Answer ... There is no general regulatory requirement to have anti-corruption compliance programmes that applies to all companies and entities as a whole. That said, most large companies nonetheless have such a programme, which is tailored to the specific risks they face in their operations. When trying corruption cases involving companies, the courts will very often rely on an analysis of the anti-corruption compliance programme which has been implemented in order to determine whether the company had criminal intent. Efforts to combat corruption may also be taken into account by the authorities as mitigating circumstances leading to a milder sanction, or to a lower settlement amount in case of criminal settlement. So although this is not a legal requirement, implementing such a programme is not only relevant, but very often material for companies.
In addition, certain large companies and groups (ie, listed companies, credit institutions, insurance companies and settlement institutions) are subject to a duty to disclose non-financial information in their annual management report. This report must be submitted each year by the board of directors to the shareholders and, as regards listed companies, filed with the Belgian National Bank. To the extent necessary to understand these companies’ business evolution, development, performance and position, and the impact of their activities, they must describe, among other things:
- the internal policies and diligence procedures that they have put in place to fight corruption;
- the main corruption risks generated by their activities; and
- the outcome of the anti-corruption and bribery policies that they have put in place.
If no specific policy is in place, a clear and reasoned justification must be included in the annual management report. Failure to comply with these new requirements may expose the directors to civil and criminal liability, and the company may be held jointly liable for payment of the fines.
Answer ... There is no one-size-fits-all best practice to implement.
Each company is expected to conduct a risk assessment exercise and determine on that basis a system tailored to its own corporate and risk profile. Such a system will typically include the following components in large companies:
- written standards, policies and procedures (eg, code of conduct, policies and procedures regarding anti-corruption, gifts, hospitality and expenses, whistleblowing);
- communication to and training of personnel and management;
- audits and controls (lines of defence); and
- internal enforcement.
The key standards are adequacy and effectiveness: ‘paper programmes’ will not pass the test.
In addition to the multitude of international standards, Belgian companies can rely on the guidelines issued by the Belgian authorities in their Anti-corruption Guide for Belgian Enterprises Overseas.
Answer ... No books and records provisions under Belgian law are specifically aimed at preventing corruption.
Answer ... There is no general statutorily organised whistleblowing or self-reporting under Belgian law.
Investigations and enforcement relating to corruption offences mainly arise from the activities of the police and the prosecutor, and/or from complaints by potential victims.
Answer ... Failure to implement an adequate anti-corruption programme does not constitute a criminal or regulatory offence. However, it may lead to criminal liability if it results in the company having engaged in criminal behaviour (see questions 1.1 and 4.1).