	Lex Mundi Global Anti-Corruption Compliance Guide
	Belgium
	(Europe) Firm Liedekerke Contributors Updated 02 Mar 2020
What is the key anti-bribery and corruption legislation 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 (public bribery) is punished by Articles 246-253 of the Criminal Code and bribery of non-public persons (private bribery) is punished by Articles 504bis-504ter of the Criminal Code.
Has there been a specific anti-bribery and corruption law enacted in your jurisdiction in the last ten years?	No. The regulations regarding anti-bribery and corruption were introduced into the Belgian Criminal Code by the Act of 10 February 1999 and have since then only been slightly modified (in 2007, 2016, and 2021). The last amendments related to the sanctions applicable to the public bribery, whereby, in accordance with the European Directive 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law, more severe sanctions have been adopted. However, currently, a new Criminal Code is being drafted. According to the information we currently have (January 2022), there will be a new sanction system in place that is applicable to all crimes. Therefore, the current sanctions will slightly change. According to the current draft of the new Criminal Code, the definition of private bribery will not change, except for some minor differences (e.g., the intent is specifically mentioned in the new definition). The definition of public bribery should, however, change based on recommendations of the Group of States against Corruption ("GRECO") and the Organisation for Economic Cooperation and Development ("OECD"). Please be aware that this new Criminal Code has not yet been put to a vote in the Belgian Parliament and may, should it be adopted, also include other changes we are not aware of yet. Finally, it should be noted that on a cross-border level, the European Public Prosecutor’s Office ("EPPO") started its operations in June 2021. The EPPO was established with the adoption of Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office and aims to enhance the protection of the European Union’s financial interests through criminal enforcement at the level of the European Union. Therefore, in case the European Union’s financial interests were affected to the extent of at least EUR 10,000, the EPPO is competent to investigate and prosecute the (passive and active) corruption, even when the offense can be entirely located on the Belgian territory. Although this implies that the investigation will be coordinated on a supranational level, the offender(s) will still be prosecuted before the national courts, applying the national legislation.
Is a bribe payment to domestic government officials prohibited by the legislation?	Yes, bribes made to persons exercising a public office are punishable pursuant to Articles 246-249 of the Criminal Code. Different criminal sanctions apply, depending on the purpose of the bribe, as set out in Article 247, as follows: to have the person exercising a public office performing a lawful act that is not subject to payment of his/her office (Art. 247, § 1, of the Criminal Code). to have the person exercising a public office perform an unlawful act in the exercise of his/her office or to have him/her refrain from performing an act that is part of his/her duties (Art. 247, § 2, of the Criminal Code). to have the person exercising a public office commit a crime or offense in connection with the exercise of his/her office (Art. 247, § 3, of the Criminal Code). to have the person exercising a public office use his/her real or alleged influence which he/she has by virtue of his/her 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 temporarily 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; or 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).
Is a bribe payment to foreign government officials prohibited by the legislation?	Yes, Article 250 of the Criminal Code extends the bribery offenses as described in Articles 246-249 of the Criminal Code (see the answer to "Is a bribe payment to domestic government officials prohibited by the legislation?") 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 organization.
Is requesting or accepting a bribe prohibited by the legislation?	Yes, this is called passive bribery. Both passive and active bribery is prohibited under Belgian law. They can, in general, be defined as follows: Passive bribery consists of the fact that a person directly or through intermediaries, for himself/herself or for a third party, requests, accepts, or receives an offer, a promise, or an advantage of any kind. Active bribery consists of proposing, directly or through intermediaries, to a person an offer, promise, or benefit of any kind for himself/herself or for a third party. Additional conditions may apply depending on the purpose of the bribery and whether it concerns public or private bribery.
Who is subject to the legislation?	In principle, the territoriality principle of Belgian criminal law applies. Belgian criminal law thus applies to all crimes or offenses committed on the Belgian territory or the crimes and offenses of which one of the constitutive elements is committed on the Belgian territory, irrespective of the nationality of the offender. However, there are also specific extraterritoriality principles applicable in the case of bribery. A person may be prosecuted in Belgium if he/she has committed, outside the Belgian territory: an offense defined in Articles 246-249 of the Criminal Code (i.e. bribery of a person exercising a Belgian public office); or when the person exercising a public office in a foreign State or in a public international organization is of Belgian nationality or when the public international organization for which the person exercises a public office has its registered office in Belgium. Also, any person of Belgian nationality or whose principal place of residence is in Belgium and who, outside the territory of Belgium, is guilty of an offense defined in Article 250 of the Criminal Code, may be prosecuted in Belgium, provided that the offense is punishable by the law of the country where it was committed. In the abovementioned cases of extraterritoriality, the person can only be prosecuted in Belgium if the person is found in Belgium.
