BELGIUM Law and Practice Contributed by: Steven De Schrijver, Allegiance Law
employees must be informed about the trans- fer’s date, rationale, legal and economic implica- tions, and proposed measures. In cross-border transactions, the European Works Council must be informed and consulted as required. Protection Against Dismissal If CBA 32bis applies, employees cannot be dis- missed owing to the transfer, whether initiated by the buyer or the seller. Violating this prohi- bition may lead terminated employees to seek damages, in addition to severance indemnity (ranging from three to 17 weeks’ salary). These considerations underscore the importance of a comprehensive understanding of local legal intri- cacies for acquirers engaging in M&A transac- tions. Prohibited Practices Two prohibited practices that can regularly be found during the due diligence of a technology Engaging in sham self-employment in Belgium, where individuals assume the status of self- employed while working under an employer’s authority, can lead to significant consequenc- es. Authorities may re-qualify such individuals as employees, demanding both employer and employee contributions – potentially increased with interest and surcharges. Clients/employ- ers cannot recover these contributions. The re- qualified employee may also claim retroactive payment for salary elements, such as end-of- year premiums and holiday pay. The deemed employer is obligated to pay double holiday pay and end-of-year premiums within a five-year statute of limitations. Additionally, other aspects of Belgian employment law – including termi- nation regulations – apply. The Social Security Authorities have a three-year period (up to seven company are set out here. Sham self-employment
years in cases of fraud) to make claims, whereas employees have five years to assert their claims. Posting of workers The posting of workers in Belgium involves a situation where a worker – typically employed in countries other than Belgium – is loaned to a Belgian user by their employer, who exercises authority over the worker. The employment rela- tionship between the foreign undertaking and the posted worker should exist prior to posting and be maintained during the posting period. Employers posting workers to Belgium must adhere to Belgian working conditions, includ- ing pay, as mandated by legal and regulatory provisions and sanctioned under criminal law. These provisions cover various aspects, includ- ing working time, remuneration, leave, worker welfare and non-discrimination. Violations can result in legal consequences. These issues should in general be covered in the represen- tations and warranties, whereas concrete risks established during the due diligence should be covered by specific indemnities. They may also require post-closing actions. IP Considerations The copyright for a creative work is initially vest- ed in the individual who created it. Consequent- ly, the employee-creator retains ownership of the copyrights for works developed within the scope of their employment contract. However, there is provision for the partial transfer of these rights, limited to the property rights of the copyright- protected works, which can be transferred to the employer. It is crucial that any such transfer, whether full or partial, is explicitly outlined in the employment contract or a separate agreement between the employer and employee. Simply remunerating the employee-creator is insuffi- cient for acquiring these rights; the creation of
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