Belgium: Bribery & Corruption (2nd edition)

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This country-specific Q&A provides an overview to bribery and corruption laws and regulations that may occur in Belgium.

This Q&A is part of the global guide to Bribery & Corruption. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/bribery-and-corruption-second-edition/

  1. What is the legal framework (legislation/regulations) governing bribery and corruption in your jurisdiction?

    The Act of 10 February 1999 on the punishment of corruption has introduced the regulations regarding anti-bribery and corruption into the Belgian Criminal Code. Embezzlement, extortion and conflict of interests by persons exercising a public office are punished by articles 240-245 of the Criminal Code. Bribery of persons exercising a public office is punished by articles 246-253 of the Criminal Code (public bribery) and bribery of non-public persons is punished by articles 504bis-504ter of the Criminal Code (private bribery).

    Recently a new Criminal Code has been drafted. That new Code has not yet been voted in the Belgian Parliament. According to the information available at the moment (May 2019) the current situation will remain, to a large extent, unaltered.

  2. Which authorities have jurisdiction to investigate and prosecute bribery in your jurisdiction?

    In Belgium, one has to make a distinction between two types of investigations. On the one hand, those investigations led by the Public Prosecutor and, on the other hand, those led by the Investigating Judge. Both types of investigations can concern the same crimes, such as bribery. The most important difference between the two above-mentioned types of investigations is that certain investigative acts are exclusively reserved for the Investigating Judge (e.g. telephone tapping). In general, the latter thus investigates the more severe cases. Furthermore, the Investigating Judge is obliged to collect both incriminating and exculpatory evidence.

    When conducting an investigation, both the Public Prosecutor and the Investigating Judge will be assisted by the police, and in particular by the specialised anti-corruption service of the federal judicial police, namely the Central Anti-Corruption Service (Centrale Dienst ter Bestrijding van Corruptie/Office Central pour la Répression de la Corruption).

  3. How is bribery defined?

    Under Belgian law, two types of bribery are prohibited, which can be defined as follows:

    Passive bribery is the act whereby a person directly or through intermediaries, on its own behalf or that of a third party, requests, accepts or receives an offer, a promise or a benefit of any kind to perform certain acts or to refrain from performing certain acts.

    Active bribery consists in proposing, directly or through intermediaries, to a person an offer, promise or benefit of any kind on its own behalf or that of a third party to have certain acts performed or to refrain from certain acts.

    Depending on the purpose of the bribery and whether or not it concerns a public or private bribery, additional conditions may apply.

  4. Does the law distinguish between bribery of a public official and bribery of private persons? If so, how is ‘public official’ defined? Are there different definitions for bribery of a public official and bribery of a private person?

    Under Belgian law, a distinction is indeed made between bribery of a public official and bribery of private persons.

    Under articles 504bis-504ter of the Criminal Code, both active and passive private bribery are covered.

    Passive private bribery is the act of a person, in his capacity as director, manager of a legal entity, trustee or appointee of a legal entity or as a natural person requesting, accepting or receiving an offer, promise or benefit of any kind, directly or through intermediaries, on his own behalf or on behalf of a third party, in order to induce him to perform or refrain from performing an act falling within the scope of his responsibilities, or made easier by his position, without the authorisation of and without informing the board of directors, general shareholders’ meeting, principal or employer.

    Active private bribery is the act of making an offer or promise, or offering a benefit of any kind to a director, manager of a legal entity, trustee or appointee of a legal entity or a natural person, directly or through intermediaries, on his own behalf or on behalf of a third party, in order to induce that person to perform or refrain from performing an act falling within the scope of his responsibilities, or made easier by his position, without the authorisation of and without informing his board of directors, general shareholders’ meeting, principal or employer.

    Public bribery is punishable pursuant to articles 246-249 of the Criminal Code.

    Passive public bribery is the act whereby a person exercising a public office, directly or through intermediaries, on his own behalf or that of a third party, requests, accepts or receives an offer, a promise or a benefit of any kind in order to conduct one of the acts mentioned in article 247 of the Criminal Code.

    Active public bribery consists in proposing, directly or through intermediaries, to a person exercising a public office an offer, promise or benefit of any kind on his own behalf or that of a third party in order to conduct one of the acts in article 247 of the Criminal Code.

    Pursuant to article 247 of the Criminal Code different criminal sanctions apply depending on the purpose of the bribery:

    a) with the purpose of inducing the person exercising a public office, to perform a lawful act that is not subject to payment of his office (art. 247, § 1, of the Criminal Code);

    b) with the purpose of inducing the person exercising a public office, to perform an unlawful act in the exercise of his office or to induce such person to refrain from performing an act that is part of his duties (art. 247, § 2, of the Criminal Code);

    c) with the purpose of inducing the person exercising a public office, to commit a crime or offence in connection with the exercise of his office (art. 247, § 3, of the Criminal Code);

    d) with the purpose of inducing the person exercising a public office, to use their established or possible influence acquired by virtue of his office to obtain the performance or omission of an act of a public authority or a public administration (art. 247, § 4, of the Criminal Code).