Is there criminal liability for corporate entities who have either paid or accepted a bribe payment?	Yes, private legal entities (since the Act of 4 May 1999) and public legal entities (since the Act of 11 July 2018) can be held criminally liable in case they have either paid or accepted a bribe payment.
What is the penalty for individuals violating the law?	Please note that a new draft Criminal Code (see the answer to "Has there been a specific anti-bribery and corruption law enacted in your jurisdiction in the last ten years?") is in the process of being prepared so that the below may change in the near future. Public Bribery Depending on the purpose of the bribery and on the circumstances surrounding it, the penalties in case of passive or active bribery of persons who execute a public office, range between a fine of EUR 100 to 100,000 and/or an imprisonment of six months to five years. If the passive or active bribery concerns a police officer, a person with the capacity of an 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/her judicial office, the penalty varies between EUR 100 to 100,000 and an imprisonment of one to five years. If the passive or active bribery concerns a judge assessor or a member of a jury and concerns an act belonging to his/her judicial office, the penalty varies between EUR 500 to 100,000 and imprisonment of three to ten years. If the passive or active bribery concerns a judge and relates to an act that belongs to his/her judicial office, the penalty varies between 500 EUR to 100,000 and imprisonment of five to fifteen years. Where the bribery provided for in Articles 246-249 concerns a person exercising a public office in a foreign State or in a public international organization, the minimum fines shall be tripled, and the maximum fines shall be increased fivefold. For offenses or crimes committed as of January 1, 2017, the multiplication factor of the fines is eight. This means that all the above-mentioned fines should be multiplied by eight. In addition, the convicted person may also be deprived of certain (civil and political) rights, special confiscation may be ordered, and an occupational ban can be imposed. Private Bribery Depending on the circumstances the penalty for individuals for private bribery range from a fine between EUR 100 100,000 and/or an imprisonment of six months to three years. In addition, special confiscation may be ordered, and an occupational ban can be imposed.
Assuming corporate entities are liable for violating the legislation, what is the penalty for corporate entities violating the law?	In Belgian law, a conversion mechanism exists to convert the prison sentences 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 prison sentence (whether this should be imposed with or instead of a fine) according to the following method: Given that the law provides for imprisonment and/or a fine (for natural persons) in the event of corruption or bribery, the minimum fine for a legal entity will be a fine of minimum EUR 500 multiplied by the number of months of the minimum imprisonment, but this fine may not be lower than the minimum fine for corruption or bribery for natural persons. The maximum fine for a legal entity will be a fine of EUR two thousand multiplied by the number of months of the maximum imprisonment, but this fine may not be lower than twice the maximum fine for corruption or bribery for a natural person. For example, if the penalty (for natural persons) is imprisonment between six months and one year and/or a fine between EUR 100 to 10,000, the penalty for legal entities will be a fine ranging between EUR 3,000 to 24,000. At the moment, the Belgian legislator is rewriting the Criminal Code. The draft act provides for the abolition of the conversion mechanism and the introduction of proper fines for legal entities. It is, however, uncertain whether (and if so, when) this draft act will actually be adopted and come into force. Public legal entities may also be convicted of bribery or corruption, but 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 centers for social welfare, only a declaration of guilt can be pronounced, to the exclusion of any other penalty.
Assuming corporate entities are liable for violating the legislation, does having a compliance program designed to prevent bribery constitute a defense?	Having a compliance program can be part of a defense. It is however not sufficient. The legal entity has to prove that it has compliance guidelines and procedures in place and that they are effective. The legal entity should therefore also have operational anti-bribery and anti-corruption structures, 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.
Assuming corporate entities are liable for violating the anticorruption law, is it possible for a corporate entity to reach a deferred prosecution agreement or leniency agreement with the enforcement authorities?	A settlement is possible if the public prosecutor does not intend to demand a sentence of more than two years imprisonment. However, the public prosecutor’s office might be reluctant to settle cases concerning public bribery, and even if it agrees in principle to such a settlement (both for public and private bribery), the latter is subject to several conditions that must be fulfilled.

