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Less than 2 years ago, Belgium introduced the so-called "cash for car", giving employees the possibility to exchange their company car for tax-friendly extra cash. The goal of the law was to reduce trafic jam and air pollution by reducing the number of company cars (reportedly around 15% of all cars registered in Belgium). Even before the law was adopted, the Council of State held that the means of achieving the law's aim were not appropriate or proportionate and that the law -if adopted- would be discriminatory. Not surprisingly, the Constitutional Court annulled the less than 2-years old law in its decision of last Thursday (23 January 2020). The practical impact for employers of the Constitutional Court's decision seems fairly limited. In a timeframe of about one year, reportedly 0.06% of the total number of company cars had effectively been exchanged for extra cash (an equivalent of about 500 cars). ■
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On 25 May 2018, the Belgian labor court of Ghent requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on how to interpret the TUPE Directive (implemented in Belgium through collective bargaining agreement 32bis) in the case where there is a simultaneous transfer of various parts of an undertaking, which parts are transferred to various transferees. The CJEU was asked to answer the following questions: Must the TUPE Directive be interpreted as meaning that, in the case where there is a simultaneous transfer of various parts of an undertaking, which parts are transferred to various transferees, (i) the employment contract of a worker who was employed in each of the transferred parts, will be transferred to each of the transferees, albeit in proportion to the extent of the employment of the aforementioned worker in the part of the undertaking acquired by each transferee, or (ii) must that provision be interpreted as meaning that the aforementioned rights and obligations are transferred in their entirety to the transferee of the part of the undertaking in which the aforementioned worker was principally employed, or (iii) as meaning that, if the provisions of the Directive cannot be interpreted in any of the aforementioned ways, there is no transfer to any transferee of the rights and obligations arising from the employment contract of the aforementioned worker, which is also the case if it is not possible to determine separately the extent of the worker’s employment in each of the transferred parts of the undertaking? The opinion rendered by the Advocate General on 26 November 2019 seems to allow, as a matter of principle, the possibility of a transfer to each of the transferees, in proportion to the extent of the employment of the worker in the part of the undertaking acquired by each transferee. ■
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Reliance | Littler will discuss the pitfalls employers should consider when terminating a Belgian employment contract: (i) the various methods to terminate an employment contract, (ii) the cost of termination, (iii) the most common dismissal protections, (iv) additional risks to take into account when terminating an employment contract. For more information and to register: https://www.littler.com/events/termination-employment-under-belgian-law
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The UK supreme court recently held that unenforceable restrictions in non-compete clauses in employment contracts can be struck out or “severed” from the rest of the non-compete clause, so that the non-compete becomes enforceable. The (three) criteria to meet in order for severance to be possible are interesting also in the context of Belgian law, given earlier very similar decisions by the Belgian supreme court in 2015 (2x) and 2019. The latter decisions however all concerned situations outside an employment law context. It remains to be seen whether, in Belgium, this case law will also be confirmed in an employment law context. For a summary of the UK supreme court decision: check out the article by our UK colleagues in our global Littler practice: https://www.gqlittler.com/resources/news-and-views/the-supreme-view-on-post-termination-restrictions.htm
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In Belgium, social elections are held every four years. With the next elections taking place May 2020, companies and unions are preparing for this important event. Reliance|Littler has developed a series of videos (in Dutch, French and English) about the importance and implications of various aspects of the upcoming Belgium social elections. These videos will be released at key moments in the (preparation of the) social elections proces. The first video, together with a practical tool (to determine whether entities within Belgium will be considered as a single company for purposes of the election) is now available on https://www.littler.com/belgian-social-elections-may-2020