Article 409 of the Belgian Criminal Code criminalizes (i) the execution or facilitation of female genital mutilation which is penalized with imprisonment, ranging from three to five years, and (ii) the attempt, incitement, advertising or the spreading of advertisements, which is penalized with imprisonment ranging from eight days to one year. The Article includes several aggravating circumstances, which will increase the severity of the punishment.
Belgium
Legislation
Straftwek van België/Code pénal de Belgique (Criminal Code of Belgium)
Pursuant to the Pay Gap Law of 22 April 2012, a mediator may be appointed to generate an action plan for gender neutrality or to intercede with employees who feel victimized by unfair treatment at work. This Royal Decree of 25 April 2014 determines the role and the qualifications of the mediator, enumerates the deontological rules s/he must respect, and describes the mediation procedures.
Pay Gap Law of 22 April 2012 (2012)
The Pay Gap Law of 22 April 2012 seeks to reduce the wage gap between men and women through various measures. For example, the social balance sheet has to be submitted by certain enterprises in their financial statements and must be broken down according to the gender of the employees. Functional classifications of employees must be gender-neutral. In addition, every enterprise employing at least 50 people has to prepare an analysis every two years in order to determine whether or not the enterprise applies a gender neutral remuneration policy. Such enterprises can also, at the request of the works council or of the Committee on Prevention and Protection at Work, appoint a mediator to generate an action plan for gender neutrality or to intercede with employees who feel victimized because of unfair treatment. A Royal Decree of 25 April 2014 determines the role and the required qualifications of this mediator as well as the deontological rules he/she needs to respect, and describes the mediation procedure.
The Collective Labor Agreement No. 95 of 10 October 2008 was established by the National Labor Council to ensure compliance with equal treatment principles at all stages of the employment relationship. Equal treatment implies the absence of discrimination based on several factors, including gender and sexual orientation. The principle of equal treatment must be complied with at every stage of the labor market, e.g., the employment relationship, the conditions for access to employment, conditions for employment, and termination of employment. It was made binding in law by the Royal Decree of 11 January 2009.
The Royal Decree of 11 January 2009 makes Collective Labor Agreement No. 95 of 10 October 2008, established by the National Labor Council, on equal treatment at all stages of the employment relationship, binding in law. Equal treatment implies the absence of discrimination based on several factors, including gender and sexual orientation. The principle of equal treatment must be complied with at every stage of the labor market, e.g., the employment relationship, the conditions for access to employment, conditions for employment, and termination of employment.
The Law of 15 February 1993 created the Centre for Combating Discrimination and Racism. Over the years, the scope of the Centre's anti-discrimination work expanded to include other forms of discrimination, like sexual orientation discrimination. In 2013, it was renamed the Interfederal Centre for Equal Opportunities and its mandate formally included the rights of foreigners and their humane treatment. In 2015, Myria (the Federal Migration Centre) split off to focus on human trafficking and protecting the human rights of migrants and foreigners. The Interfederal Centre was renamed Unia in 2016 and continues to focus on anti-discrimination and equal opportunity advocacy. Unia can take legal action in instances of discrimination based on race, sexual orientation, disability, age, religion, and other criteria of discrimination (e.g., health, wealth, political beliefs, physical characteristics, etc.). Myria may also take legal action on instances of discrimination within its mandate. More information about Unia, its work, and anti-discrimination resources is available on its website (information available in English, Français, Nederlands, and Deutsch). More information about Myria, its work, and anti-discrimination resources is available on its website (also in En, Fr, Ne, and De).
The Anti-discrimination Law of 10 May 2007 prohibits discrimination (other than gender-based discrimination, which is the subject of the Gender Law) on the basis of several criteria, including sexual orientation. In line with the Gender Law, differences and positive action are only allowed under strict conditions and if justified by a legitimate aim. Victims, as well as the Centre for Equal Opportunities and Combatting Discrimination and Racism created by the Law of 15 February 1993, can take legal action. If the plaintiff produces facts that indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no discrimination.
