Elisabeth Dehareng* (Baker McKenzie Brussels)
1. Domestic bribery (private to public)
1.1 Legal framework
Bribery of public officials is regulated under Articles 246 to 252 of the Belgian Criminal Code (the “Public Bribery Statute”).
1.2 Definition of bribery
The Public Bribery Statute distinguishes between passive bribery and active bribery:
Passive bribery is the act by a public official, directly or indirectly, of requesting, accepting or receiving an offer, promise or benefit for himself or for a third party, in exchange for performing, or refraining from performing, any act falling within the scope of his responsibilities.
Active bribery is the act of offering, promising or giving a benefit, directly or indirectly, to a public official, to his own benefit or that of a third party, in order to induce him to perform or refrain from performing any act falling within the scope of his responsibilities.
Both active and passive bribery are prohibited when aimed at:
- having a public official perform a lawful act, within the scope of his office, which is otherwise not subject to payment;
- having a public official perform an unfair act in the exercise of his office or refraining from performing an act falling within the scope of his office;
- having a public official commit a crime or misdemeanour in the exercise of his office; or
- the use by a public official of the real or supposed influence that he wields as a result of his function, to obtain an act of a public authority or administration, or the omission of this act (so-called influence peddling).
The key element of bribery is that the action or inaction of the public official must have been conducted, or have been intended to be conducted, in connection with a gift, an offer, or other benefit or the promise of a gift, or an offer of the foregoing. The terms gift, offer, promise and other benefit permit a broad interpretation of the subject matter of the Public Bribery Statute. Bribery does not depend upon the number or value of the gifts or offers. A gift of little value is sufficient to constitute a bribe in the appropriate circumstances. In addition, a simple offer or solicitation of a bribe is illegal, even if it is not accepted.
In order to establish bribery, it is not necessary to prove that a corrupt pact (agreement between the corrupter and the corrupted person) exists. However, a corrupt pact (agreement) is an aggravating circumstance.
1.3 Definition of public official
The provisions of the Pubic Bribery Statute apply to “any person who holds a public office,” that is, a person employed by the Belgian federal or regional governments or any Belgian governmental agency, department or subdivision, or any local or regional body as well as persons elected in public elections or any other person, even a private person, entrusted with a “public service mission.” The Public Bribery Statute does not define the concept of “public service mission.” According to the definition given by the courts, “public service” must be understood as “an activity of general interest.” A case-by-case analysis must be made in order to determine whether a particular company is entrusted with a public service mission.
The Belgian Supreme Court ruled in 2016 that passive public bribery (in a case of influence peddling) requires that the person whose influence is solicited be a person who “holds a public office.” It is, however, not the status of such person that is the determining factor in that respect, but the function that such person exercises and that must itself have a ‘public character.’
In addition, the Public Bribery Statute also covers the following:
(i) Any public official of a foreign state (this notion is to be interpreted in accordance with the functional interpretation given to the notion of person entrusted with a “public service mission” in Belgium, and covers at least persons recognized as such in the relevant foreign state)
(ii) Any official working for an organization of public international law (e.g., the European Commission and the European Parliament), except for non-governmental and sports organizations (e.g., the International Olympic Committee or the International Association Football Federation [FIFA])
(iii) Anyone who is a candidate for public office
(iv) Anyone who, through false pretences, leads someone to believe that he will hold or that he holds a public office.
1.4 Consequences of bribery
Persons committing active or passive bribery are subject to sanctions under Belgian law. The mere requesting or the mere offering can also give rise to sanctions.
Penalties are higher if the request for bribery is eventually followed by a payment or if the offer of a bribe is accepted. It is worth noting that although the value of the gift – whatever its nature may be – is irrelevant in the event of bribery as the mere intention to bribe matters, the higher the value of the gift, the more likely it is that “intent to bribe” will be presumed.
(a) For the individuals involved
(i) Principal sanctions
- Imprisonment from six months up to 15 years
- Criminal fines ranging from EUR600 up to EUR600,000
The gradation of the sanctions depends on criteria that are found in Articles 246 to 249 of the Criminal Code.
It is also worth noting that if the public official is a police officer or a member of the Public Prosecutor’s Office, all penalties are doubled.
