1 Legal and enforcement framework
1.1 Which legislative and regulatory provisions govern anti-corruption in your jurisdiction, from a regulatory (preventive) and enforcement (criminal) perspective?
In Belgium, public corruption is a criminal offence under Articles 246 to 252 of the Criminal Code, whereas private corruption is criminalised by Articles 504bis and 504ter of the Criminal Code.
There is no Belgian regulatory (ie, preventive) framework setting out specific requirements for companies (or individuals) to prevent corruption. However, failure to implement sound internal compliance systems and controls to prevent corruption may be used as evidence in criminal proceedings against the relevant company to demonstrate its willingness to participate in a corruption offence.
The anti-money laundering legislation of 18 September 2017 and the Royal Decree of 30 July 2018 on the operation of the UBO Register require all Belgian companies (and other identified entities) to register their beneficial owners in this central register. The register can be used as a screening tool to prevent corruption when doing business with third parties; its utility will increase in the first half of 2021, when all national registers across the European Union are set to be interconnected.
1.2 Which bilateral and multilateral instruments on anti-corruption have effect in your jurisdiction?
The following supranational instruments on anti-corruption have effect in Belgium:
- the Organisation for Economic Co-operation and Development (OECD) Convention of 17 December1997 on Combating Bribery of Foreign Public Officials in International Business Transactions;
- the United Nations Convention against Corruption of 31 October 2003;
- the Council of Europe Criminal Law Convention on Corruption of 27 January 1999, including its additional protocol of 15 May 2003;
- the Council of Europe Civil Law Convention on Corruption of 04 November 1999;
- the EU Convention of 25 June 1997 drawn up on the basis of Article K3(2)(c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union;
- EU Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector; and
- Directive (EU) 2017/1371 of 05 July 2017 of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law.
1.3 Are there accessible directives or other guidance from enforcement authorities in your jurisdiction?
In October 2015 the Belgian College of Public Prosecutors issued a circular which is specifically dedicated to the fight against corruption. The purpose of this circular is to highlight the materiality of both public and private corruption, and to make the prosecution of public corruption a priority for prosecutors – in particular, where corruption of a foreign official is concerned. Guidelines are given to prosecutors as part of this circular to ensure increased enforcement of anti-corruption provisions.
1.4 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?
Local public prosecutors are in charge of investigating and prosecuting corruption offences. In addition, one magistrate within the Federal Prosecutor's Office is responsible for dealing with cross-district cases and large corruption investigations.
For corruption-related investigations, the public prosecutor is assisted by a special division of the federal police forces, the Central Office for the Repression of Corruption. This office, which has special expertise and tools to investigate corruption, is part of the Central Directorate for Combating Serious and Organised Crime of the Federal Judicial Police.
1.5 What are the statistics regarding past and ongoing anti-corruption procedures in your jurisdiction?
Exhaustive statistics on past and ongoing anti-corruption procedures are not currently available in Belgium. This is despite the fact that in November 2015 the Belgian College of Public Prosecutors issued a circular which is specifically dedicated to the electronic recording of criminal proceedings related to economic and financial crime and corruption (for statistical purposes).
However, several key (supra)national stakeholders have highlighted the lack of enforcement of corruption offences by Belgian authorities in the recent past.
1.6 What are the shortcomings identified in your jurisdiction's anti-corruption legislation (including recommendations of the Organisation for Economic Co-operation and Development, where applicable)?
In its Phase 3 evaluation of Belgium conducted in 2016, the OECD highlighted a number of shortcomings in the national anti-corruption legislation, including:
- the absence of specific regulatory legislation on the prevention of corruption;
- the dual criminality requirement both to grant Belgian courts certain extraterritorial jurisdiction powers and to proceed with mutual legal assistance requests from various countries;
- the insufficient length of the statute of limitations to allow adequate time to conduct foreign corruption investigations and prosecutions;
- the inadequacy of private sector whistleblower protection; and
- the lack of transparency of criminal settlement proceedings.
2 Definitions and scope of application,
2.1 How is ‘public corruption' or ‘bribery of a public official' defined in the anti-corruption legislation?
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.
2.2 How is a ‘public official' defined in the anti-corruption legislation? How is a ‘foreign public official' defined?
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).
2.3 How is ‘private corruption' or ‘bribery in the private sector' defined in the anti-corruption legislation?
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.
2.4 How is ‘bribe' defined in the anti-corruption legislation?
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).
2.5 What other criminal offences are identified and defined in the anti-corruption legislation?
‘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.
2.6 Can both individuals and companies be prosecuted under the anti-corruption legislation?
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.
2.7 Can foreign companies be prosecuted under the anti-corruption legislation?
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).
2.8 Does the anti-corruption legislation have extraterritorial reach?
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.
3 Corruption and bribery
3.1 How are gifts, hospitality and expenses treated in your jurisdiction?
There is no overall and general guidance on gifts, hospitality and expenses in Belgium. However, there are sectoral regimes and guidelines – for instance, in the healthcare sector and in the public sector.