Law of 16 December 2002 Creating the Institute for Equality of Men and Women (2002)
Interest groups of the Institute for Equality of Men and Women, created by the Law of 16 December 2002 to monitor gender equality and to fight any form of gender-based discrimination, may bring legal action in cases of gender discrimination. The Institute is responsible for (i) guaranteeing and promoting equality between men and women, (ii) combating all forms of discrimination or inequality based on sex, and (iii) creating and implementing a proper legal framework of appropriate structures, instruments, and measures. More information on the Institute and the rights it protects is available on its website (available in English, Français, Nederlands, and Deutsch).
Gender Law of 10 May 2007 (2007)
The Gender Law of 10 May 2007 combats discrimination between women and men (thereby implementing European Union legislation) and prohibits every form of discrimination based on gender, change of gender, gender identity, gender expression, pregnancy, childbirth and motherhood. Direct and indirect discrimination, giving orders to discriminate, intimidation and sexual intimidation are all explicitly prohibited. Discrimination is prohibited with regard to access to goods and services, social security, social benefits, membership of professional organizations, and employment relations and conditions. Differences (in terms of access to certain goods or services, or employment conditions) are only allowed if it is objectively justified by a legitimate aim and if the restrictions are appropriate and necessary to achieve this aim. Differences are also allowed on a temporary basis in the context of positive action to prevent or compensate for gender-related disadvantages. Victims of discrimination can submit a reasoned complaint or take legal action. If the plaintiff has produced facts which indicate that there has been discrimination, the burden of proof is on the defendant to demonstrate that there was no gender-based discrimination.
Constitution of Belgium (2014)
Article 10 of the Constitution lays down the basic principle of equality and explicitly guarantees equality between men and women. Article 11 provides the legal basis for the adoption of legislation ensuring that there is no discrimination, while Article 11bis ensures equal access to elected mandates and public mandates.
Domestic Case Law
X. v. Y. Cour du travail de Bruxelles (Brussels Labor Court) (2017)
A woman informed her employer of the fact that she was pregnant. Two months later, her employer fired her due to alleged restructuring of the company. Subsequently, the appellant started proceedings before the Court to receive an indemnity. The appellant claims that she has a right of indemnity based on the right of pregnant women to be protected against redundancy or, following the right to be protected against discrimination. The court held for the appellant and ordered the previous employer to pay the appellant a sum of EUR 33,135.00 and EUR 703.24 and to deliver to the appellant requested social documents.
Z.D.C. v. E.M.S. Rechtbank van eerste aanleg te Antwerpen (Court of First Instance in Antwerp) (2017)
The two accused were prosecuted for invading the home of the two victims and assaulting them, which temporarily prevented the victims from being able to work. The first accused organized the crime because she could neither accept the breakup with one of the victims nor the fact that the victim was in a relationship with a man. Additionally, the first accused created a false Facebook profile to make fun of one victim’s sexual orientation and to convince one victim to break up with the other. The Court found that the motive of the crime was, among others, the sexual orientation of the victims, which is an aggravating circumstance of the assault. The Court found that the facts regarding the first accused had been clearly established. However, the interrogation and the investigation did not provide the court with enough evidence to hold the second accused criminally liable. The Court convicted the first accused and imposed a sentence of three years imprisonment and a fine of EUR 100.00 (increased with the multiplication factor of 50, i.e., in total EUR 5000), but suspended for five years if the accused complied with the terms of probation.
Public Prosecutor v. S.C. Rechtbank van eerste aanleg West-Vlaanderen afdeling Brugge sectie correctionele rechtbank (Bruges Criminal Court) (2018)
The accused was prosecuted for assaulting a trans woman and her partner for being transsexual. The accused confessed to calling the victim and her partner “dirty transsexuals” and assaulting them. Following the assault, a doctor determined that the victim was unable to work. The Court found that the facts were uncontested and therefore proven. According to the Court, the accused showed a lack of respect for social norms and the physical integrity of other human beings. Additionally, the Court found the punishment should reflect that the crime was based on the victim’s transsexual status and that the punishment should serve to have a strong deterrent effect. The court convicted the accused and imposed a sentence of six months imprisonment and a fine of EUR 100.00 (increased with the multiplication factor of 50 (i.e., in total EUR 5000))which would be suspended during three years if the accused obeyed the terms of probation.
