White-Collar Crime 2019

Last Updated October 21, 2019

Belgium

Law and Practice

Authors



Linklaters LLP regularly acts on the most significant regulatory and criminal investigations and related civil disputes in the world. The firm provides strategic legal advice on sensitive matters involving anti-bribery and corruption, anti-money laundering, business crimes, fraud, export controls and sanctions, and other related issues. With 30 offices across the world, Linklaters is especially well-equipped to address the most challenging cross-border internal investigations, leveraging its ability to draw upon large multi-disciplinary and multi-jurisdictional teams at short notice. Its collaborative international teams have represented clients before criminal authorities and regulators across multiple jurisdictions and in a wide variety of fields. The firm has excellent insight into relevant prosecutors and authorities. A number of its lawyers have previously held senior positions at national regulators. Recent work has involved assisting several Swiss and Luxembourg banks in their defence against criminal charges based on tax fraud. Linklaters has also advised the board members in France, Belgium and the USA of a listed company about potential payments to terrorist groups and alleged violations of international embargos.

Belgian law provides for three categories of offences: 

  • contraventions are offences punishable by a jail sentence of one to seven days and/or a fine of EUR200 or less;
  • misdemeanours are offences punishable by a jail sentence of eight days to five years and/or a fine of more than EUR200;
  • crimes are offences punishable by a jail sentence of more than five years and/or a fine of more than EUR 200.

In principle, a person can only be held criminally liable for an offence if both the material conduct forming the offence and an intent can be attributed to him or her.

However, some offences do not require any intent. Belgian criminal law distinguishes between intentional offences (with a further distinction between offences requiring only a general criminal intent and those requiring a more specific fraudulent intent) and unintentional offences. For intentional offences, the required intent must be proven by the prosecutor, failing which the accused must be acquitted. In recent years, particularly in the area of white-collar crime (eg, securities offences or environmental offences), there have been an increasing number of criminal offences that do not require criminal intent.

A crime is considered inchoate when three conditions are fulfilled, namely when the accused had the intention to commit the crime (which means that no criminal attempt is possible for crimes requiring criminal negligence), the accused has already started to carry out the crime, and the attempt failed or was stopped by the accused due to an external event.

A person may always be held criminally liable for an attempted offence if that offence is punishable by at least five years of imprisonment. For offences punishable by fewer than five years in prison, attempts are only punishable where the law expressly criminalises the attempt.

Limitation periods depend on the corresponding punishment for the offence. For crimes which are punishable with a prison sentence of more than five years, the statute of limitations generally expires after ten years, although it is extended to 15 or 20 years for certain serious crimes. For offences punishable with a prison sentence of eight days to five years, the limitation period expires after five years. Finally, for crimes punishable with a prison sentence of fewer than eight days, the statute of limitations expires after six months.

These periods start running on the day on which the crime was committed. A judgment must be given before the statute of limitations has expired. A crime can therefore become time-barred while criminal proceedings are pending.

A limitation period can be suspended in several situations, for example, during the time needed for the criminal court to hear arguments based on the lack of jurisdiction of the court; or for the entirety of opposition proceedings against a default judgment, if that opposition is later declared inadmissible. It is also tolled for the period during which additional measures of inquiry are carried out at the request of the investigating magistrate or the criminal court.

A limitation period may also start running afresh, and it does so each time either an act of inquiry or an act of prosecution is performed. Acts of inquiry aim at the collection by the investigating authorities of sufficient evidence to bring the case before a criminal court. Acts of prosecution aim at the conduct of the criminal proceedings. Such acts of inquiry or prosecution cannot, however, result in more than a doubling of the original limitation period.

For continuing crimes or repeated crimes that are part of a pattern, the statute of limitations only begins running on the day on which the criminal situation is terminated, or the final crime has been committed. As such, crimes which are part of a pattern may be prosecuted even after their individual limitation periods have expired, provided that the limitation period of the final crime in the pattern has not yet expired.

In principle, Belgian law only allows for crimes committed in Belgium to be prosecuted in Belgium. However, the Belgian Supreme Court has made an extensive interpretation of the situations in which an offence is considered as “committed in Belgium”, which leads to an expansion of the territorial reach of Belgian criminal law. Moreover, there exist legal exceptions that allow for the extraterritorial application of Belgian criminal law.

As a result, an offence is located on the Belgian territory as soon as one of its constituent elements is located in Belgium regardless of the fact that all others took place outside Belgium.

Moreover, when a series of offences constitute the successive execution of the same criminal resolution, the fact that only one of the offences committed to serve this criminal resolution can be located in Belgium gives competence to Belgian criminal courts for those located abroad.

