BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
company. In case of an asset deal that qualifies as a transfer of undertaking in going concern under Col - lective Bargaining Agreement No 32bis (CBA 32bis), the transferee (ie, the new employer) can under certain circumstances also be involved in the information and consultation procedure. However, the consent of the employees’ representa - tives is not required. The employees’ representatives cannot change the employer’s decision or obstruct the negotiations or the transaction. The information (and consultation) must relate to the economic, financial or technical factors of the pro - posed transaction and the economic, financial and social implications thereof for the company and its employees and the envisaged measures in relation to the employees (ie, repercussions on their employ - ment), the organisation of their employment, and the employment in general. A consultation involves an exchange of views between the management and the employees’ representatives, on the occasion of which the representatives may ask questions and voice any criticism, suggestions or objections. Violation of these information and consultation rights may lead to administrative or criminal sanctions. Protection of Employees Against Dismissal In the case of a share deal, the employees’ situation is not affected since the employer remains unchanged. Consequently, the general employment termination rules should be complied with in the case of a dis - missal of one or more employees. However, this is different in the case of an asset deal under CBA 32bis. Pursuant to CBA 32bis, the rights and obligations of the transferred employees arising from their employment agreements are automatically transferred to the transferee. This implies that, on the date of the transfer of a business, all employees of the target will be automatically transferred from the transferring employer to the acquiring company, with preservation of all rights (exceptions for pension rights may apply) and obligations resulting from the employ - ment agreement.
In principle, all employees belonging to the transferred business will automatically transfer to the acquiring company. The acquirer cannot choose which employ - ees will be transferred and the transfer of a business, as such, does not constitute justified grounds for dis - missal. In the event of a dismissal, damages for mani - festly unfair dismissal of up to 17 weeks’ gross sal - ary may be due on top of mandatory severance pay. However, a dismissal remains permitted for serious cause; or for economic, technical or organisational reasons (not directly linked to the transaction) entailing changes in the employment in general. In addition, the acquiring company may not unilat - erally alter the working conditions to the detriment of the transferred employees. If important working conditions are amended unilaterally (for example sal - ary, working time or function level), the employee can, amongst other things, claim that the acquiring com - pany has terminated the employment agreement. In such cases, the acquiring company will be liable for the payment of a severance pay and potential addi - tional damages resulting from the termination of up to 17 weeks’ gross salary. The acquiring company and the transferred employ - ees are, however, free to negotiate a new employment agreement or new terms of employment subject to the employees’ consent and as long as these are in line with the terms of employment resulting from applica - ble collective bargaining agreements. Moreover, the transferring employer and the acquiring company are jointly and severally liable, vis-à-vis the employees concerned, for the payment of any debts resulting from the employment relationship and exist - ing at the time of the transfer. 2.6 National Security Review Belgium introduced a national foreign direct invest - ment (FDI) screening mechanism on 1 July 2023. The mechanism was adopted against the backdrop of Regulation (EU) 2019/452 establishing a framework for the screening of FDI into the EU. The scope of the mechanism is broad and open- ended as any investments that can affect national security, public order or the strategic interests of the
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