On 1 March, a Royal Decree setting out the conditions for ‘positive actions’ countering discrimination was published in the Belgian State Gazette. This Royal Decree now determines the method and procedure for private companies to implement a positive action plan.

Belgian anti-discrimination legislation (two Acts of 2007 and one of 1981) has introduced the possibility for companies to take positive action measures. Concretely, this legislation provides scope for companies to discriminate positively in favour of ‘disadvantaged groups’, which would reduce, eliminate or compensate for the disadvantages suffered by these groups.

The legislator imposed some conditions. These include the following:

• There must be an apparent inequality.
• The elimination of this inequality must be designated as an objective to be promoted.
• The positive action measure must be temporary and of such a nature that it disappears as soon as the intended objective is achieved.
• The positive action measure may not unnecessarily restrict other people’s rights.

Moreover, the legislator stipulated that a Royal Decree should provide for the situations in which and the conditions under which a positive action measure can be introduced.

On 1 March, that Royal Decree was (finally) published for private companies, setting out the manner and procedure for adopting such a positive action plan.

From now on, companies wishing to introduce a positive action plan must do so in the form of a collective bargaining agreement or via a specific internal resolution agreeing the plan (acte d’adhésion or toetredingsakte). The positive action plan should indicate how the legal conditions are met. Moreover, the positive action plan must be approved by the Minister of Employment.

Finally, the Royal Decree also provides for the possibility for companies to implement a positive action plan in a different way, chosen by them. Companies can, but are not obliged to communicate their plan to the Minister for Information.

The old Royal Decree of 14 July 1987 (which enabled positive actions in favour of women) is now abolished. The action plans already established on the basis of this Royal Decree remain valid.

Action Point

If you wish to implement a positive action plan in your company, you must now take into account the methods and procedures set out in the Royal Decree on positive actions. The option of implementing a plan through a collective bargaining agreement and acte d’adhésion/toetredingsakte legally offers the most guarantees.