"The level of the sanction can be reduced if a business can show that there were adequate procedures in place designed to prevent bribery."

Ramón Garcia-Gallardo
Partner

1. What is bribery?

Under the Belgian Criminal Code, a distinction is made between active and passive bribery in the private and public sector.

Active public bribery is offering, promising or giving an advantage of any kind, directly or indirectly, to a person exercising a public function either for him/herself or for anyone else, in order to induce him/her to:

  1. perform an act within the scope of his/her responsibilities which is not subject to remuneration;
  2. perform an improper act, or refrain from a proper act, in the exercise of his/her function;
  3. commit an offence in the exercise of his/her function; or
  4. use influence derived from his/her function to obtain performance or non-performance of an act by a public authority.

Passive public bribery is defined as the request or acceptance, directly or indirectly, of an advantage of any kind, for himself/herself or for anyone else, in exchange for a specific action or omission (as set out above).

In Belgium, the following persons are also considered as persons exercising a public function:

  • A candidate for a public function;
  • Anyone who pretends by use of a false identity that he/she will exercise a public function in the future;
  • Anyone pretending to exercise a public function; or
  • Any person carrying out a public function in a foreign state or in a public international organisation.

Active private bribery, on the other hand, is offering, promising or giving an advantage of any kind, directly or indirectly, to a director, manager or other representative of a legal entity or natural person, for him/herself or for anyone else, intending to induce him/her to act or refrain from certain acts within his/her function without the authorization of the board of directors, the shareholders or principal.

Passive private bribery is defined as the request or acceptance by a director or other representative of a company, directly or indirectly, of an offer, promise or advantage of any kind, for him/herself or for anyone else, to do or refrain from certain acts within his/her function, without authorization of the company’s board of directors, the shareholders or principal.

2. What are the exceptions/defences?

There are few defences available once bribery has been proven.

The level of the sanction may be reduced if a business can show that there were adequate procedures in place designed to prevent bribery. In Belgium, companies are encouraged to put in place a Code of Conduct.

3. What are the sanctions?

In the public sector, penalties range from 6 months to 10 years imprisonment and/or €600 to €600,000 in fines. The maximum sanctions apply in case of bribery of police officers, members of the public prosecutor’s office or judges.

In the private sector, penalties range from 6 months to 3 years imprisonment and/or €600 to €300,000 in fines. Apart from the negative publicity, a legal entity could also be added to the public procurement black list. In addition, a company may be denied certain fiscal advantages previously enjoyed.