What is a background check?
A background check is the verification of factual records about a candidate: identity, right to work, qualifications, professional registrations and, in narrowly defined cases, a criminal record extract. It checks documents and registers rather than asking people for opinions, which is what separates it from a reference check.
Most of what is commonly called a background check in international hiring guidance is not lawful in Belgium in the form described. That is the single most useful thing to know about the term here.
Can a Belgian employer ask for a criminal record extract?
In principle, no. The Belgian Data Protection Authority states that requesting a criminal record extract from a candidate is prohibited in principle, and permitted only where the law requires the holder of that profession to have a clean record. Security staff and police roles are the standard examples.
The rule sits on top of Article 10 of the GDPR, which allows the processing of personal data on criminal convictions only under the control of an official authority or where Union or national law authorises it with appropriate safeguards. Belgium transposed that in the law of 30 July 2018. A general wish to be careful is not a legal basis, however reasonable it sounds.
Which extract, and who can ask for it?
Three models exist, and the difference is not administrative. The model under Article 595 of the Code of Criminal Procedure is the general extract. The model under Article 596, paragraph 1 covers regulated activities such as taxi driver, private detective or football steward. The model under Article 596, paragraph 2 covers activities involving education, psycho-medico-social guidance, youth assistance, child protection and the supervision of minors.
Only the candidate can request their own extract, from their municipal administration. An employer cannot request it on their behalf, and for the model covering work with minors the document has to be collected in person. Once the employer has confirmed that the legal requirement is met, the Data Protection Authority is explicit that there is no further interest in retaining the data, which makes keeping a copy on file the most common mistake of all.
What can be verified without a legal problem?
A good deal, provided each check has a reason tied to the role. Identity and right to work, which for non-EU hires means the single permit. Diplomas and professional registrations, though collective labour agreement no. 38 prevents an employer from demanding certified copies and allows only a legible copy, with the original requested if authenticity is genuinely in doubt.
The boundary running through all of it is relevance. The same agreement limits questions touching a candidate's private life to what is relevant given the nature and conditions of the role. A check that cannot be explained by reference to the job is not defensible, and that test is worth applying before the check is run rather than after. Sparagus applies it on the verification steps built into its recruitment mandates across technology, engineering and business.