Moreover, there are specific rules allowing for the following persons to be prosecuted in Belgium:

  • a Belgian or a foreign national for crimes against the security of the Belgian State;
  • a Belgian or a foreign national for crimes against the public trust that are committed abroad, such as fraud, counterfeiting Belgian or foreign currency, or forgery of securities, shares, or letters of debt;
  • a Belgian national or a Belgian resident for crimes committed abroad, if they are punishable under Belgian criminal law by at least seven days of imprisonment and are also criminal offences in the country where they are committed;
  • a foreign national for crimes committed against a Belgian national, if the crime is also punishable under the laws of the country where it is committed with a prison sentence of at least five years, and if that foreign national can be found in Belgium;
  • any person when he or she has committed bribery abroad; and
  • any person when he or she is an accomplice to, or assisted in, a crime committed by a Belgian national abroad, if that Belgian national is prosecuted in Belgium.

Since 1999, it has been possible for legal entities to be held criminally liable. Such criminal liability arises for criminal offences which are intrinsically linked to the realisation of the entity’s statutory purpose or the promotion of its interests, or which are committed for its account.

Individuals and legal entities may be held liable for the same offence. Thus, for instance, managers, officers, and directors may be liable for crimes imputable to a legal entity when the constituent elements of the relevant criminal offence exist in their person.

There exists no formal policy on preferential prosecution of either the legal entity or the individuals. In practice, it can be observed that, where both the legal entity and the natural persons may be criminally liable, authorities increasingly prosecute both.

After a merger, the surviving entity can in principle not be held criminally liable for offences committed before the merger by one of the merging entities if the merger resulted in the dissolution of the entity which committed the offence. The surviving entity can, however, be held criminally liable if it was also the pre-merger entity which committed the offence, the aim of the merger was to escape prosecution, or the pre-merger entity which committed the offence was indicted before the merger took place.

In the case of an acquisition, the entity that was acquired simply remains liable for its offences as it was not dissolved. The acquiring entity will in principle not incur any criminal responsibility because of the acquisition.

A defendant may always be liable for damages in tort if the crime caused injury to a third party. The injured party may lodge his or her tort claim either with the criminal court, which will rule on it, or separately with the civil court. The civil court will, however, have to stay its judgment until after the criminal court renders its decision.

A class action can only be launched for alleged violations by an undertaking of its contractual obligations or of specifically enumerated Belgian and EU rules which generally aim at the protection of consumers. If these rules are criminally sanctioned, a class action could potentially be launched by civil parties. This possibility has however never been used.

In March 2019, a draft bill introducing a new criminal code was filed with the Belgian Parliament. Although Belgium is currently facing difficulties in forming a government, there is a good chance that this draft will be adopted once a government is formed.

Among other things, the draft bill provides for new types of sanctions, which allow criminal judges to apply bespoke sanctions. As a consequence, most white-collar offences would no longer only be punishable by fines (or prison sentences for individuals) but also by:

  • an exclusion from public procurement tenders;
  • a monetary penalty, which would consist in the payment of a sum of money calculated on the basis of the anticipated or actual benefit derived "from the infringement and which could go up to three times this benefit;
  • a closure of facilities; and/or
  • services in favour of the community which, for legal entities, would take the form of a budget to be made available for such services.

There is only one criminal enforcement authority, composed of several public prosecutors each of which has jurisdiction over a certain part of the territory and certain areas of expertise

Regarding certain white-collar offences, administrative enforcement is possible. The Financial Services and Markets Authority (FSMA), which is the Belgian supervisor of financial markets, may, for instance, impose administrative sanctions for infringements such as market abuse and the violation of business rules that apply to financial institutions. The National Bank of Belgium also has the power to impose administrative sanctions on credit institutions for infringements that it discovers in the framework of its prudential supervision. Other regulators, such as the agents of the Federal Ministry for Economic Affairs, the Belgian Competition Authority, or the European Commission can also take enforcement actions.

For certain white-collar offences (eg, offences provided by criminal employment law or by criminal environmental law), the law provides for an alternative between criminal and administrative prosecutions. In most cases, an administrative authority is in charge of detecting infringements and must then make the prosecution authority aware of any detected offence. At that moment, the prosecution authority has the opportunity to launch criminal prosecutions. If they fail to do so within a certain period, the administrative authority is free to impose administrative sanctions.

There is no special police force or prosecution authority for white-collar crimes, nor any special courts. However, some members of the public prosecutor’s office are de facto specialised in economic and financial crimes and are used to working with police officers who are similarly acquainted with these matters. Likewise, white-collar crimes are typically tried before specialised chambers of the correctional courts.

Two types of investigation are possible: the preliminary (informal) investigation; and the judicial (formal) investigation.

The preliminary investigation is carried out by the public prosecutor to allow him or her to gather enough evidence to decide whether offences have been committed and should be prosecuted. It may be initiated each time the public prosecutor becomes aware of potentially criminal facts. While general measures of inquiry are allowed, the public prosecutor can only order a limited number of coercive measures.

The judicial investigation is led by an investigating magistrate, and it is usually only used for complex cases or cases requiring inquiry measures that only he or she may order (such as an arrest warrant or a search warrant). Once a case has been lodged with the investigating magistrate, he or she may order any measures of inquiry which he or she deems necessary to uncover the truth, and he or she has the legal duty to look for elements both in favour and to the detriment of the suspect.

