Personal and material scope
| Author | Ouhnaoui, Hania; Bribosia, Emmanuelle; Navasartian, Areg; Rorive, Isabelle |
| Pages | 48-66 |
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3 PERSONAL AND MATERIAL SCOPE
3.1 Personal scope
3.1.1 EU and non-EU nationals (Recital 13 and Article 3(2), Directive 2000/43
and Recital 12 and Article 3(2), Directive 2000/78)
In Belgium, there are no residence or citizenship/nationality requirements for protection
under the relevant national laws transposing the directives.
It is notable that there is no obstacle to the anti-discrimination legislation applying to
persons with irregular status.
3.1.2 Natural and legal persons (Recital 16, Directive 2000/43)
a) Protection against discrimination
In Belgium, the personal scope of anti-discrimination law covers natural and legal persons
for the purpose of protection against discrimination.
The anti-discrimination legislation explicitly addresses situations where the victim is a legal
person in the provisions on the admissibility of the action of an interest group, which
requires the victim's agreement (the agreement of the victim is needed in both situations:
natural or legal person).
b) Liability for discrimination
In Belgium, the personal scope of anti-discrimination legislation covers natural and legal
persons for the purpose of liability for discrimination.
Both natural and legal persons are prohibited from committing the types of discrimination
defined in the instruments implementing the directives (Article 5(1) of both federal acts of
10 May 2007). This requires no specific explanation where civil liability is concerned.
Although the applicable acts are silent on this issue, this seems to be the only plausible
interpretation in line with the courts’ existing practice. Under the criminal clauses contained
in the relevant instruments, Belgian criminal law has extended to legal persons all offences,
which could be committed by natural persons through the Federal Act of 4 May 1999.169
All regional pieces of legislation also impose their obligations on both natural and legal
persons.
3.1.3 Private and public sector including public bodies (Article 3(1))
a) Protection against discrimination
In Belgium, the personal scope of national anti-discrimination law covers the private and
public sectors, including public bodies, for the purpose of protection against discrimination
and for the purpose of liability for discrimination, except the Brussels ET Employment
Ordinance, the Cocof ET Decree for the public sector and the Brussels Local Civil Service
ET Ordinance for the private sector.
The Federal Anti-Discrimination Acts of 10 May 2007 apply, in their fields of competence,
to both the private and public sectors, including public bodies (Article 5(1) of both federal
acts). All regional pieces of legislation also apply, in their fields of competence, to both the
private and public sectors, including public bodies.
169 On the sanctions, which can be imposed on legal persons where they are criminally liable, see Article 7bis of
the Criminal Code, inserted by the Act of 4 May 1999.
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b) Liability for discrimination
In Belgium, the personal scope of national anti-discrimination law covers the private and
public sectors, including public bodies, for the purpose of liability for discrimination, except
the Brussels ET Employment Ordinance, the Cocof ET Decree for the public sector and the
Brussels Local Civil Service ET Ordinance for the private sector.
3.2 Material scope
3.2.1 Employment, self-employment and occupation
In Belgium, national legislation applies to all sectors of private and public employment,
self-employment and occupation, including contract work, military service and holding
statutory office, for the five grounds, except the Cocof Vocational Training ET Decree for
access to employment and occupation and the German-speaking Community Decree on
self-employment.
Under the Belgian legislative framework, all these situations are covered by anti-
discrimination legislation. The Council of State (general assembly of the legislative section)
stated, in its opinion on 11 July 2006,170 that although the federal state is responsible for
regulating employment contracts171 and for adopting general rules of civil and criminal law,
the regions and communities are exclusively competent to define the status of their staff
(this follows from Articles 9 (public bodies) and 87 (staff of the Governments) of the Special
Act on institutional reforms of 8 August 1980).
The current situation is the following:
Regarding criminal provisions, Article 25 of the Racial Equality Federal Act defines
discrimination as a criminal offence, whether deliberate or not, which consists of denying
a person access to employment or to occupational training, in creating working conditions
in the execution of the contract of employment, or in dismissing a person, on the basis of
presumed race, colour, descent, national or ethnic origin, and nationality. This extends to
public and private employment and occupation, without any restriction.
Regarding civil provisions, the legislative instruments adopted in order to implement
respective competences of each entity (federal state, region or community):
- The Racial Equality Federal Act and the General Anti-Discrimination Federal Act
prohibit direct and indirect discrimination, inter alia, with regard to access to
employment or self-employment, and working conditions, in both the private and the
public sector (Article 5(1)(5)).172
- The prohibition of discrimination enshrined in the Flemish Decree of 8 May 2002 on
proportionate participation in the employment market extends ratione materiae to
access to employment (including self-employment) and vocational guidance and
training. However, this decree applies only to situations that fall under the
competence of the Flemish Region or Community.173
- The French Community ET Decree applies to selection, promotion, working
conditions, including dismissals and pay regarding its own public service (Article 8).
170 Council of State, opinions no. 40.689/AG, 40.690/AG, and 40/691/AG, of 11 July 2006. These opinions are
appended to the Government bill presented to the House of Representatives on 26 October 2006 (doc. 51
2720/001). Following a number of changes to the original bill, a second text was presented to the Council of
State, on 2 October 2006. However, the second opinion of the Council of State did not re-examine the
question of the division of competence.
171 With regard to employment law, see Article 6(1)(VI)(4)(12) of the Special Act on institutional reforms of 8
August 1980 (Loi spéciale de réformes institutionnelles, OJ (Moniteur belge), 15 August 1980).
172 Both acts refer to ‘working relationships’, as described in their Articles 5(2).
173 For more details, see above, in the introduction.
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