If the bribed public official is an arbitrator, a judge-assessor, a juror or a judge, penalties are increased to up to 15 years’ imprisonment and up to EUR 600,000 in
fines.
Pursuant to the Act of 5 February 2016, where the corruption set forth under Articles 246 to 249 of the Criminal Code concerns a person exercising a public function in a foreign state or in an organization of public international law, the minimum possible criminal fines is tripled and the maximum is quintupled.
Entering into a corrupt pact (i.e., an agreement between the donor and the public official), whether in writing or orally, is also considered as an aggravating circumstance.
(ii) Accessory sanctions
The following accessory sanctions may notably apply:
- Prohibition on performing any public function for a certain period of time
- Dispossession of civil and political rights for a certain period of time
- Special confiscation
- Exclusion from exercising certain functions, professions or activities in the commercial sector
- Disciplinary sanctions for state agents
- Tax consequences
(iii) Obligations of public officials
Pursuant to Article 29 of the Code of Criminal Procedure, any public official who, within the scope of his functions, is aware of the existence of a criminal offense (including bribery), is obliged to directly inform the Public Prosecutor thereof and to transmit to the latter any and all information, reports and acts related thereto.
This provision was amended in 2016 to include specific rules in case of offenses to tax laws.
(b) For the company/legal entity
(i) Principal sanctions
- Imprisonment sanction is converted into fines, from EUR 18,000 up to EUR 2.16 million
- Criminal fines ranging from EUR 600 up to EUR 600,000>
(ii) Accessory sanctions
- Exclusion from public procurement procedures
- Exclusion from the list of authorized companies for public procurement
- Dissolution of the company
- Tax consequences
- Reputational damages following publication of the circumstances surrounding the offense in the press
1.5 Political contributions
Any financial support or donation, including in-kind donations, to political parties by legal entities are strictly prohibited under Belgian law (see Article 16 bis of the Act of 4 July 1989, on the limitation and supervision over electoral expenses and the financing and transparent Global Overview of Anti-Bribery Laws 2016 accounts of political parties). Only individuals (natural persons) may give gifts, including donations, to political parties and to their components, to electoral lists, to politicians or even to candidates for a political mandate.
According to the Act of 4 July 1989, political parties and members thereof are not permitted to receive from the same individual a contribution in excess of EUR 500 or equivalent per year.
In addition, an individual may not contribute more than EUR 2,000 or equivalent per year to political parties and politicians. Any contribution made by an individual to a political party in the amount of EUR 125 or above must be registered by the political party.
Please note that the Act of 4 July 1989 also prohibits donations by a natural person who actually acts as an intermediary for a legal entity.
Should a company offer or make such a donation, both the company (and, as the case may arise, the individual who would, in fact, act as an intermediary for such a company) and the politician or candidate who accepts the gift may be subject to criminal fines of up to EUR 600,000.
The prohibition is quite broad and will apply even in the absence of a “quid pro quo” situation
Since 1 January 2015, the Act of 4 July 1989 includes a limitation on cash payments to political parties and/or their members (donations of EUR 125 or more have to be transmitted by electronic means) as well as a possibility for legal entities, under certain conditions, to sponsor political parties and/or their members. Such sponsoring must notably be in exchange of advertising and must correspond to market price.
Sponsoring above EUR 125 must be duly recorded and amounts are limited during periods preceding elections. Anyone who would grant sponsorship in violation of the aforementioned rules may be subject to criminal fines of up to EUR 600,000
1.6 Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)
Belgian law does not impose mandatory thresholds regarding the offering or receiving of gifts and hospitality.
It is worth noting that normal business entertainment, such as occasional reasonably priced business breakfasts, lunches and dinners, and other business-related entertainment, are generally acceptable if there is no intention to obtain something in return from the public official, and if it clearly has a business purpose and the expenses are reasonable. Unusual business entertainment and expensive gifts and offers could give rise to a “presumption of bribery.”
Generally, small gifts / hospitality acts of modest value may be given (e.g., small promotional items with the company’s logo) if they: (i) fall within the bounds of propriety, are a normal expression of courtesy or within the normal standards of hospitality; (ii) are not such as to bring suspicion on the recipient’s objectivity and impartiality; and (iii) would not compromise the integrity of the recipient.