There is no exhaustive enumeration of possible measures of inquiry. Instead, the public prosecutor and the investigating magistrate may take all measures necessary to gather sufficient information regarding the alleged crime. However, some measures of inquiry, such as the search of private premises or phone taps, may only be ordered by the investigating magistrate, who issues a warrant.

They may seize or order the production of documents or copy data from databases and networks.

They may demand the production of documents at any time when this is relevant to the investigation. A refusal to produce the requested documents is, in principle, not subject to a sanction. However, a refusal may trigger a search of the premises where the documents are expected to be found.

Since seizures of documents and searches of private homes or offices have as their object bringing the truth to light, they are not limited to the documents or homes belonging to suspects, and documents, homes or offices belonging to third parties may, if necessary, be seized or searched.

In principle, documents covered by privilege – as is the case of documents exchanged with attorneys – cannot be seized.

Whenever it is necessary to bring the truth to light, a suspect may be interrogated. If the suspect is not willing to appear, the police will bring the suspect before them. In that case, the interrogation must take place within 48 hours of the arrest, after which the suspect must be released.

Third persons can be submitted to questioning. If the third party does not co-operate, he or she may be ordered to pay a fine, and a warrant may be issued for him or her to be brought before the investigating magistrate.

A suspect has the right to remain silent and not to incriminate himself or herself. He or she can therefore not be forced to respond to any questions. A third party does not have a right to remain silent, unless he or she has a duty of professional secrecy or would otherwise incriminate himself or herself.

Regardless of whether the person being interrogated is a suspect or not, he or she has the right to be assisted by an attorney during the interrogation.

Internal investigations are not compulsory nor expected to be carried out under Belgian law. However, if an employer wishes to investigate facts which took place within the company, he or she must respect some provisions of employment law that guarantee the right to privacy of employees in their workplace. For instance, he or she cannot search the private mailbox of an employee or place surveillance cameras without notifying their employees.

The result of an internal investigation could be used by enforcement authorities or courts as evidence of a criminal behaviour.

On the part of the company, the fact that an internal investigation was carried out and that internal remedial measures were taken could mitigate the risk of prosecution and/or the level of punishment. It could indeed be seen as an evidence that the company had a policy aimed at preventing criminal behaviour and did not itself favour that behaviour.

Belgium is a party to the European Convention on Mutual Assistance in Criminal Matters. As such, it has the power to request assistance in criminal matters from most other European countries. Belgian authorities are therefore entitled to request that foreign authorities procure evidence, communicate extracts from (and information relating to) judicial records and summon witnesses to appear.

The public prosecutor may request that joint investigation teams be created which contain members of foreign criminal authorities. Such teams may carry out international investigations, although any measures of inquiry performed on Belgian territory must first be sanctioned by the public prosecutor or the investigating magistrate.

As regards extradition, Belgium is a party to more than fifty bilateral treaties and to several multilateral conventions. The Extradition Act of 15 March 1874 sets out the conditions under which these treaties may be executed. Among other things, the Extradition Act excludes the extradition of Belgian nationals. It also provides that extradition may only be performed for offences which are punishable by more than one year of imprisonment both in Belgium and in the requesting state. The jurisdiction ruling on a request for extradition must therefore check both whether the applicable extradition treaty allows for an extradition for the alleged facts and then whether these facts (regardless of their legal qualification) constitute offences in both countries. If these conditions are not met, the requested extradition must be refused. These principles are applicable to white-collar offences.

At the European level, the Council Framework Decision of 13 June 2002 on the European Arrest Warrant has replaced the multilateral conventions on extradition previously applicable between members states. The Framework Decision has been implemented in Belgian law by the Act of 19 December 2003 on the European Arrest Warrant. Under the regime of the European Arrest Warrant, Belgium has agreed to extradite its nationals. The grounds on which a Belgian jurisdiction can refuse an extradition requested by another member state are the following:

  • if the alleged facts are covered by a Belgian amnesty law;
  • if the non bis in idem principle is applicable;
  • if the person subject to the European Arrest Warrant is a minor;
  • if the statute of limitation provided under Belgian law has lapsed (provided that Belgian courts have jurisdiction to rule on the alleged facts);
  • if there has been a violation of the fundamental rights; and
  • if the facts do not constitute an offence under Belgian law (principle of double jeopardy).

This latter ground for refusal is, however, subject to a long list of exceptions made up of offences for which the absence of double incrimination cannot ground a refusal to execute the European Arrest Warrant, provided that these offences are punishable by more than three years of imprisonment, such as bribery, cybercrime, environmental crimes, fraud and forgery of means of payment. 

A criminal case can start either with a preliminary investigation or with a judicial investigation. The way by which the case will then be brought before the criminal court will vary depending on the type of investigation which was carried out in the first place. Although both types of investigations are possible, most white-collar crimes will start with a judicial investigation. 

After a preliminary investigation, it is at the public prosecutor’s full discretion to decide whether to prosecute or not. This choice will generally depend on the results of the investigation and on the prioritisation of prosecutions. However, no formal policy exists in this regard. If the public prosecutor chooses to prosecute the case, he or she may issue a writ of summons which will directly bring the case before the criminal court. In certain circumstances, an injured private party may also bring the case directly before the criminal courts for trial.

