Do you work with subcontractors? Comply with the new duty of care and prevent being held liable through chain liability for their potential illegal employment.

2026/02/22

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Since 1 January 2026, stricter rules apply in the construction, cleaning, meat, and courier sectors. The manner in which you, as a principal or contractor, avoid liability for illegal employment by (sub)contractors has fundamentally changed. Where previously a written declaration sufficed, you must now comply with an extensive documentation obligation.

Chain liability: core principle and objective

Chain liability means that each link in the chain of contractors (both the principal, main contractor, and subcontractor) can be held liable for illegal employment of third-country nationals (nationals of countries outside the European Economic Area and Switzerland) as employees or self-employed persons, occurring lower down the chain.

The legislative introduction of this chain liability aims to combat social fraud and social dumping and to fight unfair competition.

In practice, cases of so-called "improper posting" of third-country nationals were encountered, where workers employed by an employer from another EU Member State were posted to Belgium without valid residence or valid labour law authorisation. In these cases, the proof of subjection to social security in that EU Member State often turned out to be falsified.

The current tightening is particularly aimed at combating structures that were set up to escape responsibility for illegal employment of third-country nationals.

What are the risks?

As a link in the chain, you can be sanctioned criminally in any sector, risk sector or not, with imprisonment of six months to three years and/or a fine of EUR 4,800 to EUR 48,000, multiplied by the number of third-country nationals involved (with a maximum of 100).

To whom does this regime apply?

The regime applies to all natural persons and legal entities (Belgian or foreign) carrying out activities in the Flemish Region as:

professional client: any person who, in the context of their economic or professional activity, commissions activities to be carried out or have carried out for a price;
main contractor: any person who undertakes to carry out (or have carried out) activities directly for a client for a price; or
intermediate contractor: any subcontractor who occupies an intermediate position in the chain of contractors, vis-à-vis the subcontractors who come after them in the chain.

If you, as a client who is a natural person, engage a contractor exclusively for private purposes, you fall outside the scope of application, unless you were aware in advance of the illegal employment.

The new regime from 1 January 2026: what changes?

For all sectors: written declaration remains applicable

Regardless of your sector, if you wish to avoid criminal sanctions, you must receive a written declaration from your direct (sub)contractor prior to the works.

This can take the form of a separate declaration on honour or be included as a clause in the contract agreement. In this declaration, your (sub)contractor confirms not to employ or to intend to employ illegally residing third-country nationals and not to exercise self-employed professional activity without being authorised or permitted to reside for more than three months or to establish themselves in Belgium.

New since 1 January 2026: extended duty of care for risk sectors

This is the most important change. If your direct (sub)contractor is active in one of the four risk sectors below, a written declaration does not suffice. You must additionally comply with an extended duty of care by requesting, checking, and retaining specific documents.

Which risk sectors are involved?

The construction sector (works in immovable property and delivery of ready-mix concrete)
- Exception: The duty of care does not apply to works of less than EUR 30.000 excl. VAT, carried out by one contractor OR works of less than EUR 5.000 excl. VAT, involving only one subcontractor.
The cleaning sector (cleaning and/or maintenance of immovable property)
- Exception: same as for the construction sector.
The meat sector (slaughtering, cutting, and meat preparation)
The courier services sector (parcel deliverers in the context of postal services)
- Exception:The duty of care does not apply to services where parcel deliverers use a tachograph-obligated vehicle and transport parcels up to a maximum of 31,5 kg.

The Flemish government opted for a phased approach, with an initial focus on sectors with a greater risk of abuse or with intensive use of subcontractors. This aligns with the requirement of Union law that restrictions on the free movement of services must be proportionate and necessary to achieve a legitimate objective. The list of risk sectors will be evaluated every two years and adjusted as necessary.

Which documents must you collect under the duty of care?

If your direct (sub)contractor belongs to one of the risk sectors, you must request a number of documents for each third-country national before the commencement of works. The documents to be collected depend on the manner in which the third-country national is employed.

A. For posting from the EEA or Switzerland:

a valid passport (or equivalent travel document);
proof of right of residence or residence permit of more than three months in a Member State of the EEA or Switzerland;
a Limosa declaration (unless exempted); and
an A1 declaration (or the receipt of acknowledgement of the application).