In practice, although there is no official guidance in that respect from Belgian authorities, as a rule of thumb, the value of such gifts should not exceed, on a cumulative basis, EUR 30 to EUR 50 per year and per recipient. Acts of hospitality offered should always remain reasonable. Meals in the amount of EUR 35 to EUR 40 would usually be considered as acceptable, with a calendar year limit of EUR 125.
It is worth noting that specific rules and expenses limitations for hospitality apply in determined sectors, in particular in the pharmaceutical / life sciences industry. These rules and limitations are notably set in professional codes of conduct such as the Code of Deontology (Articles 29bis and 31, 2bis) of the Medicines Association Industry (pharma.be) and the Code of Ethics (Article 5) of the Health Deontological Platform (Mdeon), as well as in their respective guidelines.
2. Domestic bribery (private to private)
2.1 Legal framework
Private (or commercial) bribery is regulated under Article 504 bis and 504 ter of the Private Bribery Statute.
2.2 Definition of private bribery
The Private Bribery Statute applies to all persons not covered by the public bribery provisions, that is, private persons (both legal entities and individuals).
The Private Bribery Statute defines private bribery as occurring when any person who, in his capacity as director, manager, proxy holder or employee of a legal entity, or proxy holder or employee of a natural person, requests, accepts or receives an offer, promise or benefit, on his own or on behalf of a third party, in exchange for adopting a particular position within the scope of his responsibilities without the authorization and knowledge of the board of directors, the shareholders, the principal or the employer. Any person offering a bribe to a private person may commit private bribery, provided that the former is acting without the authorization or knowledge of his superior.
The Private Bribery Statute and the Public Bribery Statute make the same distinction between passive bribery and active bribery:
Passive bribery is the act of a private person requesting, accepting or receiving an offer, promise or benefit, directly or indirectly, 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 authorization of and without informing his board of directors, general shareholders’ meeting, principal or employer.
Active bribery is the act of making an offer or promise, or offering a benefit to a third party, directly or indirectly, on his own behalf or on behalf of a third party, in order to induce the third party to perform or refrain from performing an act falling within the scope of his responsibilities, or made easier by his position, without the authorization of and without informing his board of directors, general shareholders’ meeting, principal or employer.
The Private Bribery Statute’s provisions cover employees and representatives of all forms of legal entities, including limited liability companies, public limited corporations and non-profit associations, among others.
Under Belgian law, a request is punishable even if not followed by a proposal to pay by the prospective payor, or if the proposal is not accepted. In order to establish bribery, it is not necessary to prove that a corrupt pact between the corrupter and the corrupted person exists, although a corrupt agreement is an aggravating circumstance. In order for the request or offer to be punishable, the public prosecutor will have to prove that the intent of the donor, when he made the request or offer, was to influence the private person.
2.3 Consequences of private bribery
Private bribery is punishable only if the person acted without the knowledge and without the authorization of his or her superior (the board of directors, the general meeting, the principal or the employer, as the case may be).
(a) For the individuals involved
(i) Principal sanctions
- Imprisonment from six months to three years
- A criminal fine ranging from EUR600 to EUR300,000
The gradation of the sanctions depends on whether the proposal for passive bribery is followed by a proposal for active bribery, as well as whether the proposal for active bribery has been accepted.
(ii) Accessory sanctions
Additional sanctions (e.g., exclusion from exercising certain functions, professions or activities in the commercial sector) may be applicable.
(b) For the company/legal entity
(i) Principal sanctions
- Imprisonment sanction converted into fines from EUR18,000 to EUR600,000
- A criminal fine ranging from EUR600 to EUR300,000
(ii) Accessory sanctions
Additional sanctions (e.g., exclusion from public procurement procedures) may apply.
Entering into a corrupt pact (i.e., an agreement between the donor and the private person) whether in writing or orally is an aggravating circumstance.
2.4 Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)
Please refer to Section 1.6., it being noted that the decisive criterion for private bribery is the absence of knowledge of, and authorization from, the concerned person (i.e., board of directors or general assembly or principal or employer) to adopt a particular attitude.