The bottom line remains that the wording "offer, promise or advantage of whatever nature" used in the Belgian anti-corruption provisions should be interpreted broadly and does not cover pecuniary offers only. Thus, if gifts, hospitality or disbursements are offered in circumstances that lead to a characterisation as a bribe (see question 2.4), then they are illegal. Typically, hospitality and gifts will be tolerated if they do not exceed what is considered standard business practice in the local business community.
Companies are expected to put in place adequate systems and controls (including notification and/or approval processes) in order to ensure that gifts, hospitality and expenses are compliant with the law. In practice, these systems and controls often involve setting up approval procedures for hospitality, gifts or expenses in excess of specific thresholds and the use of an internal register for transparency purposes.
3.2 How are facilitation payments treated in your jurisdiction?
The value of the bribe is irrelevant, as a matter of law. What matters is the intention to cause the recipient to behave in a specific way in the context of that person's function. Therefore, theoretically, small gifts or advantages in the ordinary course of business may constitute corruption if it can be proven that they were offered with this specific intent. In practice, such intent will be considered excluded in the case of low-value advantages. Therefore, isolated low-value gifts such as flowers, lunch, a pen with the logo of the company or a bottle of wine generally will not constitute a bribe. As a matter of principle and based on the above, facilitation payments are not allowed under Belgian law.
3.3 How is bribery through intermediaries and other third parties treated in your jurisdiction? Can those third parties be held liable?
Belgian law prohibits the ‘outsourcing' of corruption through the use of agents and intermediaries. Passive corruption includes the acceptance or solicitation of a bribe from a party other than the briber in person and the acceptance or solicitation of an advantage for a third party. Active bribery includes the act of offering, promising or giving a bribe through an intermediary and the act of offering, promising or giving an advantage to a third party.
The role of intermediaries has come under heightened scrutiny from prosecutors. Intermediaries can be prosecuted as aiders and abettors, or even as main offenders if their role is indispensable to the commission of the offence.
3.4 Can a company be held liable for bribery committed by management or other employees?
Criminal liability is individual and personal: criminal conduct must be identified for each person who is accused of an offence. As a result, a company cannot be held liable for someone else's conduct (see question 2.6).
However, provided that criminal conduct is proven (as main offender or as aider and abettor), both the legal person(s) and the natural person(s) that acted on behalf of the company can be cumulatively convicted for the same conduct.
3.5 Can a company be held liable for bribery committed by domestic or foreign subsidiaries?
As explained in question 3.4, criminal liability is personal and presupposes evidence of personal criminal conduct. There is no such thing as collective liability. So, in a group of companies, the position of each legal person will be assessed. Since the parent company and the subsidiary company are separate legal persons, the parent company cannot be liable as such for the acts of the subsidiary.
That said, the rules on criminal participation (aiding and abetting) also apply to legal persons. Therefore, the liability of the parent company may be at stake where the parent company has instructed its subsidiary to commit the criminal offence, or where the parent company performed certain acts that were necessary for the criminal offence (provided that the constituent elements of the offence are present). Such a criminal participation scheme will fall within the jurisdiction of the Belgian courts even if part of the conduct occurred outside of Belgium. The Belgian courts have jurisdiction over acts of criminal participation committed abroad where the main offence was committed in whole or in part in Belgium.
3.6 Post-merger or acquisition, can a successor company be held liable for bribery committed by legacy companies?
Several M&A scenarios are possible.
In the case of a simple share deal, where a company changes ownership, the company can be held liable regardless of whether its current shareholders owned shares at the time of the criminal conduct. This is because criminal liability is assessed at the level of the company itself, not the level of its shareholders.
In the case of merger by absorption, the absorbing company cannot be held liable for the criminal conduct of the company it absorbed if the absorbed company is liquidated after the merger. This is because the prosecution or the criminal liability of a company ends with its dissolution or liquidation. However, aiders and abettors can still be prosecuted, even if the main offender does not longer exist.
In the case of a transfer of assets, in principle, no criminal liability can arise for the successor, unless the successor continues the criminal conduct in which the transferring company had engaged, thereby triggering its own personal criminal liability.
4.1 Is implementing an anti-corruption compliance programme a regulatory requirement in your jurisdiction?
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.
4.2 What compliance best practices should a company implement to mitigate the risk of anti-corruption violations?
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.
4.3 Which books and records requirements have relevance in the anti-corruption context?
No books and records provisions under Belgian law are specifically aimed at preventing corruption.
4.4 Are companies obliged to report financial irregularities or actual or potential anti-corruption violations?
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.
4.5 Does failure to implement an adequate anti-corruption programme constitute a regulatory and/or criminal violation in your jurisdiction?
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).
5.1 Can companies that voluntarily report anti-corruption violations or cooperate with investigations benefit from leniency in your jurisdiction?
As a matter of principle, reporting oneself or someone else to the authorities has no automatic impact on the penalty applied by a court down the road. There is no legal provision that specifically provides for leniency as a result of self-reporting to, or cooperation with, the authorities in corruption cases. However, the courts may take any factor they consider relevant into consideration to mitigate the sentence they impose on the defendant. Hence, although not guaranteed, courts may be inclined in practice to exercise greater leniency with cooperative and constructive defendants.
