From 1 January 2026, a duty of care obligation applies to clients [1] and (sub)contractors active in the construction sector [2]. Some years ago, the Flemish government launched the idea of optimising contractor chain responsibility schemes in case of illegal employment, but actual implementation has taken some time. In the meantime, the obligations have been further clarified and tightened. Clients and (sub)contractors wanting to avoid criminal liability following the detection of illegal employment by their direct contractor should update their agreements and incorporate the duty of care obligation into their compliance procedures.
What does this development mean?
Until now, a contractor could relatively easily exclude criminal liability for third-country nationals’ illegal employment by including a clause in the services agreement confirming that its direct subcontractor does not employ illegal third-country nationals.
Several high-profile cases in recent years have prompted policymakers to take additional measures in the fight against social dumping and illegal employment.
A client or a (sub)contractor can avoid incurring criminal liability:
- By obtaining a written statement in which the direct (sub)contractor confirms that it does not illegally employ a third-country national or that it does not provide services as a self-employed without having a right to reside for more than three months in Belgium; and
- By complying with the duty of care obligation.
In this newsletter, we focus on the scope of the duty of care obligation.
The duty of care obligation
Which activities are covered by “construction works”?
The duty of care obligation does not only target companies falling within the scope of Joint Committee No. 124 for the construction sector.
The duty of care obligation more generally applies to works that are envisaged by Article 30bis of the Belgian Social Security Act and thus includes all “works to immovable goods”. As an example, companies falling within the scope of the metal sector (Joint Committees Nos. 111 and 209) may be subject to the duty of care obligation as well.
The value of the works is irrelevant for assessing whether the duty of care obligation applies.
Which parties in the contractor chain are subject to a duty of care obligation?
In-scope
- The client vis-a-vis the direct contractor
- The direct contractor vis-a-vis its direct subcontractor
- The direct subcontractor vis-a-vis its direct subcontractor, etc.
Not in-scope
- The client vis-a-vis the indirect subcontractor
- The client’s direct contractor vis-a-vis an indirect subcontractor
The duty of care obligation does not apply to the relationship between a (sub)contractor and the (recognised) temporary work agency that it directly relies on.
What does the duty of care obligation require?
In essence, the duty of care obligation requires you to request that your direct (sub)contractor provides certain information:
- The identification and contact details of your direct (sub)contractor;
- Personal data, residence status and employment status of employees and self-employed individuals with a third-country nationality.
In particular, the following information must be requested from the direct (sub)contractor:
If your direct (sub)contractor is a Belgian company
The Belgian employer:
- employs third-country nationals for whom a work authorisation (work permit/single permit) is required; or
- relies on a self-employed service provider with a third-country nationality for whom a professional card is required
You should request the following documents:
- Proof of a valid passport (or equivalent travel document) of the third-country national. If the direct (sub)contractor is a natural person with a third-country nationality, then proof of the direct (sub)contractor’s valid passport (or equivalent travel document) should be requested as well
- Proof of a valid residence permit for Belgium
- Proof of a valid work permit or professional card for Belgium
- Proof of a Dimona declaration (for employees)
If your direct (sub)contractor is posting from an EEA country or Switzerland
The foreign employer:
- employs third-country nationals; or
- relies on a self-employed service provider with a third-country nationality
You should request the following documents:
- Proof of a valid passport (or equivalent travel document) of the third-country national. If the direct (sub)contractor is a natural person with a third-country nationality, then proof of the direct (sub)contractor’s valid passport (or equivalent travel document) should be requested as well
- Proof of a valid residence permit covering a period of more than three months from the country of residence
- Proof of the Limosa declaration (unless an exemption applies)
- Proof of an A1-certificate (or proof that an A1-certificate was applied for)
If your direct (sub)contractor is posting from outside the EEA or Switzerland
The foreign employer:
- employs third-country nationals; or
- relies on a self-employed service provider with a third-country nationality
You should request the following documents:
- Proof of a valid passport (or equivalent travel document) of the third-country national. If the direct (sub)contractor is a natural person with a third-country nationality, then proof of the direct (sub)contractor’s valid passport (or equivalent travel document) should be requested as well
- Proof of a valid residence permit for Belgium
- Proof of a valid work permit or professional card for Belgium
- Proof of the Limosa declaration (unless an exemption applies)
What should you do with the information received?
A detailed review of the documents is not required. You must only verify whether the documents are still valid (e.g. the work permit has not expired) and have not been obviously falsified.
The documents must be retained for a period of five years as from the end of the contractual relationship between you and your direct (sub)contractor.
What should you do if your direct (sub)contractor does not provide the required documents?
You must urge your direct (sub)contractor to provide the missing information.
If the direct (sub)contractor still fails to provide the information, then you must notify the Flemish Social Inspection through an online notification platform. In addition, if documents have been obviously falsified or are no longer valid, then you must also report this.
This criminal liability can only be avoided if you proceed with the necessary notifications.
Importantly, to access the online tool, you must be registered with the RSZ/ONSS. Foreign companies without a Belgian company number cannot use the online tool. They should request a notification form from the Flemish Social Inspection by e-mailing [email protected]
Are you fully exempt from any risk if you hold a written statement and comply with the duty of care obligation?
No.
Your criminal liability may again be engaged if, prior to the detection of the infringement, you were aware that your direct (sub)contractor employed an illegal third-country national or worked with an illegal self-employed individual. The social inspection services may prove this using any type of evidence.
What risks do you face if you do not comply with the duty of care obligation?
Non-compliance with the duty of care obligation is not penalised as such.
Non-compliance will only result in your criminal liability arising in the case of illegal employment with your direct (sub)contractor. If so, you may be penalised with either (i) an administrative fine ranging from EUR 2,400 to EUR 28,000, or (ii) a criminal fine ranging from EUR 4,800 to EUR 48,000 and/or imprisonment for a term of between six months and three years. The fine is multiplied by the number of employees involved, up to a maximum cap of 100 employees [3].
When did the duty of care obligation enter into effect?
The duty of care obligation entered into effect on 1 January 2026, but the Flemish Inspection Services have announced a six-month grace period.
Action points
We recommend updating internal compliance procedures to incorporate the duty of care obligation. In addition to verifying whether a duly drafted ‘written statement’ clause is already included in your service contracts, it could also be useful to conduct a full review to verify that the necessary wording is included to reduce or limit various other risks that often arise in contractor chains, particularly where third-country nationals are involved.
ALTIUS’ Employment team is available to assist local and foreign employers active in the highly regulated construction sector with all types of employment-related questions. Furthermore, ALTIUS’ Employment team can provide guidance on any additional employment, immigration and mobility-related obligations, formalities and registrations arising from a posting set-up.
[1] The duty of care obligation does not apply to a natural person who engages a contractor to perform private works.
[2] While this newsletter’s focus is limited to the construction sector, the cleaning sector, meat sector and courier sector are in-scope as well.
[3] Subject to change as of 1 February 2026.