On Nov. 18, 2022, the inspection services of the National Social Security Office (NSSO), Supervision of Social Laws (TSW) and FPS Finance conducted an unannounced inspection at two companies in the Antwerp Kempen region, with a private residence next door. In the process, numerous data carriers were examined and confiscated, including digital files, tachograph disks and all manner of covers, letters and documents, which the inspectorate said would indicate the performance of “black” overtime.
On Jan. 2, 2023, both companies turned to the president of the Antwerp Labor Court, Turnhout Division (sitting as in summary proceedings). The president was advised pursuant to Article 587septies Ger. W. by an action brought pursuant to Article 2 of the Law of June 2, 2010 containing provisions of the Social Penal Code, whereby any person who considers that his rights are violated by seizures and seals carried out by the Inspectorate, or detection and investigation measures carried out by the same Inspectorate, may lodge an appeal with the President of the Labor Court.
After assuming substantive and territorial jurisdiction, the president decided – in a detailed reasoned judgment dated Feb. 29, 2024 – that the investigative and investigative measures carried out and the seizure were illegal and null and void. In doing so, the president largely acceded to the arguments of the two companies, who argued that the social inspectors had entered occupied rooms (belonging to one of the companies’ directors) and searched for information carriers there. According to the judge, certain spaces were at least “mixed” in nature, while another space was actually a “privately occupied space. It fell to the NSSO to prove otherwise, but it failed – the court said – to meet its burden of proof.
In this regard, the president of the labor court recalled that workplaces may be the subject of visitation by social inspectors (Article 23 Soc. Sw.), while inhabited premises require authorization from the investigating judge (Article 24 Soc. Sw.). Although no separate category is provided for ‘mixed’ spaces in the Social Penal Code, the principle of the protection of the private residence is – according to the court – so important “that as soon as there are ‘mixed’ spaces, the principles for ‘private spaces’ apply” (see also Parl. St., Chamber, 2009-10, No. 52, 1666/009, 40).
Accordingly, the judge decided that the NSSO failed to prove that the investigation was legal. Moreover, he stressed that social inspectors did not sufficiently take to heart their duty of care (Sections 18 and 19 Soc. Sw.).
Since there was thus an unlawful search as well as an abuse of power, the president ruled that the result of this search and the seizure of the information carriers met the same fate. Consequently, all information carriers had to be returned in original to both companies.
Purely for the sake of completeness, the court noted that the NSSO also failed to show that, at the start of the search and before effectively proceeding with the search and investigation, an effort was made to contact the (absent) driver (as required by article 28 § 3 Soc. Sw.).
For your information, the NSSO has since appealed the ruling.
