Social elections and transfer of undertaking: the Court of Cassation clarifies how thresholds are calculated

In a decision of 23 March 2026, the Belgian Court of Cassation provided an important clarification regarding the establishment of the Committee for Prevention and Protection at Work (CPPW) following a conventional transfer of undertaking, in the context of the 2024 social elections.

Legal framework

Companies are required to organize social elections when they reach certain employment thresholds, assessed on the basis of the average workforce employed during a specific reference period. This assessment must be carried out at the level of the technical business unit (TBU), which is determined on the basis of economic and social criteria.

For the 2024 social elections:

1. The reference period ran from 1 October 2022 to 30 September 2023;
2. If, during this period, the TBU employed an average of at least 50 employees, it is required to organize social elections and to establish a CPPW.

Difficulties arise, however, where, after the end of that reference period, an activity is taken over by a new employer as part of a conventional transfer of undertaking governed by the CLA 32bis, involving the transfer of employees to a new (or another) TBU.

Facts of the case

In the case at hand, a company operated several establishments (food retail stores) grouped within a single TBU. Following a restructuring, part of the activity was taken over by a new employer by way of a conventional transfer of undertaking within the meaning of CLA 32bis, involving the transfer of employees to a newly created TBU.

However, the effective transfer of employees only took place after the end of the reference period applicable to the 2024 social elections.

The key issue

The central question was whether, for the purpose of assessing the statutory thresholds applicable to social elections, the transferred employees could be taken into account, even though the transferee's new TBU did not yet legally exist during the reference period.

The new employer argued that it was not required to organize social elections in 2024 on the grounds that:

1. The new TBU did not yet legally exist during the reference period, as the company had not yet employed any employees at that time;
2. The transferred employees were, at that time, attached to another TBU, namely that of the transferor;
3. Accordingly, the transferred employees could not be taken into account when assessing the statutory threshold.

The Brussels Labor Court had followed this reasoning.

The decision of the Court of cassation

The Court of cassation rejected this formalistic approach and overturned the decision of the Labour Court.

It held that, in order to determine whether a CPPW must be established, account must be taken of the employees who carried out their activities in the transferred establishment during the reference period, even if the new TBU did not yet exist as such at that time.

In other words:

1. The calculation of the average workforce is not conditional upon the legal existence of the (new) TBU during the reference period;
2. It is appropriate to take into account the economic and social reality of the activity in question, and therefore the employees who actually worked in that activity during the reference period;
3. A transfer of undertaking involving the transfer of employees from one TBU to another cannot be used to circumvent this obligation.

Practical implications for employers

This decision calls for increased vigilance in situations involving restructuring, franchising or transfers of undertaking:

1. Employers must carefully analyse the TBU following a transfer and verify whether the statutory thresholds are met, independently of the date on which the new legal structure was created;
2. Obligations relating to social elections and employee representative bodies remain applicable where justified by the economic reality.

Conclusion

This decision of the Court of Cassation confirms a key principle: the calculation of thresholds for social elections must reflect the continuity of the activity and employment, beyond legal or organisational changes.

This article is written by Sema Hasani, Bert Theeuwes and Astrid Caporali.