Law of 5 May 2014 (2014)
The Law of 5 May 2014 considers the determination of the descent of the co-mother amended the Civil Code to ensure that women in a lesbian relationship no longer have to adopt their child. For married couples, the wife of the biological mother is automatically recognized as co-mother, while for non-married couples, the partner, in order to be recognized, has to recognize the child officially before or after its birth. In case of dispute considering the recognition of the co-mother, the agreements and informed consents, signed in the center for medically assisted propagation will serve as evidence for recognition (or non-recognition) of the co-mother. It is noteworthy that in Belgium, the concept of co-father does not yet exist and men thus still have to adopt in order to become the father of their child.
A.S. v. J.O.B. and J.I.O. Court of Cassation (2008)
The Court of Cassation confirmed a Court of Appeal judgment in a case of the rape of a minor where the question at issue was whether rape was to be considered to have taken place, in violation of Article 375 of the Penal Code, even if penetration was incomplete given the incomplete physical development of the child. The Court confirmed that rape is any act of sexual penetration of whatever kind and with whatever object that is committed on a person who does not consent to it.
X. Court of Appeal of Ghent (2016)
Defendant X was condemned under Article 433quinquies and 733septies of the Penal Code for human trafficking with the aim of exploiting three women by prostitution. The fact that the women may have given their consent, and came to Belgium for the specific purpose of prostituting themselves, was considered irrelevant. The Court of Appeal further considered irrelevant the possibility that the women in question had been active in prostitution before. The key test is whether there has been exploitation, and that this is the case when direct or indirect benefit is derived by the exploiter from the income generated by the prostitution, and this becomes the exploiter’s main source of income, regardless of whether the exploiter lives with, or is married to, the prostitute.
C.M. v. B.M.B. Court of Appeal of Ghent (2003)
Following an assault by her husband (which was interrupted when he sustained a heart attack and had to be hospitalized), a woman temporarily moved into a small studio above the shop she rented and in which she worked. She brought divorce proceedings shortly after the assault, which resulted in a lower court restraining order on both parties. The husband was to be allowed to stay in the couple’s family house on the theory that this was the best solution financially and because the restraining order would make it impossible for the man to live in the studio in the rented commercial property as the wife worked there on a daily basis. On appeal, the wife requested that she be allowed to live in the family house, while the husband claimed that he should be allowed to stay there given his more limited financial means (a pension allowance). The husband did not deny the violence, but minimized the facts, while the wife claimed that there were already tensions before the assault and that her husband’s heart attack had saved her life. The Court of Appeal held that despite the absence of other witness declarations, the existence of a medical certificate supporting the woman’s claims as to the assault provided sufficient evidence of violence by the husband. The fact that the violence only occurred once did not change this and nor did the outcome of the pending criminal investigation. The Court held that, in accordance with the law of 28 January 2003 on domestic violence, the family home was to be assigned to the victim of such violence as no exceptional circumstances existed here to decide otherwise, despite an alleged imbalance in the financial means of the parties. The request by the wife for a maintenance allowance to cover the husband’s rent was rejected because the husband did not prove that the wife had a higher income and that the divorce proceedings would likely lead to financial compensation by the wife to the husband for the use of the family house.
Public Prosecutor v. Various Parties Court of Appeal of Antwerp (2016)
An 18-year old woman died from injuries sustained during acts of exorcism (involving use of boiling water, acid, and beating) carried out at the request of her parents by a healer, a few months after she told her mother that she had homosexual feelings. At first instance, the acts were qualified as torture, and the fact that the victim was in a particularly vulnerable situation (mentally and physically) was considered an aggravating factor. Both the healer and the parents were sentenced by the lower court to prison terms (based on Article 417bis and 417ter of the Penal Code (torture)), but the court held that any possible discriminatory motive based on sexual orientation (which it considered unproven anyway) could not affect the criminal qualification, because the Penal Code does not provide for discrimination as an aggravating factor for torture. Contrary to the lower court, which qualified the acts as torture, the Court of Appeal did not qualify the acts as torture (as the intention of the defendants was not to punish the victim), but as blows and injuries intentionally inflicted without the purpose of manslaughter but leading to death under Article 401 of the Penal Code. In addition, the Court found that the aggravating factors included the failure to protect a vulnerable person (Article 405bis) and the fact that acts were committed by the parents of the victim had been the motive for the exorcism. The healer and both parents were sentenced to jail.