3. Corruption of foreign public officials
3.1 Legal framework
Corruption of foreign public officials is regulated under Article 250 of the Public Bribery Statute, which refers to Articles 246 to 249 of the same statute. This is, however, without prejudice to the applicability of applicable foreign laws, such as the UK Bribery Act or the US Foreign Corrupt Practices Act, where relevant.
3.2 Definition of corruption of foreign public officials
Please refer to Section 1.2., as the same definition applies to both Belgian and foreign public officials.
3.3 Definition of foreign public official
Please refer to Section 1.3.
3.4 Consequences of corruption of foreign public officials
The penalties that apply to public bribery also apply when the bribery concerns a person holding a public office in a foreign state or in a public international organization, it being noted that, in such case, the minimum possible criminal fines is tripled and the maximum is quintupled (please refer to Section 1.4).
Moreover, such offenses can, in most cases, be prosecuted in Belgium regardless of foreign elements, pursuant to Article 10 quater of the preliminary book of the Belgian Criminal Instruction Code. This section notably recognizes the jurisdiction of Belgian authorities to prosecute any individual who infringed, even outside the Belgian territory, Article 250 of the Public Bribery Statute, where: (i) the official is a Belgian citizen working in a foreign state or in an international public sector organization or where the international public sector organization the official is working for has its seat in Belgium; and (ii) any Belgian citizen or any person having its main residence in Belgium, provided that the deed is sanctioned by the laws of the state where it has been committed.
3.5 Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)
Please refer to Section 1.6.
4. Faciliation payments
Belgian law prohibits facilitation payments (i.e., making payments to a government official to facilitate or expedite the performance of a routine governmental action, such as obtaining permits, licenses or other official documents and processing of governmental papers).
Such facilitation payments will indeed be considered as a benefit granted to a government official for the performance (or the omission) of his duties and therefore fall under the prohibition of the anti- bribery provisions of the Public Bribery Statute.
In addition to the public and private bribery provisions, the following legal provisions must be mentioned:
- Article 311 of the Public Bribery Statute sanctions anyone who, by any fraudulent means, increases or reduces the price of public goods, furniture and papers.
- Article 314 of the Public Bribery Statute sanctions those who, in public tenders, perturb the freedom of auctions and/or submissions by way of violence, force, gifts, promises or any other fraudulent means. The commission of such offense may lead to the annulment of the relevant contracts.
5. Compliance programs
5.1 Value of a compliance program in mitigating/eliminating the criminal liability of legal entities
The Public Bribery Statute does not recognize a compliance program as an instrument to mitigate or eliminate the liability of legal entities before corruption has been committed.
However, foreign legislation, such as the UK Bribery Act, could expose a legal entity’s liability for the mere absence of sufficient measures to prevent its employees or authorized representative from committing bribery.
5.2 Absence of a compliance program as a crime
The Public Bribery Statute does not treat the absence of a compliance program as a crime.
5.3 Elements of a compliance program
(a) Legal framework
The Public Bribery Statute does not regulate the elements of a compliance program.
(b) Recommended practice
It is strongly recommended that legal entities adopt a robust compliance program. Such a compliance program should notably encompass a sufficiently broad definition of public sector and public officials, as well as indicate a suitable threshold for the value of permitted gifts and hospitality according to best practices (see Section 1.6 above).
It is worth noting that almost all governmental bodies and enterprises entrusted with public service missions have anti-bribery provisions, either in the statute establishing the body or enterprise, or in the internal rules or codes of conduct.
Over the last few years, more and more emphasis has been put on corporate responsibility, amongst others, with respect to anti-bribery practices. Initiatives have been implemented at the Belgian Federal and local levels to encourage companies to voluntarily implement corporate responsibility plans.
6. Regulator with jurisdiction to prosecute corruption
The Belgian legal system does not have a specific court with exclusive jurisdiction to prosecute corruption. Any public prosecutor could request that a judge start a corruption investigation. However, in practice, the Belgian system has a group of judicial prosecutors called the Central Office for the Repression of Corruption, which specializes in prosecuting corruption.
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