    Articles 246 and 247 of the Criminal Code cover all categories of persons exercising any public office, and irrespective of their status: federal, regional, community officials, provincial or municipal officers or officials, elected representatives, public officers, persons who temporary or permanently exercise a part of the public authority, and even private persons charged with a public service mission.

    Persons who are assimilated to a person exercising a public office are:

    • persons who are a candidate for a public office;
    • persons who give the impression that they will hold a public office;
    • persons who, by making use of false capacities, make believe that they exercise a public office.

    Specific sanctions are provided for when the act of bribery concerns a police officer, an officer of judicial police or member of the Public prosecution (art. 248 Criminal Code), an arbitrator (art. 249, § 1, Criminal Code), a judge-assessor or a member of a jury (art. 249, § 2, Criminal Code), or a judge (art. 249, § 3, Criminal Code).

    Article 250 of the Criminal Code extends the bribery offences as described in articles 246-249 of the Criminal Code to the bribery of persons who exercise a public office in a foreign country as well as the bribery of persons who exercise a public office in an international public organisation.

  5. What are the civil consequences of bribery in your jurisdiction?

    A person who suffered damages resulting from a bribery can seek relief before the court; the victim can choose to direct himself to a civil or to a criminal court. If a criminal case is initiated prior to or during civil proceedings, such civil proceedings are suspended until the finalisation of the criminal proceedings.

    The Act of 20 March 1991 on the approval of contractors provides for the possibility of refusing or suspending the recognition of a contractor if he/she commits certain acts of public bribery. The person convicted of public bribery cannot apply for public contracts according to the Act of 17 June 2016 on Public Procurement.

  6. What are the criminal consequences of bribery in your jurisdiction?

    Depending on the purpose of the bribery and the accompanying circumstances, the penalties in case of passive or active bribery of persons who execute a public office, constitute a fine ranging between 100 EUR and 100,000 EUR and/or an imprisonment of 6 months – 5 years.

    If the passive or active bribery concerns a police officer, a person with the capacity of officer of judicial police or a member of the public prosecution, the maximum sanction is twice as high.

    If the passive or active bribery concerns an arbitrator and relates to an act belonging to his judicial office, the penalties constitute a fine ranging between 100 EUR and 100,000 EUR and an imprisonment of 1 year - 5 years.

    If the passive or active bribery concerns a judge assessor or a member of a jury and concerns an act belonging to their judicial office, the penalties constitute a fine ranging between 500 EUR and 100,000 EUR and an imprisonment of 2 years - 10 years.

    If the passive or active bribery concerns a judge and relates to an act that belongs to his judicial office, the penalties constitute a fine ranging between 500 EUR and 100,000 EUR and an imprisonment of 5 years - 15 years.

    Where the bribery provided for in articles 246 - 249 of the Criminal Code concerns a person exercising a public office in a foreign State or in a public international organisation, the minimum fines shall be tripled and the maximum fines shall be multiplied by five.

    For offences or crimes committed as from 1 January 2017, the multiplication factor of the fines is eight, meaning that all abovementioned fines should be multiplied by eight.

    In addition, the convicted person may also be deprived of certain rights, the special confiscation may be ordered as well as the dispossession of civil and political rights for a certain period of time and an occupational ban can be imposed (see Royal Decree No. 22 of 24 October 1934).

    Depending on the circumstances the penalty for individuals for private bribery constitute a fine ranging between 100 EUR and 100,000 EUR and/or an imprisonment of 6 months – 3 years.

    For offences or crimes committed as from 1 January 2017, the multiplication factor of the fines is eight, meaning that all abovementioned fines should be multiplied by eight.

    In addition, the special confiscation may be ordered and an occupational ban can be imposed (see Royal Decree No. 22 of 24 October 1934).

    In the event a legal entity is subject to conviction, Belgian law provides a conversion mechanism in order to convert the penalties defined in the Criminal Code into penalties applicable to legal entities. The conversion mechanism is defined in article 41bis of the Criminal Code and must be applied separately to each penalty according to the following method:

    Given that the law provides for an imprisonment and/or a fine (for natural persons) in the event of corruption or bribery, the minimum fine for a legal entity will amount to 500 EUR multiplied by the number of months of the minimum imprisonment, which cannot be lower than the minimum fine for corruption or bribery for natural persons. The maximum fine for a legal entity will amount to 2,000 EUR multiplied by the number of the months of the maximum imprisonment which cannot be lower than twice the maximum fine for corruption or bribery for natural person.