B.M. v. R.C. Constitutional Court (2009)
Until 1976, the rules applicable on marriage and divorce originated in the Code Napoléon. At that time, the right to manage property within a marriage was held entirely by the man. To ensure that women would not suffer the negative consequences of bad management by their spouse (i.e., debts), in the event the marriage was dissolved they had the option to decline or to accept the division of assets and liabilities within a specified period. Silence meant that all matrimonial property rights and obligations were declined. The Civil Code was amended from mid-1976 by the Law of 14 July 1976 to remove this discrimination but contained transitional provisions requiring the old rules to continue to apply under certain circumstances. In the case at hand (in which the women failed to make a declaration within the old deadline), the Constitutional Court was asked if the old provisions still applied for marriages entered into before the amendments became applicable and dissolved after that date. The first court ruled that the deadline no longer applied (as there was no basis for it because men and women acquired equal rights to manage matrimonial property in 1976), but it took successive appeals, culminating in an appeal before the Belgian Supreme Court, to confirm this and annul the relevant transitional provisions.
Test-Achats Constitutional Court (2011)
Following a proceeding brought by a Belgian consumer organization to seek the annulment of a law amending the Gender Law of 2007 in so far as it allowed certain differences in insurance premiums to be paid by men and women, the Constitutional Court (drawing on a judgment of the European Court of Justice as this concerned a question of the interpretation of a provision in a European Directive) ruled that such different treatment was permitted only for policies concluded before 21 December 2012.
L. Montre v. Institut national d'assurances Constitutional Court (1999)
Mr. Montre brought proceedings before the Antwerp Labor Court because the law applicable at the time (Royal Decree No 72 of 10 November 1967 on the retirement and survivors' pension for self-employed persons) allowed him to benefit from a full pension only as of the age of 65 and obliged him to accept a 25% reduction in his pension if he chose to retire at the age of 60 (5% per year before 65), while self-employed women could retire at the age of 60 and enjoy a full pension. Upon referral, the Constitutional Court ruled that there was no discrimination in this particular case because at that time, there were still long-standing differences between self-employed men and self-employed women as regards working opportunities and conditions. These objectively and reasonably justified a distinction as to the age of retirement: (i) Women had fewer opportunities to work as self-employed persons and as a result had lower pension entitlements as these were based on the length of career and women generally had shorter careers; (ii) To balance this inequality, a younger retirement age had been attributed to women and a pension reduction applied to men who retired before their normal retirement age of 65; (iii) It would take time to redress the low level of opportunities for women in the self-employment sector, so only a progressive abolition of the retirement age difference could be appropriate. This in turn would bring Belgium, an EU Member State, into line with EU regulations and case law on this topic.
M.S. v. Markant Netwerk van Ondernemende Vrouwen Constitutional Court (2008)
The Labor Court of Ghent referred a number of prejudicial questions to the Constitutional Court in the context of a dispute between a woman who claimed that her employer dismissed her after having requested maternity leave, parental leave and the continuation of a related “time credit” contract. The Labor Court agreed that the company had not provided justification for the dismissal, but had questions about how to calculate the indemnity. The applicant claimed it should be calculated on the basis of full-time employment. The Constitutional Court, however, ruled that reducing an employee’s benefits proportionally for part-time workers (which disproportionately affects women) was not a form of discrimination as the regime applies equally to men and women.
X. v. X. Cour du Travail de Bruxelles (2017)
In November 2011, the applicant became pregnant and in February 2012 she was dismissed as part of a restructuring procedure in which 20% of employees were laid-off. She argued that the termination of her contract was due to her pregnancy. The Labor Court ruled in her favor and ordered the company to pay her an indemnity and to bear the costs of the legal proceedings because it failed to prove that the dismissal of the pregnant woman was based on reasons unrelated to her state of pregnancy.
