Under Belgian law, both ‘public corruption’ and ‘private corruption’ constitute criminal offences. Either offence is committed where someone directly or indirectly proposes to a particular person an offer, a promise or an advantage of whatever nature, to the benefit of that person or a third party, in order for that person to perform or omit to perform an act which falls within the scope of (or is facilitated by) his or her function.
Corruption as an offence requires only a unilateral act: it is punishable upon offer, promise, gift, request or solicitation, even where the target accepts the bribe but does not undertake the behaviour requested, and even where the target refuses to participate in the unlawful scheme altogether. An agreement between the parties merely constitutes an aggravating circumstance to the offence, leading to a heavier sanction.
Public corruption consists of the direct or indirect offer, giving, receipt or solicitation of an advantage to or by a person performing public duties in Belgium or abroad, in order for that person to perform or omit to perform an act which falls within the scope of his or her function and which constitutes a proper act not subject to salary, an improper act, a criminal offence or the exercise of influence over third parties.
Answer ... The public capacity of a person is interpreted very broadly. It is the public nature of the duties performed that is relevant, not the person’s status. This includes all categories of persons, irrespective of status, who perform public duties, whether these are (Belgian or foreign) state or local civil servants and other public officials, elected members, professional officers, other persons exercising permanent or temporary public authority, and persons – including private individuals – who carry out a public service function. Consequently, private individuals who perform public duties can also fall within the scope of the offence (eg, private economic operators pursuant to the liberalisation of markets; a consultant advising a public authority).
Answer ... Private corruption consists of the direct or indirect offer, giving, receipt or solicitation of an advantage to or by a person who is a director or manager, proxy holder or employee of an undertaking or of a physical person, in order for that person to perform or omit to perform an act which falls within the scope of his or her function, or which is facilitated by his or her function.
The board of directors or shareholders’ meeting, or the employer, must be unaware of and must not have authorised the corruption. The authorisation of the board may take any form. The burden of proving the absence of authorisation rests with the prosecution.
Answer ... The offer, promise or advantage (ie, the ‘bribe’) that is the subject of the corrupt conduct must be understood broadly: it may be material or non-material, pecuniary or non-pecuniary in nature, of whatever value, and can be to the benefit of the corrupt person or others (eg, a relative or a close associate).
Answer ... ‘Corruption’ is often an umbrella term that includes public and private corruption, embezzlement, trading in influence, abuse of functions, bid rigging, subsidies fraud and similar criminal activity. These criminal conducts are criminalised by the Belgian Criminal Code or other laws.
Answer ... Yes – both companies and individuals can be prosecuted for corruption offences in Belgium.
A company can be prosecuted for corruption charges provided that the offence is:
- intrinsically linked to the realisation of the corporate purpose of the company;
- intrinsically linked to the preservation of the interests (economic or other) of the company; or
- committed on behalf of the company, as shown by the concrete circumstances.
Both the company and the individual(s) may cumulatively be held criminally liable for the same offences. However, the liability of the company is autonomous and separate from the liability of the identified individual(s) (there is no ‘strict’ or ‘vicarious’ liability principle under Belgian criminal law).
To be held criminally liable, the criminal authorities must demonstrate the willingness of the company to commit or participate in the corruption offence, which can result from the conduct of its executive bodies or managers and/or from its corporate culture, internal organisation, general policy, strategy and control mechanisms.
Answer ... Yes – the Belgian criminal authorities have jurisdiction over offenders that are non-Belgian companies (and/or individuals), provided that there is a nexus between the corruption offence(s) and the Belgian territory (eg, if part of the offence was committed in Belgium or the victim is a Belgian national or the Belgian government).
Answer ... Yes – there are several hypotheses under which the Belgian criminal authorities have extraterritorial reach over corrupt conduct that does not take place in the Belgian territory.
This includes where the defendant is a Belgian national or resident and is located in Belgium, and/or where the defendant (whether or not a Belgian national or resident) is charged with corruption of a person holding a public function in Belgium, in a foreign jurisdiction or an international organisation where the target is a Belgian national, or in an international organisation that has its seat in Belgium.
Depending on the circumstances, specific conditions must be met to allow the prosecution of the defendant in Belgium. These relate to the defendant’s location in Belgium and to the unlawful conduct constituting a criminal offence in the foreign jurisdiction where the conduct has taken place, among other things.