After a judicial investigation, the investigating magistrate refers the criminal file to the public prosecutor, who will either request further measures of inquiry or deem that the inquiry is complete. In the latter case, he or she will prepare an indictment act and set the case to a hearing before the investigatory chamber. That investigatory chamber can refer the criminal file back to the public prosecutor for additional measures of inquiry, drop all charges if it considers that there are no sufficient charges against the suspect or that the case has become time-barred, or refer the case to the criminal court for trial.

Suspects of criminal offences which do not entail grave violence against the physical integrity of another person and which are punishable by a jail sentence of no more than two years may be offered a criminal settlement, which require the suspect to pay a certain amount of money, after which he or she can no longer be prosecuted for the facts covered by the settlement. Although a criminal settlement does not involve any recognition of criminal guilt, it entails the recognition of a tort and an obligation to compensate the victim (eg, the tax or social security authorities, or the affected investors). Such a criminal settlement is possible as long as no first instance judgment has been rendered.

When the case has already been brought before the criminal courts, the settlement has to be reviewed by the court. The court will have to carry out a substantive review of the settlement, including whether it constitutes a violation of the right to a fair trial. The criminal settlement only comes into force if it is approved by the court following this substantive review.

Plea bargains were introduced in 2016.

The public prosecutor may offer persons accused of offences, which would not be (in concreto) punishable by more than five years of imprisonment, the possibility to plead guilty and to agree on a sentence, which can be below the statutory minimum. However, this opportunity can only be seized by the accused during the time of the preliminary investigation (led by the public prosecutor) or in the window after the criminal case was referred to a criminal court and before a judgment is given.

After an informal phase of negotiation, the public prosecutor issues a formal and detailed proposal for the guilty plea. Before an agreement can be signed, the accused must have had the opportunity to be informed of his or her rights and of the consequences of the guilty plea by an attorney. He or she must also be given a cooling-off period of up to ten days.

Once an agreement is signed, a court hearing is held. The court must verify:

  • whether all formal conditions for the plea bargain are met;
  • whether the agreement was entered into in a free and informed manner and corresponds to the facts and their correct legal qualification; and
  • whether the punishment agreed on is proportionate to the seriousness of the facts, the personality of the defendant, and his or her willingness to indemnify any potential losses.

If these conditions are met, the court will approve the plea bargain and convict the defendant. In contrast with the criminal settlement, a guilty plea involves the recognition of both civil and criminal liability.

Prohibition of Financial Assistance by the Targeted Company

The Belgian Companies Code prohibits a company to advance funds or to provide a loan or any security for the purchase of its own shares by a third party. This prohibition must be interpreted in a restrictive way and not as a general prohibition of any use of the company’s assets to fund the purchase of its own shares. Other operations are allowed and a distribution of dividends, a share buy-back or a capital reduction by the targeted company can be used to fund the purchase of its own shares, even if the company had to resort to a bank loan to realise these operations.

Legal assistance through an advance of funds or the provision of a loan or of a security is however legal if the board of directors of the company ensures that the operation is carried out under normal commercial conditions, the general assembly of the company allows the operation with a 75% majority, the targeted company provides for a restricted reserve in its annual account equating to the amount of the financial assistance, and the amount for which the financial assistance is provided does not exceed the distributable reserve provided in the latest annual accounts.

It is an unintentional offence, therefore requesting no proof of intent.

It is punishable by imprisonment for one month to one year and/or a fine between EUR400 and EUR80,000 for individuals. For legal entities, the sanction is a fine ranging from EUR4,000 and EUR192,000.

Misuse of Corporate Assets

The offence of misuse of the corporate assets requires that:

  • a manager of a company;
  • makes use of the assets or of the reputation of that company;
  • in a way that is significantly prejudicial to the financial interest of the company or to the financial interest of its creditors or shareholders;
  • for his or her own interest; and
  • with a fraudulent intent.

It is punishable by imprisonment for one month to five years and/or a fine between EUR800 and EUR1.2 million for individuals. For legal entities the amount of the fine ranges from EUR4,000 and EUR960,000.

Other Offences

Most of the other offences that can take place within a company are offences of general criminal law such as forgery, bribery and (tax) fraud. In addition, the Companies Code sets out the obligations that must be complied with in the constitution and management of a company. Many of these obligations are subject to criminal fines.

Belgian law criminalises both bribery and influence peddling.

Both public and private bribery in their active and passive forms are unlawful under Belgian criminal law.

The constituent elements of the offence of passive public bribery are:

  • an author holding a public office;
  • an act consisting of directly or indirectly soliciting or accepting an offer, a promise or an advantage of whatever nature;
  • the purpose of the offence, which must be the influencing of the public officer’s behaviour; and
  • the general awareness and willingness to commit the offence.

