1. Bribery in the home (private to public)
1.1 The Legal Environment
Bribery of public officials is prohibited under Belgian Criminal Code Articles 246 to 252 (the “Public Bribery Statute”).
1.2 What does bribery mean?
Passive bribery and aggressive bribery are defined in the Public Bribery Statute:
The act of a public official asking, accepting, or receiving an offer, promise, or benefit for himself or for a third party in exchange for performing, or refraining from executing, any act coming within the scope of his obligations is known as passive bribery.
Active bribery is the act of directly or indirectly offering, promising, or providing a benefit to a public official, for his or a third party’s advantage, in order to encourage him to perform or refrain from performing any act within the scope of his obligations.
Bribery, both active and passive, is prohibited when it is intended to: have a public official perform a lawful act within the scope of his office that is otherwise not subject to payment; have a public official perform an unfair act in the exercise of his office or refrain from performing an act falling within the scope of his office; or have a public official commit a crime or misdemeanor in the exercise of his office (so-called influence peddling).
Bribery requires that the public official’s action or omission be carried out, or intended to be carried out, in exchange for a gift, an offer, or other benefit, or the promise of a present, or an offer of the foregoing. The terms gift, offer, promise, and other advantage allow for a broad interpretation of the Public Bribery Statute’s subject matter. Bribery is not determined by the quantity or value of gifts or offers. In the right circumstances, a small present can be enough to be considered a bribe. Furthermore, even if a bribe is not accepted, a simple offer or solicitation of a bribe is prohibited.
It is not essential to prove the existence of a corrupt pact (agreement between the corrupter and the corrupted person) in order to prove bribery. A corrupt contract (agreement) is, on the other hand, a vexing scenario.
1.3 What does it mean to be a public official?
The provisions of the Public Bribery Statute apply to “any person who holds a public office,” that is, anyone 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 people elected in public elections or anyone else entrusted with a “public service mission,” including private individuals. The term “public service mission” is not defined under the Public Bribery Statute. “Public service” must be viewed as “an activity of general interest,” according to the courts’ definition. To assess whether a corporation is entrusted with a public service role, a case-by-case review must be performed.
In 2016, the Belgian Supreme Court held that passive public bribery (in the instance of influence peddling) requires the person whose influence is sought to hold a “public office.” However, the role that such a person performs, which must have a “public character,” is the decisive factor in this regard, not the standing of such a person.
The Public Bribery Statute also applies to the following:
Any foreign public official (to be read in accordance with the functional interpretation provided to the notion of person entrusted with a “public service task” in Belgium, and to cover at least those recognized as such in the relevant foreign state)
Except for non-governmental and sports organizations, any official working for an organization of public international law (e.g., the European Commission and the European Parliament) (e.g., the International Olympic Committee or the International Association Football Federation [FIFA])
Any person running for public office.
Anyone who deceives others into believing that he or she will hold or is holding a public office.
1.4 Bribery and its Consequences
Bribery, whether active or passive, can result in legal consequences in Belgium. Sanctions might be imposed just for requesting or giving something.
If a bribe request is followed by a payment or if a bribe offer is accepted, the penalties are increased. It’s worth emphasizing that, though the value of the present – whatever it is – is irrelevant in the case of bribery because only the intent to bribe matters, the higher the gift’s value, the more likely “intent to bribe” will be presumed.
Principal sanctions for the individuals involved
From six months to fifteen years in prison
Fines for criminal offenses range from EUR 600 to EUR 600,000.
The severity of the penalties is determined by factors set forth in Articles 246 to 249 of the Criminal Code.
It’s also worth mentioning that all penalties are quadrupled if the public official is a police officer or a member of the Public Prosecutor’s Office.
If the bribed public official is an arbitrator, a judge-assessor, a juror, or a judge, the penalty is enhanced to 15 years in jail and a fine of up to EUR 600,000.
The minimum possible criminal fines are tripled and the maximum is quintupled under the Act of 5 February 2016, where the corruption set forth in Articles 246 to 249 of the Criminal Code involves a person exercising a public function in a foreign state or in an organization of public international law.
An aggravating circumstance is entering into a corrupt contract (i.e., an agreement between the donor and the public official), whether in writing or informally.
Adjunct sanctions
The following additional sanctions may be applicable:
For a set amount of time, you are prohibited from performing any public function.
For a set period of time, you will be deprived of your civil and political rights.
Confiscation with a difference
Exclusion from performing particular commercial roles, professions, or activities
Agents of the state are subject to disciplinary action.
Tax ramifications
Obligations of public officials
According to Article 29 of the Code of Criminal Procedure, any public official who becomes aware of the existence of a criminal offense (including bribery) while performing his or her duties is required to immediately notify the Public Prosecutor and to transmit all relevant information, reports, and acts to the latter.
This clause was updated in 2016 to incorporate explicit guidelines in the event of tax law violations.
I Principal sanctions for the company/legal entity
Fines range from EUR 18,000 to EUR 2.16 million, depending on the length of the sentence.
Fines for criminal offenses range from EUR 600 to EUR 600,000
Adjunct sanctions
Refusal to participate in governmental procurement procedures
Exclusion from the list of authorized public-sector contractors
The corporation was dissolved.
Tax ramifications
Damages to one’s reputation as a result of the circumstances around the offense being publicized.
1.5 Contributions from politics
Financial assistance or donations to political parties by legal entities, including in-kind gifts, are severely 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). Individuals (natural persons) are the only ones who can provide gifts, including donations, to political parties and their constituents, electoral lists, legislators, and even political candidates.
Political parties and their members are not allowed to accept more than EUR 500 or equivalent per year from the same individual, according to the Act of 4 July 1989.
Furthermore, an individual may not give to political parties or politicians more than EUR 2,000 or equivalent every year. Any contribution of EUR 125 or more given by an individual to a political party must be registered by the political party.
Please note that a natural person who works as an intermediary for a legal company is likewise prohibited from making a donation under the Act of July 4, 1989.
If a firm offers or makes such a donation, both the firm (and, in some cases, the individual who would act as an intermediary for such a firm) and the politician or candidate who accepts the gift may face criminal penalties of up to EUR 600,000.
The restriction is fairly wide, and it will apply even if no “quid pro quo” situation exists.
Since 1 January 2015, the Act of 4 July 1989 has imposed a limit on cash payments to political parties and/or their members (donations of EUR 125 or more must be made electronically), as well as the ability for legal entities to sponsor political parties and/or their members under certain conditions. Sponsorship must, among other things, be in exchange for advertising and at a market price.
Sponsorships of more than EUR 125 must be properly registered, and amounts are restricted in the run-up to elections. Anyone who grants sponsorship in contravention of the aforementioned criteria could face fines of up to EUR 600,000 in criminal penalties.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
Belgian law does not establish any minimum requirements for the giving or receiving of gifts or hospitality.
Normal business entertainment, such as occasional reasonably priced business breakfasts, lunches, and dinners, are worth highlighting.