Belgian anti-bribery laws strengthened

The offence of bribery is currently governed by articles 246 et seq. (public bribery) and 504bis and ter (private bribery) of the Belgian criminal code (the BCC).

Since 2015, the Belgian parliament has been undertaking the adoption of a series of bills reforming both civil and criminal procedural laws (the so-called ‘Pot-Pourri’ bills). Within this framework, the law of 19 February 2016 “amending criminal and criminal procedure law and containing various provisions regarding justice” – otherwise known as the ‘Pot-Pourri II’ law – contains several provisions amending the BCC in relation to particular offences, including bribery.

In a nutshell, the amendments to the current anti-bribery legal framework consist of:

• the definition of ‘passive’ bribery, be it private or public, being revised; and
• the mandatory sentences for transnational corruption being made more severe.

This new set of rules entered into force on 29 February 2016.

Changes to the definition of public/private ‘passive’ corruption

‘Passive’ bribery, be it public or private, can be defined as a person accepting or soliciting an offer, a promise or an advantage, of whatever nature, to perform or omit to perform an act which falls within the scope of that person’s function, or which is facilitated by it.

This first Pot-Pourri II amendment imposes liability on a person ‘receiving’ this sort of advantage, rather than just accepting or soliciting it, for passive bribery.

In doing so, Belgium is implementing one of the recommendations adopted by the Council of Europe’s Group of States against Corruption (GRECO) in the report on their Third Evaluation Circle on Belgium published in May 2009.

Moreover, Belgium aims to conform to the  interpretation of bribery given by several international conventions, including the Council of Europe Criminal Law Convention of 27 January 1999 on Corruption (ETS 173), also known as the “GRECO Convention”, and the Convention of 26 May 1997 against corruption involving EU officials.

The amendment also reflects the position adopted by the local courts in the case law of recent years, that is, that the mere ‘receipt’ of an advantage (as defined by the law) constitutes an offence of bribery.

Stronger sanctions for transnational (public) bribery

Depending on the offence, the sanctions for public bribery, i.e. bribery by or of a public official, involves jail time and a fine ranging from €800 to €800,000.

The amendment brought by the Pot-Pourri II law increases the amount of the fines by multiplying its minimum by 3 and its maximum amounts by 5 if the person committing the offence (be it the briber or the bribed person) is either:

• A public official from a foreign State; or
• A member of an organisation under public law.

This means that these categories of people could be sentenced, if prosecuted for public bribery, to a fine of up to €4 million.

This amendment directly implements two of the recommendations contained in OECD Phase 3 Report of October 2013 on the implementation by Belgium of the OECD Convention of 17 December 1997 on Combating Bribery of Foreign Public Officials in International Business Transactions (the Anti- Bribery Convention), aiming to ensure Belgium’s compliance with the Anti-Bribery Convention and at reinforcing its current legislation.

However, it remains to be seen whether these stricter sanctions will have an impact in Belgium: case law and efficient prosecution regarding bribery (and in particular transnational public bribery) is relatively scarce, despite the existence of specific prosecuting bodies (the Central Anti-Corruption Law Enforcement Office and The Belgian Financial Intelligence Processing Unit).

Impact?

The changes brought to anti-bribery laws by the Pot-Pourri II reform are not ground-breaking. However, they are the first changes to take place in Belgium in recent years and indicative of a wider international trend.

Their impact should be relatively limited given that the concept of ‘receiving’ a bribe had previously been interpreted by the courts and considered to be implied within the offence’s legal meaning, and given that the prosecution of foreign individuals or members of organisations under public law is fairly rare.

According to the recent reports issued by GRECO (11 January 2017) and the OECD (February 2016), Belgium sits among the ‘bad pupils’ in the EU class when it comes to compliance with international anti-bribery conventions or disposing of sufficient resources to ensure efficient prosecution and enforcement of their local bribery laws. Both GRECO and OECD could only note that despite their previous enquiries, Belgium did not implement many, if any, of their recommendations within its legal framework.

No new bill on anti-bribery law is being contemplated at present,  although these recently published negative reports may put pressure on the Belgian government to do so.