Active public bribery requires the following constituent elements: 

  • an act (performed by any person) consisting of directly or indirectly offering, promising or giving an advantage of whatever nature;
  • to a person holding a public office;
  • for the purpose of influencing that person’s behaviour; and
  • with the general awareness and willingness to commit the offence.

The prohibition on public passive/active bribery not only applies in relation to a person holding a public office in Belgium, but also to a person holding a public office in a foreign country or in an international public organisation.

The offence of influence peddling is considered as a type of public bribery. Therefore, it requires the establishment of the same constituent elements, with the exception that in this case the purpose of the offence is not to influence the public officer’s behaviours but to have him or her use his or her (real or alleged) influence to have someone else perform or omit to perform an act. 

Public bribery (including influence peddling) may lead to a prison sentence of six months to 15 years and/or a fine of EUR800 to EUR1.6 million for physical persons. For corporate entities, the fine ranges from EUR24,000 to EUR3.2 million.

Private bribery, whether active or passive, requires the five following constituent elements:

  • a person who is the director of a corporate entity, or the agent or employee of a corporate entity or physical person;
  • solicitation or acceptance (passive bribery)/the promise or the provision (active bribery) of an advantage of whatever nature, with a view to influencing behaviour;
  • as retribution for the act or the omission facilitated by the function of the corrupted person;
  • an act or an omission linked to, or facilitated by, that person’s position without the knowledge of or authorisation from – depending on the circumstances – the board of directors, the general assembly of shareholders, the principal or the employer; and
  • the will to corrupt or to be corrupted.

Private bribery (depending on the type of corrupt act) may lead to a prison sentence of six months to three years and/or a fine of EUR800 to EUR400,000 for physical persons. For corporate entities, the fine ranges from EUR24,000 to EUR800,000.

In addition to prison sentences and fines, other sanctions are applicable to both public and private bribery and may comprise debarring the offender from exerting certain rights (eg, holding public offices) and confiscating the object, the product and proceeds of the act of bribery.

Belgian law does not provide for any specific obligation to maintain a compliance programme aiming at preventing bribery and influence peddling. However, if such offences are perpetrated by individuals within a company, the company may itself be criminally liable if it did not provide for any policy against criminal behaviour. This is true for all criminal behaviour within a company. As a consequence, the presence of a policy for the prevention of criminal behaviour may mitigate the prosecution and conviction risks for the company.

It is a punishable offence of insider dealing for anyone who has insider information, and who knows or should reasonably know that that information is insider information, to use it to directly or indirectly obtain or sell, or attempt to obtain or sell, the financial instrument concerned for his or her own or someone else’s benefit.

Insider dealing may lead to a prison sentence of three months to four years and/or a fine of EUR400 to EUR80,000 for physical persons. For corporate entities, the fine ranges from EUR12,000 to EUR768,000. In addition to fines, the author may be sentenced to pay a monetary penalty up to triple the value of the economic benefit gained from the infringement.

As an alternative to criminal sanctions (which are rarely applied), administrative fines of up to EUR2.5 million and a monetary penalty of up to triple the value of the economic benefit gained from the infringement may be applied.

It is a punishable offence of market manipulation for anyone to, by any means of deception, execute or attempt to execute transactions, place or attempt to place orders, or spread or attempt to spread rumours or information which could either give false or misleading indications as to the supply, demand, or price of a derivative, or could abnormally or artificially influence the activity in the market, the price of the derivative, the transaction volume of the derivative, or a market index.

The sanctions applicable to market manipulation are similar to those applicable to insider dealing.

There are also a number of rules with which a company must comply if it wants to perform regulated activities (such a financial services or real estate brokerage). These rules are often criminally sanctioned.

Tax fraud is criminalised by a very general provision which provides that every person who, intentionally and with an aim to cause harm, violates any fiscal provision (eg, income tax or VAT), commits a criminal offence of tax fraud. These are the only two constituent elements which must be proven by the public prosecutor in order to establish tax fraud.

Tax fraud may lead to a prison sentence of eight days to five years and/or a fine of EUR2,000 to EUR4 million. For legal entities, the fines range from EUR4,000 to EUR8 million.

Belgian law does not provide for any obligation to prevent tax evasion. As long as tax avoidance is reached through legal means, it is in principle not subject to any sanction. However, if the tax administration considers that a person has used the tax legislation in an abusive way –ie, in a way that is contrary to the aim of that legislation, it may attribute to a tax structure another qualification than that given to it by the parties and tax it in accordance with this new qualification. This anti-abuse provision may lead to a higher taxation.

It is a punishable offence to alter the truth of the annual accounts of a company by:

  • placing false signatures;
  • forging documents;
  • forging contracts that are relevant for the establishment of annual accounts; or
  • forging clauses or declarations that the annual account must report.

This offence requires a fraudulent intent or an intention to harm. This offence is only applicable to annual accounts that have been submitted to the approval of the shareholders.

Forgery in the annual accounts is punishable by a prison sentence of up to five years and by a fine of EUR208 to EUR16,000. For legal entities, the fine may go up to EUR240,000.

