BELGIUM -Legal Migration- Employment and Social Affairs-Infringements-State of Play

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On 27 September, the Belgian Council of Ministers approved a draft royal decree on the entry and residence of third-country nationals as seasonal workers (Directive 2014/36/EU).

The project supplements the Royal Decree of 8 October 1981, implementing the Aliens Act.

The project was submitted to the Council of State.

Directive 201436/EU was transposed into regional labour legislations (entry into force pending legislation on federal level).

On 25 July, the European Commission has decided to refer Belgium to the ECJ, for failing to transpose the Directive 2014/66/EU (on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer).

Regional labour legislations have transposed the Directive, more ever in Brussels Region, the provisions have entered into force (i.e. possible to lodge applications for authorisations of employment under the ICT EU scheme).

The Commission is calling on the ECJ to impose financial sanctions as follows: a) a lump sum of EUR 4,088.25 per day, between the day after the deadline for transposition (i.e. 29 November 2016),and either compliance by Belgium, or the date of delivery of the judgment b) a minimum lump sum of EUR 2,029,000.00 c) a daily penalty payment of EUR 36,794.25 from the day of the first judgment until full compliance is reached or until the second Court judgment.

On 25 July, the Commission has sent a reasoned opinion to Belgium, for not having fully transposed EU rules on the conditions of entry and residence of non-EU nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (Directive 2016/801/EU).

Regional labour legislations have transposed the Directive, however, its entry into force pending legislation on federal level.

On 11 April, the EU Commission has closed the infringement procedure gave rise to the ECJ ruling of 11 July 2018 (C-356/15), one of the recent rulings related to the binding effect of Portable Documents A1 / forms E 101, issued by institutions in other Member States. The ECJ rejected the argument invoked by Belgium, justifying a temporary subjection to the legislation of the host Member State, on grounds of Article 6(1)(a) Regulation 987/2009.

Belgium has abrogated Articles 22 to 25, Programme Law of 27 December 2012 (with effect from 27 January 2019).

Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides in-depth advice on rights and obligations triggered by the cross-border element of a given legal situation. Our know-how is built on an extensive experience in EU law and is supported by a network of partners across the EU. Social security coordination : • Autonomous application of the social security coordination regulations and ECJ case-law, to any situation involves a cross-border element EU Company law : • Establishment -permanent activities • Establishment -self-employment activities International Private Law : • Law applicable to the employment relationship Labour and employment law : • Freedom of movement of workers-equal treatment, access to social benefits • Employment contracts and termination of employment • Working conditions • Employee benefits • Transfer of undertakings • Authorisations of work for third-country nationals Special regimes : • Posted workers • Frontier workers • Highly mobile workers • Employment of record • Intra-EU mobility of third-country nationals

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