    For example, if the penalty (for natural persons) is an imprisonment between 6 months and a year and/or a fine between 100 EUR and 10,000 EUR, the penalty for legal entities will be a fine ranging between 3,000 EUR and 24,000 EUR (multiplied by eight – see above).

    To date, the Belgian legislator is working on a new Belgian Criminal Code. The draft act provides for the abolition of the conversion mechanism and the introduction of specific fines for legal entities.

    Since 30 July 2018, public legal entities can also be convicted for bribery or corruption. However, to some of them, the penalties for legal entities cannot be applied. Hence, with regard to the Federal State, the regions, the communities, the provinces, the assistance zones, the pre-zones, the Brussels agglomeration, the municipalities, the multi-municipal zones, the intra-municipal territorial bodies, the French Community Commission, the Flemish Community Commission, the Joint Community Commission and the public centres for social welfare, only a declaration of guilt can be pronounced, excluding any other penalty.

  7. Does the law place any restrictions on hospitality, travel and entertainment expenses? Are there specific regulations restricting such expenses for foreign public officials?

    As outlined above, under Belgian law, a bribe can constitute an offer, promise or benefit of any kind. Due to this broad scope of application it includes hospitality, travel and entertainment expenses that exceed the ordinary business practice. Sector specific legislation regulating this aspect also exists, such as the Act of 25 March 1964 regarding the pharmaceutical products.

  8. Are political contributions regulated?

    Political contributions are governed by the Act of 4 July 1989. According to article 16bis of that Act only natural persons and thus no legal entities (or natural persons who act as an intermediary for a legal entity) are allowed to give gifts to political parties, to electoral lists, to candidates and to political mandates.

    According to this Act, political parties, electoral lists, candidates and political mandates can maximum receive a contribution of 500 EUR or equivalent per year from the same natural person. Natural persons may contribute up to a maximum total annual amount of 2,000 EUR or equivalent to political parties, electoral lists, candidates and political mandates.

    Anyone who makes or accepts a donation in breach of the aforementioned rules may be subject to criminal fines.

  9. Are facilitation payments regulated? If not, what is the general approach to such payments?

    The Belgian Criminal Code does not provide an exception of liability in case of facilitation payments. Facilitation payments fall within the scope of corruption and bribery and are thus prohibited under Belgian law.

  10. Are there any defences available?

    No specific type of defence in case of corruption or bribery exists; the defence will depend on the factual context of the case.

  11. Are compliance programs a mitigating factor to reduce/eliminate liability for bribery offences in your jurisdiction? Please identify any guidance indicating what features a compliance program should have in order to provide an effective defence/mitigation.

    The impact of the compliance programs is not regulated by the Belgian Criminal Code. However, a legal entity can put forward, as part of its defence, that it has a compliance program in place. The legal entity will then have to show it has compliance guidelines and procedures in place but also that they are effective. Therefore, it is advised that a legal entity also has operational anti-bribery and anti-corruption structures in place, such as: financial means and competent personnel to implement these guidelines and follow-up on (the respect of) the compliance procedures, means of verifying/audit, etc. Such programs and structures might however, depending on the specific circumstances of the case, still be insufficient to escape conviction.

  12. Who may be held liable for bribery? Only individuals, or also corporate entities?

    Both individuals and corporate entities can be held liable for bribery. The criminal liability of private legal entities and public legal entities has been introduced by the Act of 4 May 1999 and the Act of 11 July 2018.

  13. Has the government published any guidance advising how to comply with anti-corruption and bribery laws in your jurisdiction? If so, what are the elements of an effective corporate compliance program?

    In 2016, an anti-corruption guide for Belgian enterprises overseas has been drafted and can be found on the website of the Federal Public Service Economy (https://economie.fgov.be/nl/publicaties/anticorruptiegids-voor).

    In this guide, advice is provided regarding the elements constituting a compliance program. The compliance program must comprise three actions: prevent, detect and respond.

    This guide also refers to the ICC Rules on Combating Corruption (2011)24 as guideline for an effective compliance program.

  14. Does the law provide protection to whistle-blowers?

    In the public sector legislation exists regarding this matter, on the federal level as well as on the regional level of Flanders (the Dutch-speaking part of Belgium). The Act of 15 September 2013 on Reporting a Suspected Integrity Violation in a Federal Administrative Authority by a Staff Member protects public employees who report misconduct in the federal government. At the regional level, in 2004, the Flemish government passed a regulation by the modification of the Decree of 7 July 1998. This regulation has been modified in 2013 and 2014. Both the Federal and the Flemish legislation provide a system where the employees can report to an Ombudsman.

    In the private sector two specific legislations have been introduced recently. The first one is the Act of 31 July 2017 regulating the reporting of breaches of financial laws and regulations, of which the compliance is supervised by the FSMA (Financial Services and Markets Authority). The second one is the Act of 18 September 2017 implementing the fourth Anti-Money Laundering EU Directive. Please note however there is already a fifth Anti-Money Laundering EU Directive that will have to be transposed by the Belgian legislator into national law.