Anti-competitive behaviours are not (yet) subject to criminal fines but to administrative fines imposed by the Belgian Competition Authority, which is the administrative authority that enforces the Belgian competition rules.

The Belgian Code of Economic Law prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices, the aim or effect of which is to significantly prevent, restrict or distort competition in the relevant Belgian market or in a substantial part thereof. It also prohibits any abuse by one or more undertakings of a dominant position within the Belgian market or in a substantial part of it. In cases of violation of these prohibitions, the Belgian Competition Authority may render a cease-and-desist order and impose an administrative fine on the authors which may amount up to 10% of their annual turnover. In addition, the Belgian Competition Authority may order the payment of penalty amounting to maximum of 5% of their daily turnover per day of non-compliance with its cease-and-desist order.

In addition to the prohibitions aimed at undertakings, the Code of Economic Law further prohibits individuals negotiating on behalf of an undertaking or an association of undertakings, agreements with competitors, which fix the selling prices of goods or services to third parties; limit the production or sale of goods or services; or allocate markets. Violations of this prohibition are punishable by an administrative fine of between EUR100 and EUR10,000.

Violations of the law on consumer protection are criminally sanctioned.

A general provision of the Belgian Code of Economic Law provides that any bad faith infringement of the provisions on consumer protection contained in that Code is subject to a criminal fine ranging from EUR208 to EUR200,000. This catch-all provision sanctions infringements to certain rules such as:

  • the provisions regulating comparative advertising (prohibition of competitor denigration, prohibition against creating a confusion between its products or trademark and those of a competitor, etc);
  • the provisions regulating sales to the public; and
  • the prohibition on use of unfair terms in contracts concluded with consumers. 

However, certain violations are punishable by a lower fine ranging from EUR208 to EUR80,000, regardless of the good or bad faith of the author of that infringement, such as:

  • violation of the obligation to provide the consumer with a number of specific pieces of information in terms of price, quality and quantity of the product sold;
  • violation of the provisions regulating sales (which, for instance, set out the legal period during which sales can take place, the products that can be discounted, how sales can be advertised, etc);
  • violation of the withdrawal rights of consumers or of the information obligations applicable in distance or off-premises contracts;
  • unfair practices towards the consumers (misrepresentation, false free prize or gift, tied selling, etc);
  • violations of the prohibition of forced sales; and
  • violation of the prohibition of unwanted communications, etc.

Some violations of the law on consumer protection are considered as particularly serious and are therefore subject to a heavier punishment. For instance, deceptive pricing is subject to a criminal fine ranging from EUR208 to EUR400,000. Pyramid selling, certain unfair practices (eg, false declaration as to the medicinal or safety qualities of a product), and visits to the consumer’s private home, when he or she expressly asked not to be solicited at home, will result in a fine of between EUR4,000 and EUR800,000.

A variety of criminal offences in relation to cybersecurity are provided by the Belgian Criminal Code. On the one hand, there are specific cybercrimes, such as computer fraud, data sabotage and hacking. On the other hand, general crimes such as fraud, market manipulation or embezzlement may also be committed in a digital context. In this chapter only specific cybercrimes will be discussed.

Computer Fraud

The offence of computer fraud requires that the suspect:

  • entered into a computer system or modified, in anyway, the data stored or managed by a computer system;
  • in order to obtain any kind of financial benefit; and
  • with the intent of obtaining a financial benefit for himself, herself or a third party.

Computer fraud is punishable with imprisonment for six months to five years and/or a fine ranging from EUR208 to EUR800,000. For legal entities, the fine ranges from EUR24,000 to EUR960,000.

External and Internal Hacking

The offence of external hacking requires:

  • intruding and/or remaining on a computer system;
  • without authorisation to do so; and
  • with the intent to penetrate the system while knowing that this is unauthorised.

External hacking is punishable with imprisonment for six months to two years. If the offence is perpetrated with fraudulent intent, the length of imprisonment can go up to three years. In addition to imprisonment, fines ranging from EUR208 to EUR200,000 can be applied to individuals. For legal entities, the amount of the fine ranges from EUR24,000 to EUR576,000.

The offence of internal hacking requires both an overriding of the level of authorisation that the suspect has on a computer system and a fraudulent or malicious intent. It is punishable with imprisonment for six months to three years and/or a fine between EUR208 and EUR200,000 for individuals. For legal companies, the offence is punishable by a fine ranging from EUR24,000 to EUR576,000.

For both external and internal hacking, if aggravating circumstances (such as copying information found on the system, accessing the system of a third party or damaging the system) can be demonstrated, the length of imprisonment can go up to five years and the fines can go up to EUR400,000 for individuals and EUR768,000 for legal entities.

Concealment of Computer Data

The offence of concealment of computer data requires:

  • the detention, disclosure or use of any kind of computer data;
  • which was obtained through external or internal hacking; and
  • with the consciousness and willingness to commit the offence while knowing the data was obtained illegally.

Concealment of computer data exists where the data was obtained from a person who was allowed to access it.