Lex Mundi Global Anti-Corruption Compliance Guide

Back XLS

What is the key anti-bribery and corruption legislation 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 (public bribery) is punished by Articles 246-253 of the Criminal Code and bribery of non-public persons (private bribery) is punished by Articles 504bis-504ter of the Criminal Code.

Has there been a specific anti-bribery and corruption law enacted in your jurisdiction in the last ten years?

No. The regulations regarding anti-bribery and corruption were introduced into the Belgian Criminal Code by the Act of 10 February 1999 and have since then only been slightly modified (in 2007, 2016, and 2021).

The last amendments related to the sanctions applicable to the public bribery, whereby, in accordance with the European Directive 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law, more severe sanctions have been adopted.

However, currently, a new Criminal Code is being drafted. According to the information we currently have (January 2022), there will be a new sanction system in place that is applicable to all crimes. Therefore, the current sanctions will slightly change. According to the current draft of the new Criminal Code, the definition of private bribery will not change, except for some minor differences (e.g., the intent is specifically mentioned in the new definition). The definition of public bribery should, however, change based on recommendations of the Group of States against Corruption ("GRECO") and the Organisation for Economic Cooperation and Development ("OECD"). Please be aware that this new Criminal Code has not yet been put to a vote in the Belgian Parliament and may, should it be adopted, also include other changes we are not aware of yet.

Finally, it should be noted that on a cross-border level, the European Public Prosecutor’s Office ("EPPO") started its operations in June 2021. The EPPO was established with the adoption of Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office and aims to enhance the protection of the European Union’s financial interests through criminal enforcement at the level of the European Union. Therefore, in case the European Union’s financial interests were affected to the extent of at least EUR 10,000, the EPPO is competent to investigate and prosecute the (passive and active) corruption, even when the offense can be entirely located on the Belgian territory. Although this implies that the investigation will be coordinated on a supranational level, the offender(s) will still be prosecuted before the national courts, applying the national legislation.

Is a bribe payment to domestic government officials prohibited by the legislation?

Yes, bribes made to persons exercising a public office are punishable pursuant to Articles 246-249 of the Criminal Code. Different criminal sanctions apply, depending on the purpose of the bribe, as set out in Article 247, as follows:

to have the person exercising a public office performing a lawful act that is not subject to payment of his/her office (Art. 247, § 1, of the Criminal Code).
to have the person exercising a public office perform an unlawful act in the exercise of his/her office or to have him/her refrain from performing an act that is part of his/her duties (Art. 247, § 2, of the Criminal Code).
to have the person exercising a public office commit a crime or offense in connection with the exercise of his/her office (Art. 247, § 3, of the Criminal Code).
to have the person exercising a public office use his/her real or alleged influence which he/she has by virtue of his/her 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 temporarily 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; or
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).

Is a bribe payment to foreign government officials prohibited by the legislation?

Yes, Article 250 of the Criminal Code extends the bribery offenses as described in Articles 246-249 of the Criminal Code (see the answer to "Is a bribe payment to domestic government officials prohibited by the legislation?") 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 organization.

Is requesting or accepting a bribe prohibited by the legislation?

Yes, this is called passive bribery. Both passive and active bribery is prohibited under Belgian law. They can, in general, be defined as follows:

Passive bribery consists of the fact that a person directly or through intermediaries, for himself/herself or for a third party, requests, accepts, or receives an offer, a promise, or an advantage of any kind.
Active bribery consists of proposing, directly or through intermediaries, to a person an offer, promise, or benefit of any kind for himself/herself or for a third party.

Additional conditions may apply depending on the purpose of the bribery and whether it concerns public or private bribery.

Who is subject to the legislation?

In principle, the territoriality principle of Belgian criminal law applies. Belgian criminal law thus applies to all crimes or offenses committed on the Belgian territory or the crimes and offenses of which one of the constitutive elements is committed on the Belgian territory, irrespective of the nationality of the offender.

However, there are also specific extraterritoriality principles applicable in the case of bribery. A person may be prosecuted in Belgium if he/she has committed, outside the Belgian territory:

an offense defined in Articles 246-249 of the Criminal Code (i.e. bribery of a person exercising a Belgian public office); or
when the person exercising a public office in a foreign State or in a public international organization is of Belgian nationality or when the public international organization for which the person exercises a public office has its registered office in Belgium.

Also, any person of Belgian nationality or whose principal place of residence is in Belgium and who, outside the territory of Belgium, is guilty of an offense defined in Article 250 of the Criminal Code, may be prosecuted in Belgium, provided that the offense is punishable by the law of the country where it was committed.