    On the European Level, a directive on the protection of persons reporting on breaches of Union law has been adopted in 2019. It protects whistle-blowers against dismissal, demotion, forms of retaliation, …

  15. How common are government authority investigations into allegations of bribery?

    As explained above under question 2, bribery investigations are led by the Public Prosecution or by the Investigating Judge and not by government authorities. However, please note that the Minister of Justice has a positive right of injunction, meaning that the Minister can oblige the Public Prosecution to investigate a case. However, this does not entail that the Minister of Justice can carry out investigation acts.

  16. What are the recent trends in investigations and enforcement in your jurisdiction?

    According to the Belgian media which reviewed an internal report on the Central Anti-Corruption Service (Centrale Dienst ter Bestrijding van Corruptie/Office Central pour la Répression de la Corruption) the investigations and enforcement of corruption is not optimal due to a lack of resources. Moreover the investigation of private corruption does not seem to be a priority.

  17. Is there a process of judicial review for challenging government authority action and decisions?

    The legal provisions regarding the investigation and prosecution of bribery or corruption do not foresee decisions or actions by a government authority.

  18. Are there any planned developments or reforms of bribery and anti-corruption laws in your jurisdiction?

    A new Criminal Code is in the making, but has not yet been voted in the Belgian Parliament. However, no major changes regarding private corruption are expected.

  19. To which international anti-corruption conventions is your country party?

    Belgium signed the following Conventions that entered into force:

    • Convention against Corruption (UN, 31 October 2003);
    • Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD, 17 December 1997);
    • Criminal Law Convention on Corruption (Council of Europe, 27 January 1999);
    • Civil Law Convention on Corruption (Council of Europe, 4 November 1999);
    • Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (Council of the European Union, 26 May 1997).
  20. Do you have a concept of legal privilege in your jurisdiction which applies to lawyer-led investigations? If so, please provide details on the extent of that protection.

    In Belgium, the concept of legal privilege exists. Its violation is criminally sanctioned (Art. 458 of the Criminal Code). Legal privilege is considered to be fundamental to the legal order of Belgium and a fundamental pillar of the right of defence. The specific provisions of the legal privilege are set out in the Codex Deontology for Lawyers (The European Deontology Codex (CCBE) also foresees the concept of legal privilege).

    In Belgium, an Internal Audit is carried out by auditors who also have a legal privilege.

  21. How much importance does your government place on tackling bribery and corruption? How do you think your jurisdiction’s approach to anti-bribery and corruption compares on an international scale?

    After an investigation is completed, severe sanctions are asked before the Court by the Public Prosecutor. When the bribery or corruption is considered to have been perpetrated, the courts apply often those severe sanctions.

  22. Generally how serious are organisations in your country about preventing bribery and corruption?

    We are aware that companies doing business in countries listed rather high on the Corruption Perceptions Index of Transparency International, give extensive attention to undertaking the necessary measures to prevent bribery and corruption (in 2018, Belgium was ranked 17th out of the 180 countries according to that index. It is an indicator of public sector corruption where number 1 is considered the least corrupt country and number 180 is considered the most corrupt country).

    In addition, the prevention of bribery and corruption is an important point of attention for companies that derive a significant part of their turnover from public work contracts. Trainings and a code of conduct with specific provisions regarding bribery and corruption is usually foreseen in these companies.

  23. What are the biggest challenges enforcement agencies/regulators face when investigating and prosecuting cases of bribery and corruption in your jurisdiction?

    As mentioned above (see question 16), an internal report on the Central Anti-Corruption Service (Centrale Dienst ter Bestrijding van Corruptie/Office Central pour la Répression de la Corruption) shows that the lack of resources is the biggest challenge as there has been a serious shortage of staff and resources for a number of years. As a result, only few cases regarding corruption are being investigated and prosecuted.

  24. What do you consider will be the most significant corruption-related challenges posed to businesses in your jurisdiction over the next 18 months?

    Companies should develop structures and have policies in place to prevent individuals from committing acts of corruption or bribery at their own initiative, such as the instalment of double signature policies. In addition, companies must undertake preventive measures and provide for trainings (throughout the whole organisational structure) to prevent that corruption or bribery would take place and that the company as a consequence incurs losses and reputational damage. This is a point of attention not only for companies working in countries where corruption is common but also in Western countries or local structures.

  25. How would you improve the legal framework and process for preventing, investigating and prosecuting cases of bribery and corruption?

    In Belgium a sufficient legal framework exists for investigating and prosecuting cases of bribery and corruption. However, due to a lack of available resources (personnel and material) the investigation and prosecution of bribery and corruption lacks efficiency and efficacy. We advocate for an improvement in this regard.