The sanctions applicable to individuals are imprisonment for six months to three years and/or a fine between EUR208 and EUR800,000. For legal entities, the sanction consists of a fine ranging from EUR24,000 and EUR1.6 million.

Computer Sabotage

The offence of computer sabotage requires:

  • the addition, modification or erasure of data contained in a computer system;
  • in the absence of an authorisation to do so; and
  • with the consciousness and willingness to alter the data, knowing that doing so is unauthorised.

Computer sabotage is punishable with imprisonment for six months to three years and/or a fine between EUR208 and EUR200,000 for individuals. The sanction applicable to legal entities is a fine ranging from EUR24,000 and EUR576,000.

If aggravating circumstances can be demonstrated (such as damaging the data contained in the computer system or altering the proper functioning of the system), the length of imprisonment can go up to five years and the fines can go up to EUR800,000 for individuals and EUR1.6 million for legal entities.

The violation of international sanctions, or other kinds of restrictive measures, is generally criminalised.

Violations of international sanctions adopted by the EU are punishable with imprisonment for eight days to five years and by a fine ranging from EUR200 to EUR200,000 for individuals and going up to EUR960,000 for legal entities. Alternatively, violations of international sanctions may be punished by an administrative fine between EUR250 and EUR250,000.

An Act of 2 May 2019 provides that violations of Regulation 2271/96 of 22 November 1996, protecting against the effects of the extra-territorial application of legislation adopted by a third country (the so-called “Blocking Statute”), may lead to administrative fines ranging from EUR250 to EUR5 million for individuals and from EUR10,000 to 10% of total turnover for legal entities.

The offence of concealment requires the possession of the object of the concealment, which object must be the result of an underlying offence that was committed by another person. The author of the concealment must have known that the object was obtained illegally and have the willingness to keep it despite this illegal origin.

Any crime or misdemeanour can constitute the predicate offence, except for mere contraventions (ie, an offence punishable by a jail sentence of one to seven days and/or a fine of EUR200 or less).

In principle, the same person cannot be found guilty of both the predicate offence and the concealment offence. However, this principle is restrictively applied by case law which has found that if a theft was committed in group, a person could be found guilty of theft for the things that he or she personally stole and guilty of concealment for the things which were stolen by the others. 

A person can be held criminally liable for the aid that he or she provides to another in committing an offence if:

  • he or she had the intention to aid in the commission of acts that he or she knew to be criminal;
  • the crime was actually committed by the suspect, regardless of whether or not it succeeded; and
  • the person provided assistance in one of the legally determined forms –ie, by direct co-operation with the offence; by provision of necessary help; by provocation; or in the form of weapons, tools, or any other means necessary for the commission of the crime; or even by intellectual help.

The provision of aid, without which the offence could not have been committed, makes the participant a “co-author”, and his or her participation is punishable by the same sanctions applicable to the authors.

A person who gave useful (but not necessary) help to the author is an accomplice, and his or her participation is punishable with sanctions a level immediately below those applicable to the author.

Money laundering is established if it is proven that a person:

  • bought, received, exchanged, possessed, kept or managed assets derived from a predicate offence while he or she knew, or ought to have known, at the outset of each operation, that those assets had a criminal origin;
  • converted or transferred assets derived from a predicate offence, with the intent to conceal the illicit origin of the funds or to help any person involved in the predicate offence to avoid the legal consequences of its acts; or
  • concealed or disguised the nature or the origin of the assets derived from a predicate offence while he or she knew, or ought to have known, the illicit origin of the funds.

These prohibitions are broadly drafted and construed, and catch almost all the kinds of behaviour that an agent can have towards funds when he or she knows of their illicit origin.

There are no limitations on the offences that can underlie money laundering; all offences can qualify as a predicate offence, even time-barred ones.

The public prosecutor has no obligation to identify or prove the predicate offence. He or she must only demonstrate that no licit origin could be identified for the funds in question.

In terms of prevention of money laundering, the Act of 18 September 2017 on the prevention of money-laundering and of financing of terrorism provides a list of institutions subject to reporting obligations towards the Belgian Financial Intelligence Processing Unit (CTIF-CFI), which is in charge of processing suspicious financial information and transactions linked to money laundering and terrorism financing. The entities subject to these reporting obligations are banks, insurance companies, leasing companies, notaries, accountants, casinos, diamond traders, lawyers, etc. The reporting obligations imposed on these institutions are enforced with a regime of administrative fines ranging from EUR250 to EUR1.25 million for individuals and from EUR10,000 to 10% of turnover for legal entities. These fines may be imposed by diverse supervisory authorities, such as the FSMA, the Ministry of Economy, the Ministry of Finance, etc. 

A company may try to avoid being found criminally liable for an offence by focusing on preventing criminal behaviours within its organisation. Companies are often convicted on the basis of faults in their management, internal structure and governance. Such faults may consist of inefficient delegation (eg, attribution of responsibilities to incompetent persons or insufficient provision of resources to the responsible person), poor communication lines, shortcomings in environmental or safety policy, insufficient training of staff or unreasonable budgetary restrictions.

