New obligations from 1 January 2026: checks when employing non-EEA nationals in Flanders

In recent years, the number of non-EEA nationals working in Flanders has risen sharply. At the same time, the government has established that illegal employment and abuse within subcontracting chains continue to occur, resulting in high-profile cases (such as Borealis).

In order to better combat these abuses, the Flemish legislator will introduce  a far-reaching due diligence obligation for companies active in certain sectors from 1 January 2026. This obligation means that companies are not only responsible for their own employment, but also take an active role in monitoring their direct (sub)contractors.

New due diligence – core obligations from 1 January 2026

Starting in 2026, (professional) clients, contractors and intermediary contractors in certain sectors  will be required to proactively check that their direct (sub)contractors do not employ illegally residing third-country nationals (non-EEA nationals). A mere contractual statement is no longer sufficient to avoid liability.

This means that if you carry out or take on projects in the Flemish Region in the future, you may be affected by this new obligation in two ways.

1. As a contractor, you can expect the request of the party from whom you directly accept the contract to provide certain documents relating to the third-country nationals you employ – both employees and self-employed persons.
2. In the other direction, as a client, main contractor or intermediary contractor, you must request from your direct (sub)contractor the documents relating to the third-country nationals that your (sub)contractor employs  – again both employees and self-employed persons.

Scope of application

From 1 January 2026, the due diligence obligation will only apply to the high-risk sectors:

• Construction (‘works of immovable property’ as referred to in Article 30bis, §1, 1° of the NSSO Act)
• Cleaning
• Meat sector
• Delivery services

In addition, it was confirmed that the obligation applies to the relationship:

• Client* – direct contractor, and
• Contractor – direct subcontractor.

*Private individuals who have work carried out for strictly private purposes are excluded from the scope.

What documents do you need to request/provide?

The documents to be requested/provided depend on the ground for admission on the basis of which the third-country nationals are employed in Flanders or carry out self-employed professional activities:

1. In the case of posting from an EEA Member State or Switzerland (Vander Elst) or self-employed third-country nationals exempt from a professional card:

Example: A Polish company temporarily sends a non-EEA employee, whom it legally employs and who has a legal residence in Poland for a long period, to Flanders to carry out a project under their authority.

• valid passport (or travel title)
• proof of the right of residence in another EEA Member State / Switzerland (> 3 months), from which a third-country national is temporarily posted to Belgium
• Limosa notification (if applicable)
• A1 declaration

Practical remark:
Although the regulations do not explicitly prescribe that a Belgian residence document must be requested in a Vander Elst context, in practice we see that clients often also ask for proof of registration or residence in Belgium, especially for assignments of longer duration. After all, the absence of registration results in illegal residence, with all the consequences that entails. In practice, if registration cannot be proven, access to the site is therefore regularly refused.

2. For employees or self-employed persons who need a Belgian work permit/professional card:

Example: As a Belgian employer, you hire a non-EEA national in Belgium, or you work with a self-employed third-country national who is active in Belgium.

• valid passport (or travel title)
• proof of legal residence in Belgium
• proof of a valid Belgian work permit or professional card

Dimona declaration in the event of employment with a Belgian employer / Limosa declaration (if applicable) in the case of posting from a country outside the EEA or Switzerland

How do you fulfill your obligation?

1. If you need to request documents

1. You must request the documents from your direct contractor or subcontractor before the start of the works. No permanent follow-up is required afterwards.
2. If a document has expired or expires during the duration of the works, you must request the (sub)contractor to renew it in time.
3. You do not have to check the substantive validity of the documents. However, you do make an assessment of whether they are real documents (and not obvious forgeries). Obvious forgeries or invalid documents are treated as the absence of such documents.
4. All data must be able to be submitted to the social inspectorate at any time, and this for five years after the cooperation.
5. If your (sub)contractor does not provide the documents or if the documents provided are clearly forged or invalid, you must report this to the social inspectorate. A reporting desk will  be developed for this purpose.

2. If you need to provide documents

1. Check in advance whether the third-country nationals you will employ on the project have the required documents to legally carry out work in Belgium.
2. Start registering third-country nationals with the municipality in good time, as waiting times can increase considerably in practice.
3. Provide all requested documents to your client/contractor on first request.

Penalties

1. If you need to request documents

Those who do not comply with their due diligence obligation risk criminal sanctions consisting of a prison sentence of 6 months to 3 years, and/or a fine of EUR 4,800 – 48,000 (in the future EUR 6,000 – 60,000 EUR due to the already announced increase in the surcharges). For companies, the prison sentence is converted into a fine of EUR 24,000 – EUR 576,000.

The amounts can also be multiplied by the number of foreign nationals affected by the infringement, with a maximum of 100.

There is a six-month tolerance period: no  sanctions will be imposed until 1 July 2026, but the obligation itself will apply from 1 January.

2. If you need to provide documents

If you do not comply with the request of your direct client or contractor to provide these documents prior to the execution of the works, you risk initially being refused access to the site.

If you are unable to provide the documents, this may indicate that you are employing illegally residing third-country nationals. In that case, you risk criminal sanctions consisting of a prison sentence of 6 months to 3 years, and/or a fine of EUR 4,800 – 56,000 (in the future EUR 6,000 – EUR 70,000 due to the already announced increase in the surcharges) or an administrative fine of EUR 2,400-28,000 (in the future EUR 3,000 – 35,000 EUR due to the announced increase in the surcharges). For companies, the prison sentence is converted into a fine of EUR 24,000 – EUR 576,000.

The amounts can also be multiplied by the number of foreign nationals affected by the infringement, with a maximum of 100.

Concrete action points

1. If you need to request documents

• Adapt your subcontracting agreement according to the documents to be requested.
• Carry out additional checks on the documents of the third-country employees or self-employed persons employed by your direct contractor or subcontractor.
• Comply with your obligation to report to the social inspectorate.

2. If you need to provide documents

• Collect all documents for your third-country nationals in good time and arrange the registrations with the municipality as soon as possible.
• Make sure all documents are valid and up-to-date.
• Hand over the documents at the first request of your ‘client’.

If you have any questions about the application of this new duty of care within your projects, we are of course at your disposal.