B. For posting from a third country (outside EEA/Switzerland):

a valid passport (or equivalent travel document);
proof of lawful residence in Belgium or combined permit;
proof of valid work authorisation or professional card; and
a Limosa declaration (unless exempted).

C. For employment by a Belgian company:

a valid passport (or equivalent travel document);
proof of lawful residence in Belgium or combined permit;
proof of valid work authorisation or professional card; and
a Dimona declaration.

After receiving these documents, you must apply due diligence and check the documents for authenticity and validity. Therefore, certainly check the validity date and verify whether the documents are not obviously falsified. This is an obligation of means.

If you establish that certain documents are missing or falsified, you must immediately ask your direct (sub)contractor to still provide the correct documents. You should do this in writing. If this is refused, you must immediately inform the Flemish Social Inspectorate via the electronic notification desk on the website of the Flemish government.

How long must you retain the documents?

It goes without saying that you must keep both the written declaration and the documents you receive under the duty of care available for the social inspection services.

Since the collected documents contain personal data, the General Data Protection Regulation (GDPR) applies. In this context, you act as data controller.

You must retain these documents for up to five years after the termination of the engagement of the (sub)contractor, with a maximum retention period of ten years.

Grace period of six months

The Flemish government provides for a grace period of six months after 1 January 2026. The social inspection services will act more leniently during this period regarding enforcement, so that companies still have time until and including 30 June 2026 to adapt.

Attention: prior knowledge remains decisive

This is crucial. Even if you possess a written declaration and have complied with your duty of care, you are still criminally liable if the social inspectorate can prove that you were aware in advance of the illegal employment by your direct (sub)contractor.

Moreover, your liability extends beyond your direct (sub)contractor. You can also be held criminally liable for infringements by indirect (sub)contractors (with whom you therefore have no direct contractual relationship), when the social inspectorate demonstrates that you were aware in advance of the illegal employment of one or more third-country nationals.

As mentioned above, criminal liability also applies to the client who is a natural person engaging a contractor exclusively for private purposes, if it is proven that they had prior knowledge of the illegal employment.

The social inspectorate can demonstrate this prior knowledge by all possible means of evidence.

Practical recommendations

1. Always request a written declaration

Regardless of the sector, you must always possess a written declaration from your direct (sub)contractor. Include this declaration in the contract agreement or have a separate declaration on honour signed.

2. Establish a documentation system for risk sectors

Are you active in the construction, cleaning, meat, or courier sector? Ensure that you systematically collect the required documents prior to the works, check them, and create a complete file per (sub)contractor. If necessary, have yourself supported by a social secretariat or a lawyer to be certain that you have complied with your duty of care.

3. Adapt your (sub)contracting agreements

Include clear warranties and protection mechanisms in your (sub)contracting agreements. You may consider the following clauses:

an indemnification obligation: your (sub)contractor undertakes to indemnify you for all costs, fines, and damages arising from chain liability due to infringements committed by them.
an obligation to cooperate: your (sub)contractor undertakes to provide the required documents within the set deadline, to immediately report changes in their workforce, and to grant access for inspections.
suspension rights: upon establishment of illegal employment or refusal to provide documents, you reserve the right to (partially) suspend payments and deny access to the site.
a termination clause: the agreement is terminated by operation of law upon establishment of illegal employment.
a chain provision: you require your (sub)contractor to stipulate the same requirements in the agreement with their own subcontractor(s).

Conclusion

The tightening of chain liability since 1 January 2026 requires a proactive approach, especially in the four risk sectors. A mere written declaration no longer suffices. You must establish a solid system for collecting, checking, and retaining documents of all third-country nationals employed by your direct (sub)contractor.

Although a grace period of six months applies, it is advisable to take action in a timely manner to protect your company against criminal prosecution and fines.

Do you want to be certain that your (sub)contractor contracts and internal procedures are adapted to these new risks?

At LegalDirect, we make your contracts and documentation legally watertight, so that you do not run criminal risks.

Schedule a targeted contract audit or update of your model agreements today. Don't hesitate to contact us.

Joris Lopes

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