The presence of compliance policies or other prevention mechanisms may convince the criminal judge to agree to prosecute only the individual(s) and not the company itself because the individual will have breached clearly identified internal rules. In this respect, the sector in which the company operates, and the nature of its activities, is likely to be taken into account in the analysis of whether a more or less stringent standard of diligence needs to be applied. Furthermore, compliance schemes and internal rules should be effectively applied and not remain a mere formality if the company wants them to have any beneficial impact.

Companies will be less exposed to criminal liability where the unlawful conduct occurs only occasionally within the organisation. The more systematic such conduct is, the more likely a company is to be held liable. It is therefore key for companies to develop effective detection mechanisms and ensure any allegations of wrongdoing are adequately followed up.

There are no de minimis exceptions for white-collar offences, nor any exempted industries/sectors. The principle of discretionary prosecution applies and the office of the public prosecutor is therefore free to prosecute anyone for any act that constitutes a criminal offence, regardless of its seriousness. There is no formal policy as to the level of seriousness that would justify criminal prosecution.

Voluntary disclosure of criminal conduct does not automatically result in leniency from the prosecution authorities. However, in practice, such disclosure may help to reach a settlement, a plea bargain, or lighter sentencing.

There is currently no general protection of whistle-blowers under Belgian criminal or employment law, although specific regimes exist in certain cases.

However, Belgium will have to comply with the new EU Whistle-Blower Protection Directive by April 2021. This new Directive introduces sanctions on retaliation against whistle-blowers and protects them from liability related to reporting infringements of EU law (including anti-money laundering, data protection, protection of EU financial interests, food and product safety and environmental protection and nuclear safety). 

Moreover, in some circumstances, some persons may have a duty to report crimes. This is the case, for instance, under Article 30 of the Code of Criminal Procedure, which contains the general obligation for “everyone who has witnessed an attack on public security, or on a person’s life or property” to report those facts to the public prosecutor. A person’s failure to report such facts cannot result in criminal punishment. However, the failure to report the crime may constitute a tort, leading to damages. Article 29 of the Code of Criminal Procedure creates the same obligation for government officials and civil servants, albeit that they must report any crime that they become aware of in the performance of their duties.

Specific legislation also provides for a duty to report in certain cases. For example, Article 25bis of the Act of 2 August 2002 on the surveillance of the financial sector creates the obligation for a financial intermediary in investment services to inform the FSMA of suspected insider trading or market manipulation. Similarly, undertakings falling within the scope of the Anti-money Laundering Act, which includes financial institutions, have an obligation to report any transactions which they suspect relate to money laundering or the financing of terrorism.

As an accused is always considered innocent until proven guilty, the burden of proof lies with the public prosecutor who has to establish every constituent element of the offence. In cases of doubt, the accused must be acquitted.

However, the accused must prove the reality of the defences on which he or she relies. For instance, it is up to him or her to prove the circumstances that justify defences such as force majeure, necessity, acting on government orders, or error.

The standard of proof corresponds to the court’s “personal conviction” that the fact is true. Facts will therefore be considered proven if it appears to the court that the evidence put forward proves these facts beyond any reasonable doubt.

The level of discretion of criminal courts is limited by the minimum and maximum sanctions that are provided for by the law. Within those limits, the court is free to determine the appropriate sanction, taking into account to the severity of the facts.

The limits on the discretion of the courts may be softened in certain circumstances. Firstly, the court may admit extenuating circumstances or aggravating circumstances, in which case, it is allowed to impose sanctions falling outside the legal minimum and maximum. Secondly, repeat offenders may receive heavier punishments than the legal maximum.

Legal entities may be sentenced to a criminal fine, and to a prison sentence which is then converted into a fine. 

Linklaters LLP

Rue Brederode 13
Brussels
1000

+32 2 501 9411

+32 2 501 94 94

francoise.lefevre@linklaters.com/clemence.van_muylder@linklaters.com www.linklaters.com
Author Business Card

Law and Practice

Authors



Linklaters LLP regularly acts on the most significant regulatory and criminal investigations and related civil disputes in the world. The firm provides strategic legal advice on sensitive matters involving anti-bribery and corruption, anti-money laundering, business crimes, fraud, export controls and sanctions, and other related issues. With 30 offices across the world, Linklaters is especially well-equipped to address the most challenging cross-border internal investigations, leveraging its ability to draw upon large multi-disciplinary and multi-jurisdictional teams at short notice. Its collaborative international teams have represented clients before criminal authorities and regulators across multiple jurisdictions and in a wide variety of fields. The firm has excellent insight into relevant prosecutors and authorities. A number of its lawyers have previously held senior positions at national regulators. Recent work has involved assisting several Swiss and Luxembourg banks in their defence against criminal charges based on tax fraud. Linklaters has also advised the board members in France, Belgium and the USA of a listed company about potential payments to terrorist groups and alleged violations of international embargos.

Compare law and practice by selecting locations and topic(s)

{{searchBoxHeader}}

Select Topic(s)

loading ...
{{topic.title}}

Please select at least one chapter and one topic to use the compare functionality.