Newsletter 2024 – 08

2 Federal Learning Account – Struck Off Before Implementation?

The Federal Learning Account (FLA) has been available to all employers since April 1, 2024. The FLA was introduced by law on October 20, 2023, and was intended to be a new online tool where employers can register training entitlements and training programs for their employees. Employers have until December 1, 2024, to complete the registrations.

It might be better to wait for that.

A bill was introduced in the House of Representatives to abolish the FLA. This was followed by an amendment postponing its implementation until April 1, 2025. This amendment was reportedly approved by the Social Affairs Committee on October 23. From postponement to cancellation?

Martijn Ronnen, lawyer
martijn.ronnen@mploy.be

3 The impact of the new rules for the limitation period in criminal law on employment law

Claiming wage shortfalls from ten years ago in the labor court? With the new criminal statute of limitations, it's possible.

With the Criminal Procedure Act (I) of April 9, 2024, the legislature has fundamentally changed the statute of limitations for criminal prosecution. One of the most striking changes is that the statute of limitations for misdemeanors is now ten years, instead of the previous five years.

The law entered into force on April 28, 2024, and contains no transitional provisions. This means it applies immediately to all disputes that have not expired on April 28, 2024.

The consequences of this new law are also being felt in employment law. Quite a few provisions in employment law are subject to criminal sanctions. This applies not only to all kinds of social fraud but also to rather “minor” infringements, such as the incorrect payment of (standard) wages or the failure to comply with a generally binding collective labour agreement. Employees who believe they have been paid too little now have ten years to seek redress. They can do this by filing a complaint with the social inspection services in the hope that this will lead to proceedings before the correctional court, but the shorter – and faster – route to the labour court is also open to them. Article 26 of the Preliminary Title of the Code of Criminal Procedure stipulates that a civil action arising from an offence cannot be time-barred before criminal proceedings. Consequently, since April 28, 2024, a civil claim based on a wage offence is time-barred only ten years after insufficient wages were paid.

Strictly speaking, in addition to the established wage shortfall, the employee must also demonstrate that the employer acted intentionally. In practice, the bar for providing this proof is so low that it is more difficult to meet it than to exceed it. The majority case law defines the concept of intent much more narrowly than what we understand it to be in common parlance. General intent is already present when the employer should have known that they were violating a criminally sanctioned standard.

The unstoppable flow of labor laws, with ever-new obligations on the one hand, and the tendency to resort to criminal law for enforcement on the other, means that many companies—not only their directors but also their employees—are "perpetrators" of social crimes, perhaps unknowingly. They will only have to fear legal action when making policy decisions after ten years.

Steven Renette, lawyer-partner
steven.renette@mploy.be

4 Jurisprudence – the power of the social inspectorate to search

Is the Court of Justice calling into question the authority of the social inspectorate to search corporate information systems?

ECJ 4 October 2024, C-631/22

Austrian police seized the mobile phone of the recipient of a package after a check revealed it contained 85 grams of cannabis. The police then made unsuccessful attempts to unlock the phone and access the stored data. They did not have permission from the public prosecutor's office or a judge.

The Court notes that access to personal data stored on such a data carrier can constitute a serious or even very serious interference with the fundamental rights of the data subject. Such interference must be proportionate. The seriousness of the criminal offense under investigation is one of the most important parameters when assessing the proportionality of such serious interference. Such interference with privacy and data protection must be established by law, which means that the national legislature must specify with sufficient precision the factors to be taken into account, in particular the nature or categories of the offenses concerned.

Furthermore, a judicial body or an independent administrative body must review such access in advance , except in duly demonstrated cases of urgency. This review must ensure a fair balance between the legitimate interests relating to the investigation in the context of combating crime on the one hand, and the fundamental rights to respect for private life and the protection of personal data on the other.

A mobile phone will usually contain far more personal data (photos, videos, messages, bank details, etc.) than other data carriers such as a laptop or a company computer. The Social Criminal Code does not distinguish between these types of data carriers and cannot do so given the rapid technological evolution.

The regulation of the powers of the social inspectorate under Article 42/2 in Articles 28 and 29 of the Social Security Act (Soc.Sw) does not meet any of these conditions, while mobile telephones, as information carriers, also fall within the scope of Articles 28 and 29, and laptops and other devices can also contain the sensitive personal data described by the Court.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be