Belgium's Anti-Bribery Law

Belgium's anti-bribery and corruption legislation is encompassed within the Belgian Criminal Code (BCC), specifically Articles 246-252 addressing public bribery and Articles 504-bis and 504-ter addressing private bribery. These articles provide the legal definitions, scope, and penalties for bribery offences.

What Constitutes a Bribe?

A bribe in Belgium is defined as a financial or other advantage given or received with the intent to induce or reward the improper performance of a relevant function or activity.

Public Bribery (Article 246 BCC): This occurs when a person offers, promises, or gives an advantage to a public official, directly or indirectly, to influence the performance or omission of an act within the official's duties.

Private Bribery (Articles 504-bis and 504-ter BCC): This involves offering, promising, or giving an advantage to a director, proxy-holder, or employee of a corporate entity or individual, without the knowledge or authorisation of the board of directors or employer, to influence their actions related to their functions.

The term "offer, promise or advantage of whatever nature" is broad, encompassing not only monetary offers but also gifts and benefits in kind. However, small value gifts that comply with standard business practices are generally not considered bribes.

Principal Offences

The main offences under Belgian anti-bribery law include:

Offering, promising, or giving a bribe (Articles 246§2 and 504bis§2 Belgium Criminal Code).
Requesting, agreeing to receive, or accepting a bribe (Articles 246§1 and 504bis§1 Belgium Criminal Code).
Bribery of a foreign public official (Article 250 Belgium Criminal Code).

Jurisdictional Reach

Belgian authorities can prosecute bribery offences if any part of the offence occurs within Belgium. This applies to both public and private bribery offences, ensuring that even partial actions within Belgian territory can trigger jurisdiction.

Liability for Bribery

Liability under Belgian law extends to private individuals, public officials, and legal entities. Companies, as well as their directors and employees, can be prosecuted for bribery offences.

Parent companies are generally not liable for their subsidiaries' actions unless they directly participated in or instructed the bribery.

Facilitation Payments and Political Contributions

Facilitation payments, or small payments to expedite routine governmental actions, are prohibited and considered bribery regardless of the amount. Political and charitable contributions can be deemed bribes if given to induce or reward improper conduct. Political contributions are tightly regulated, with strict limits on the amounts individuals can donate and a complete ban on corporate political contributions.

Corporate Hospitality

Belgian law does not specifically regulate corporate hospitality, but any financial or other advantage given must comply with the anti-bribery provisions. Small promotional items are generally permissible if they do not imply bribery intent and are given on recognised social occasions.

Defences and Enforcement

Belgium does not provide specific statutory defences for bribery offences. The presence of adequate anti-bribery procedures does not exempt entities from liability. The Public Prosecution Office is the primary enforcement body for prosecuting bribery offences.

This contrasts with Section 7(2) of the Bribery Act 2010 in the UK, which allows a company to defend itself by proving that it had 'adequate procedures' in place to prevent bribery. The case of Skansen Interiors Limited is notable for its conviction on bribery charges due to the company's failure to implement adequate internal controls within its business operations.

Legal Consequences for Bribery in Belgium

The penalties for bribery in Belgium are severe:

Public Bribery: Imprisonment ranging from 5 months to 15 years and fines from EUR 800 to EUR 800,000. For legal entities, fines can go up to EUR 1.6 million.
Private Bribery: Imprisonment from 6 months to 3 years and fines from EUR 800 to EUR 400,000. Legal entities face fines up to EUR 800,000.

Additional sanctions include confiscation of criminal property, disqualification from holding directorship positions, and debarment from public contracts.

Deferred Prosecution Agreements (DPAs)

Belgium allows for settlement mechanisms such as DPAs under certain conditions, where the prosecutor can offer a settlement to avoid prosecution. These agreements are subject to judicial review to ensure fairness and proportionality. This type of agreement is similar to Deferred Prosecution Agreement in the UK. An example of that is when Serious Fraud Office entered into £497.5 million DFA with Rolls Royce Plc

What is a Deferred Prosecution Agreement ?

A DPA is a statutory means by which a company can account to a court for conduct without suffering the full consequences of a criminal conviction, which might include international disbarment from competition for public contracts.

Notable Bribery Cases

1. Gunvor Case:

Swiss-based commodities trader Gunvor paid $662 million to settle in fines and pleaded guilty for bribing foreign officials to secure oil deals. Although prosecuted in Switzerland, the case had significant implications for Belgium due to the company's operations and dealings in the region.

“Over nearly a decade, Gunvor representatives bribed high-level government officials at Ecuador’s state-owned oil company to enter into business transactions with other state-owned entities that ultimately benefited Gunvor. As a result of this complex bribery scheme, Gunvor obtained hundreds of millions of dollars in illicit profits,” -Acting Senior Counsellor Brent S. Wible of the U.S. Justice Department’s Criminal Division.

2. Semlex Case:

Semlex, a company involved in issuing biometric passports, faced allegations of bribery involving officials in Madagascar.

"Belgian company Semlex Group paid a former top official in Madagascar’s government at least $140,000 — and possibly much more — in unexplained fees, according to leaked company emails that appear to show a quid pro quo to secure a lucrative contract to produce passports".

3. Unnamed Public Official Case:

In 2021, a Belgian court convicted a public official for accepting bribes to award public contracts, resulting in imprisonment and fines. This case underscores the strict penalties for public bribery in Belgium.

These cases exemplify Belgium's commitment to enforcing its anti-bribery laws and the severe consequences for violating these regulations. For more detailed information on Belgian anti-bribery legislation, you can refer to the [Belgian Criminal Code].

Sources Credit: OCCRP, Serious Fraud Office UK, Swiss Federation, Legislation UK

Legal Analysis by: Sarvesh Saxena, Barrister, Bar of England & Wales. Authorised to conduct unreserved legal services. No Rights of Audience.

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Legal Disclaimer: This article is intended for general informational purposes only and does not constitute legal advice. It may not reflect the most current legal developments and is not guaranteed to be accurate or complete. No attorney-client relationship is established by this article. Readers are advised to seek professional legal counsel from a qualified attorney in their jurisdiction before making any legal decisions.

The author disclaims all liability for any actions taken based on the content of this article. Any views or opinions expressed are those of the author and do not necessarily reflect the official policy or position of any other agency, organisation, employer, or company.

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