5.2 Can the existence of an anti-corruption compliance programme constitute a defence to charges of anti-corruption violations?
See question 4.1 – demonstrating that an anti-corruption compliance programme is in place may support the argument that a company had no criminal intent to engage in a corruption scheme.
5.3 What other defences are available to companies charged with anti-corruption violations?
At trial, the defence will generally argue that the constitutive elements of the criminal offence are not proven.
In addition, as a second line of defence, any circumstance of fact may be raised by a defendant to put forward mitigating factors, such as a clean criminal record, a sound compliance programme and a constructive approach (including self-reporting or cooperation). Exonerating circumstances, such as bona fide ignorance or error, are rarely accepted by the courts.
5.4 Can companies negotiate a pre-trial settlement through plea bargaining, settlement agreements or similar?
Yes – both companies and individuals can negotiate and enter into a (pre-)trial plea bargaining or criminal settlement further to corruption charges.
However, the plea bargaining regime is little in practice although it has been an established feature of criminal procedure since 2016. This is due to a lack of interest of prosecutors in this mechanism, among other things.
Please see question 6 for further developments regarding (pre-)trial criminal settlements.
5.5 What penalties can be imposed for violations of the anti-corruption legislation? Can non-exhaustive penalties be imposed for such violations (eg, exclusion from public procurement, exclusion from entitlement to public benefits or aid, disqualification from the practice of certain commercial activities, judicial winding up)?
In case of conviction for public corruption:
- individuals: imprisonment for between six months and 15 years and a fine of €800 to €800,000;
- companies: a fine of €24,000 to €1.6 million.
Where the corrupt person is a foreign public official or a member of an international public organisation, the above fines can be multiplied by five, and can hence reach up to €4 million for individuals and €8 million for companies.
In case of conviction for private corruption:
- individuals: imprisonment for between six months and three years and a fine of €800 to €400,000; and
- companies: a fine of €24,000 to €800,000.
The conviction of an offender for private or public corruption also includes:
- the confiscation (forfeiture) of the property constituting the object or instrumentalities of the offence where this belongs to the convicted person (mandatory);
- the product of the offence (mandatory); and
- the direct or indirect (gross) proceeds derived from the offence (discretionary).
In addition, the court may order ancillary penalties in case of conviction for public or private corruption, including:
- an exclusion from public procurement (which is mandatory and applies for a period of five years);
- a prohibition against exercising certain functions, activities or professions (eg, director of a company for three to 10 years);
- revocation of rights (eg, the right to hold a public function or eligibility for five to 10 years); and/or
- winding up of the company, but only where the company was purposely created to carry out the corruption offences or where its object was purposely diverted to carry out such offences.
5.6 What is the statute of limitations to prosecute anti-corruption violations in your jurisdiction?
The statute of limitations generally applicable to corruption cases is five years. However, due to suspension and interruption rules, the limitation period can be extended in practice to a maximum of 10 years (although exceptions may apply).
The limitation period starts to run after the criminal conduct has ended. In cases where criminal conduct involves corruption acts and other criminal offences united by the same criminal intent, the case will be time barred when the limitation period relating to the last criminal act expires. This can result in certain corruption cases not being time barred before much longer than five or 10 years after the corruption acts. For instance, where corruption acts are mingled with acts of forgery and use of forged documents, the limitation period applicable to the criminal conduct as a whole starts to run only when the forged documents (eg, contracts, invoices, financial statements) cease to be used.
6 Trends and predictions
6.1 How would you describe the current anti-corruption enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
In 2015 the College of Public Prosecutors took steps to increase the focus on the fight against corruption through, among other things, the issuance of a circular that seeks to make the prosecution of corruption a priority. In addition, in 2017 the Belgian government affirmed its intention to increase the number of specialised investigators and prosecutors with a view to combating economic and financial crime, including corruption. We note in our practice an increase in the prosecution of corruption cases, although no objective data to verify this is publicly available. We expect this trend to accelerate in the future.
From a legislative perspective, it is also possible that the Belgian government may soon reflect on the need to adopt anti-corruption regulatory (and preventive) legislation similar to the Sapin II Act France.
7 Tips and traps
7.1 What are your top tips for the smooth implementation of a robust anti-corruption compliance programme and what potential sticking points would you highlight?
Here are a few points based on practice and experience:
- Top management must be committed to preventing and detecting corruption. There must be compliance expertise at the top management level. Top management must support a zero tolerance policy, including the integration of anti-corruption measures in all aspects of the organisation.
- The compliance officer (or the person in charge with compliance) must have sufficient seniority and stature, and be supported by adequate resources (staff, budget, information, time). The compliance officer must be able to work autonomously (direct access to board, risk and audit committee).
- Policies and procedures must integrate the culture of compliance into day-to-day operations (the scope of which depends on the risks identified).
- In order to be effective, the programme must include a reporting system (hotline, whistleblowing), an investigation process and an action plan in case of non-compliance (eg, sanctions, lessons learnt, revision of policies or procedures).
- Communication and training must be risk based and tailored to the audience. It must cover prior incidents and include tests.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.