In the abovementioned cases of extraterritoriality, the person can only be prosecuted in Belgium if the person is found in Belgium.

Is there criminal liability for corporate entities who have either paid or accepted a bribe payment?

Yes, private legal entities (since the Act of 4 May 1999) and public legal entities (since the Act of 11 July 2018) can be held criminally liable in case they have either paid or accepted a bribe payment.

What is the penalty for individuals violating the law?

Please note that a new draft Criminal Code (see the answer to "Has there been a specific anti-bribery and corruption law enacted in your jurisdiction in the last ten years?") is in the process of being prepared so that the below may change in the near future.

Public Bribery

Depending on the purpose of the bribery and on the circumstances surrounding it, the penalties in case of passive or active bribery of persons who execute a public office, range between a fine of EUR 100 to 100,000 and/or an imprisonment of six months to five years.

If the passive or active bribery concerns a police officer, a person with the capacity of an 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/her judicial office, the penalty varies between EUR 100 to 100,000 and an imprisonment of one to five years.

If the passive or active bribery concerns a judge assessor or a member of a jury and concerns an act belonging to his/her judicial office, the penalty varies between EUR 500 to 100,000 and imprisonment of three to ten years.

If the passive or active bribery concerns a judge and relates to an act that belongs to his/her judicial office, the penalty varies between 500 EUR to 100,000 and imprisonment of five to fifteen years.

Where the bribery provided for in Articles 246-249 concerns a person exercising a public office in a foreign State or in a public international organization, the minimum fines shall be tripled, and the maximum fines shall be increased fivefold.

For offenses or crimes committed as of January 1, 2017, the multiplication factor of the fines is eight. This means that all the above-mentioned fines should be multiplied by eight. In addition, the convicted person may also be deprived of certain (civil and political) rights, special confiscation may be ordered, and an occupational ban can be imposed.

Private Bribery

Depending on the circumstances the penalty for individuals for private bribery range from a fine between EUR 100 100,000 and/or an imprisonment of six months to three years. In addition, special confiscation may be ordered, and an occupational ban can be imposed.

Assuming corporate entities are liable for violating the legislation, what is the penalty for corporate entities violating the law?

In Belgian law, a conversion mechanism exists to convert the prison sentences 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 prison sentence (whether this should be imposed with or instead of a fine) according to the following method:

Given that the law provides for imprisonment and/or a fine (for natural persons) in the event of corruption or bribery, the minimum fine for a legal entity will be a fine of minimum EUR 500 multiplied by the number of months of the minimum imprisonment, but this fine may not be lower than the minimum fine for corruption or bribery for natural persons. The maximum fine for a legal entity will be a fine of EUR two thousand multiplied by the number of months of the maximum imprisonment, but this fine may not be lower than twice the maximum fine for corruption or bribery for a natural person.

For example, if the penalty (for natural persons) is imprisonment between six months and one year and/or a fine between EUR 100 to 10,000, the penalty for legal entities will be a fine ranging between EUR 3,000 to 24,000.

At the moment, the Belgian legislator is rewriting the Criminal Code. The draft act provides for the abolition of the conversion mechanism and the introduction of proper fines for legal entities. It is, however, uncertain whether (and if so, when) this draft act will actually be adopted and come into force.

Public legal entities may also be convicted of bribery or corruption, but 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 centers for social welfare, only a declaration of guilt can be pronounced, to the exclusion of any other penalty.

Assuming corporate entities are liable for violating the legislation, does having a compliance program designed to prevent bribery constitute a defense?

Having a compliance program can be part of a defense. It is however not sufficient. The legal entity has to prove that it has compliance guidelines and procedures in place and that they are effective. The legal entity should therefore also have operational anti-bribery and anti-corruption structures, 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.

Assuming corporate entities are liable for violating the anticorruption law, is it possible for a corporate entity to reach a deferred prosecution agreement or leniency agreement with the enforcement authorities?

A settlement is possible if the public prosecutor does not intend to demand a sentence of more than two years imprisonment. However, the public prosecutor’s office might be reluctant to settle cases concerning public bribery, and even if it agrees in principle to such a settlement (both for public and private bribery), the latter is subject to several conditions that must be fulfilled.

Lex Mundi Global Anti-Corruption Compliance Guide

Belgium

Lex Mundi Global Anti-Corruption Compliance Guide

Belgium

Members