H.N. v. E.Y.A. Labor Court of Brussels (2015)
On appeal of a judgment of a lower court, the Labor Court ruled that the protection of women from being fired by an employer for reasons related to their pregnancy (including pregnancy-related absences/illnesses) also applies during the trial period, regardless of legislation permitting employers to fire employees during their trial period when absent for a period exceeding seven days. As a result, a pregnant employee may only be fired during the pregnancy-related protection period (i.e., from the moment the employer is notified of the pregnancy until one month following the legal post-natal maternity leave) if the employer can prove that the laying-off is due to reasons unrelated to the pregnancy. In case of doubt, the court will rule in favor of the employee.
Madam F v SA Schenk Labour Court of Appeal Brussels (2009)
A female employee was dismissed with severance pay due to a period of incapacity resulting from two consecutive miscarriages. In the circumstances of the case, it was not possible to apply article 40 (protection against dismissal for pregnant women) of the Labour Law of 16 March 1971, because the employer was not informed of the pregnancy. However, because the dismissal followed right after the second miscarriage, the female employee was discriminated against based on her sex. This was not refuted by the employer. Given the timing of the events and the timing of the termination of the employment relationship, the dismissal violated the law of 7 May 1991 on equal treatment for men and women with regard to working conditions, access to employment, and promotion, access to independent professions and supplementary social security schemes. This law does not provide for a fixed amount of damages. The moral damages were estimated at EUR 5,000.
ARY v International Association of the European Labor Institute Labor Court of Appeal (2004)
A female employee claimed that she was discriminated against with regard to her salary at the time of her recruitment and subsequently as she became more senior in the company. She argued that she was granted a lower salary at the beginning of her employment than male employees with equal qualifications and that she was not later granted a higher salary in the same way as male employees who received such higher salary only based on their seniority.The Court of first instance rejected the claims of the female employee. On appeal however, the Court applied the case “Danfoss” (Court of Justice, 109/88 of 17.10.1989) to the case at hand. Regarding her salary at the time of the beginning of the employment, it ruled that there was no discrimination. However, in terms of the subsequent increase of the salary, the Court held that there was indeed discrimination.
Cour d’appel, Bruxelles No. 89/3060 Court of Appeals of Belgium (1979)
The Brussels Court of Appeal recognized marital rape and found that the husband who used serious violence to coerce his wife into having sex against her wishes was guilty of the criminal offense of rape. Furthermore, this act was neither subject to bail nor to a defense of misunderstanding.
Cour d'appel, Bruxelles No. 96AR1629 Court of Appeals of Belgium (1998)
With regard to the marriage of persons of different nationality Belgian courts will ordinarily look to the national statutes governing each person to determine whether the conditions of marriage have been met. Here, however, the Court refused to look to Algerian law to determine whether the conditions for marriage had been met when called upon to decide whether the marriage between an Algerian Muslim woman and an Italian non-Muslim man could be declared null. The Brussels Court of Appeal stated that Algerian law, which includes the prohibition for a Muslim woman marrying a non-Muslim, must be rejected as being contrary to international public policy as it results in discrimination regarding the freedom of marriage based on gender and/or their religion. The Court therefore refused to consider Algerian law with regard to the law applicable to both parties of the marriage.
Cour de Cassation de Belgique No. P.04.0595.F Cour de Cassation de Belgium (2004)
The Cour de Cassation held that a finding of rape does not preclude a finding of indecent assault. The court therefore rejected an appeal for lowering the appellant's sentence and stated that the finding of the lower court of indecent assault added to the gravity of the crime of rape.
International Case Law
Case 43/75, Defrenne v Sabena [1976] ECR 455 European Court of Justice (1976)
D worked as a flight attendant for the airline Sabena. The airline paid her less than her male colleagues who did the same work. The ECJ held that Article 119 of the Treaty of the European Community was of such a character as to have horizontal direct effect, and therefore enforceable not merely between individuals and the government, but also between private parties. Article 157 TFEU (119 TEEC, 141 TEC) was invoked which stated "Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied".