nationals, is, in the case of existence of a subcontracting relationship, jointly and severally liable for the payment of remuneration still owing by the subcontractor in relation to the benefits of work performed for his benefit from such knowledge. The evidence of this knowledge may be the notification referred to in article 49/2 of the social Criminal Code.
§ 2. Paragraph 1 does not apply to the individual payer who have performed activities for exclusively private purposes. "."
S. 26. in the same section 2, inserted an article 35/12, as follows: "article 35/12. The employer reported displays a copy of the written notification referred to in article 49/2 of the social Criminal Code, instead referred to in article 49/2, paragraph 4, 3 °.
The solidarity responsible referred to in articles 35/9 to 35/11 displays instead referred to in article 49/2, paragraph 4, 3 °, of the same Code a copy of the notification received if the employer reported did not display referred to in the same paragraph 1. "."
S. 27. in the same section 2, inserted an article 35/13, as follows: "article 35/13. Can litigate in disputes to which the application of this section may give rise to the defence of the rights of a third country national staying illegally in Belgium who is or who was busy: 1 ° the representative organizations of workers and employers representative organisations referred to in article 3 of the law of 5 December 1968 on collective labour agreements and joint committees;
2 ° the representative organizations covered by the Act of 19 December 1974 organizing relations between public authorities and trade unions of workers covered by these authorities;
3 ° the representative trade union organizations within the Trade Union consultation body designated for the administrations, services or institutions to which the Act of 19 December 1974 setting relations between public authorities and trade unions of the officials of these authorities is not applicable;
4 ° the Centre for equal opportunities and the fight against racism, as well as any institution of public utility and any association determined by the King referred by or under article 8, paragraph 1, 4 °, of the law of February 11, 2013 providing sanctions and measures against employers of illegally staying third-country nationals.
The action of these organizations, public institutions and associations does not impair the right of a national of a third country illegally to act personally to join the action or to intervene in the cause.
Organizations, establishments of public utility and associations referred to in paragraph 1 may act without authorization any national of a third country illegally.
S.
28. in article 21 of the social Criminal Code, amended by the law of March 29, 2012, there shall be inserted a 4 ° / 2, as follows: "4 ° / 2. transmit the written notification referred to in article 49/2 of this Code to contractors and outsourcers referred to in articles 35/9 to 35/11 of the Act of 12 April 1965 on the protection of the workers".
S. 29. in book 1, title 2, Chapter 2, of the same Code, there shall be inserted a section 3/2, entitled: "Section 3/2. The special jurisdiction of the social inspectors with regard to the occupation of a national of a third country illegally in Belgium".
S. 30. in the section 3/2, inserted by article

29, there shall be inserted an article 49/2, as follows: "article 49/2. Written notification by the occupation of a national of a third country illegally in Belgium social inspectors may inform in writing the contractors referred to in articles 35/9 and 35/10 of the law of 12 April 1965 on the protection of the remuneration of workers that their direct or indirect subcontractor occupies one or illegal third-country nationals.
Social inspectors may inform in writing the outsourcers listed in article 35/11 of the Act of 12 April 1965 on the protection of the remuneration of workers that their contractor or the subcontractor occupies one or illegal third-country nationals.
This notification refers: 1 ° the number and the identity of citizens of third countries illegally including inspection found that they provided benefits under the activities that the recipient of the notification is carried out;
2 ° the identity and address of the employer who held illegal third-country nationals referred to in paragraph 3, 1 °;
3 ° the place where illegal third-country nationals 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 illegal third-country nationals referred to in point 1 ° "."
S. 31. in article 171/1 of the same Code, inserted by the law of March 29, 2012, the words "1st section" are inserted after the words "of Chapter VI/1".
S. 32. in article 171/2 of the same Code inserted by the law of March 29, 2012, the words "article 35/4" are replaced by the words "in articles 35/4 and 35/12".
S. 33. in book 2, Chapter 3, section 2 of the same Code, it is inserted an article 171/3, as follows: "article 171/3. Non-payment of compensation by a person jointly and severally liable in the event of occupation of nationals of a third country illegally punished of a level 2 sanction is, the solidarity leader referred to in section 2 of Chapter VI/1 of the law of 12 April 1965 on the protection of the remuneration of workers who did not pay yet due compensation for which it is jointly and severally liable in accordance with the same section. "."
Sub-section 2. -Additional punishment for the main contractor and entrepreneurs intermediate when the employer violates the prohibition of the use of a national of a third country illegally s. 34. in article 175 of the social Criminal Code, §§ 3/1 to 3/3, worded as follows shall be inserted: "§ 3/1. Shall be liable to a penalty of level 4, the contractor, in the absence of a chain of subcontractors, or intermediate entrepreneur, in the event of existence of such a string, when their direct subcontractor commits an offence in the § 1/1.
By way of derogation from paragraph 1, the contractor and the contractor intermediate are not punished a sanction of level 4, if they are in possession of a written declaration in which their direct subcontractor certifies that it does not occupy and will not for a national of a third country illegally.
By way of derogation from paragraph 2, the contractor and the intermediate contractor who are in possession of the written statement are punished a penalty to level 4 if they have, prior to the offence referred to in paragraph 1, knowledge of the fact that their direct subcontractor occupies one or more nationals of a third country illegally. The evidence 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 concerned.
§ 3/2. Shall be punished by a penalty of level 4, the main contractor and intermediate entrepreneur, in the case of existence of a chain of subcontractors, when their indirect subcontractor commits an offence in the § 1/1, if they have prior knowledge of the fact that their indirect subcontractor occupies one or more nationals of a third country illegally. The evidence 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 concerned.
§ 3/3. Shall be liable to a penalty of level 4: 1 ° the payer, in the absence of a subcontracting relationship, when its contractor commits one of the offences referred to the § 1/1, if the payer has, prior to the offence he committed, aware of the fact that its contractor occupied one or more nationals of a third country illegally. The evidence of this knowledge may be the notification referred to in article 49/2 of the social Criminal Code".
2 ° the payer, in the event of a subcontracting relationship, when the subcontractor involved directly or indirectly after the contractor has committed an offence in the § 1/1, if the payer has, prior to the offence that he has committed, aware of the fact that their contractor involved directly or indirectly after its contractor occupies one or more nationals of a third country illegally. The evidence 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 concerned.
Section 4. -Inspections s. 35. article 2 of the social Criminal Code is supplemented by a paragraph 4 as follows: "These indicators include the sectors of activity in which occupation of illegal third-country nationals is mainly observed with regard to the other sectors".
S. 36. article 7 of the same Code is supplemented by a 20 ° as follows: "20 ° to coordinate the information provided by the competent inspection services to combat illegal employment and to report, annually, before 1 July, the European Commission."
"To this end, competent to combat illegal labour inspection services shall communicate each year to the Service information and social research, before 1 April, the number of inspections carried out during the previous year, both in absolute and in percentage of employers for each sector, as well as the result of these inspections".
Given at Chateauneuf-de-Grasse, February 11, 2013.

ALBERT by the King: the Prime Minister, E. DI RUPO the Minister of finance, S. VANACKERE. the Minister of the Interior, Ms. J. MILQUET. the Minister of Social Affairs and public health, Ms. L. ONKELINX the Minister of employment, Ms. M. DE CONINCK the Secretary of State to asylum and Migration, Ms. BLOCK M. the Secretary of State for the fight against social and fiscal fraud J.
CROMBEZ sealed with the seal of the State: the Minister of Justice Ms. A. TURTELBOOM _ Note (1) Session 2012-2013.
Chamber of representatives Documents. -Bill, 53 2466/001.
-Erratum, 53 2466/002. -Report, 53 2466/003 - text corrected by the commission 53 2466/004. -Text adopted in plenary meeting and transmitted to the Senate, 53 2466/005.
Compte rendu intégral, December 13, 2012.
Senate Documents. -Project mentioned by the Senate, 5-1884 - No. 1. -Report 5-1884 - No. 2. -Decision not to amend, 5-1884 - No. 3.
Annals of the Senate. -21 December 2012.