New criminal code : what is the risk of criminal participation for directors?

No more distinction between co-perpetrators and accomplices

The Belgian Criminal Code currently distinguishes between the status of author or co-perpetrator (art. 66) and that of accomplice (art. 67). According to case-law, the distinguishing criterion is whether the assistance provided is necessary (co-perpetrator) or merely useful (accomplice).

Article 19 of the new Criminal Code no longer makes this distinction. This new provision, which will determine, in certain situations, the extent to which a director may be held criminally liable for offences perpetrated within the company, now provides as follows:

[Those who knowingly and willingly make a significant contribution to an offence in the manner and within the limits set out below are considered participants and may be punished as perpetrators:

1° those directly involved in its execution;

2° those who facilitate the preparation or execution of the offence;

3° those who directly provoke the perpetration of the offence;

4° those who, by their inaction, directly encouraged or facilitated the perpetration of the offence;

5° those who provide aid or assistance to the perpetrator after the offence has been perpetrated if they have previously agreed to do so.

(...) ]

From now on, each person considered as having made a significant contribution to the final result of the offence is considered a “participant” without any distinction being made between a principal (co-perpetrator) or accessory contribution (accomplice). Under the new Criminal Code, the participant necessarily incurs the same penalty as the offender.

Conditions of punishable participation

For participation to be punishable, four conditions must be met:

1. The existence of a punishable offence or attempt (to which the act of participation relates)

In essence, acts of participation relate to the perpetration of an offence or to the attempt to perpetrate such an offence. If there is no offence, there can be no participation. The condition of the existence of a punishable offence (or attempt) raises the question of the requirement of a causal link between the conduct incriminated as an act of participation and the principal offence: between the criminal act and the act of participation there must be an uninterrupted and logical chain of events, such that the offence may appear in "germ" in the act of participation.

2. The participant's willingness to contribute to the perpetration of the offence

In principle, all criminal liability implies a moral element on the part of the agent (whether perpetrator or participant). In the case of punishable participation, this requirement takes the form of a knowledge element and a will element: participants must have contributed "knowingly and willingly" to the offence.

For participation to be punishable, the participant must have knowledge of all the circumstances necessary to make an act of the principal perpetrator an offence; the meeting of the wills, in its dual aspect of knowledge and intention, must relate to a specific offence and not to any offence whatsoever; however, while participants must know the purpose and nature of the action in which they have taken part, the law does not require them to have been informed of all the details of execution of the offence in order to merit punishment.

3. A significant contribution to the perpetration of the offence

Participants are those who deliberately and knowingly make a significant contribution to the perpetration of the offence. The words "contribute significantly to an offence" mean that, without the act of participation, the offence would not have been perpetrated as it actually was.

The act of participation must have had some influence on the perpetration of the offence. The words "significant contribution" have been specifically added to prevent persons who have made a negligible contribution to an offence from being punished as participants. Punishable participation must not be extended to persons who had no influence on the causes or perpetration of the offence.

4. The completion of one of the participation acts provided for by law

Article 19 of the new Code lists the behaviors that constitute punishable participation in the perpetration of an offence. Acts which do not correspond to one of these modes of participation are not punishable.

For an accused person to be convicted as a participant in an offence, it is not necessary for the acts of participation to contain all the elements of the offence, or for the participant to have the requisite intent to perpetrate the offence in which he or she is participating; it is sufficient for the perpetrator to have perpetrated the offence, and for the participant to have knowingly and voluntarily cooperated in the execution of the offence by one of the means of participation defined by article 19 of the new Criminal Code. The trial judge is sovereign in his or her assessment of this question, based on the facts of the case.

More precisely? 

1. Does the new system increase the risk for company directors? 

From a theoretical point of view, it could be argued that this is the case. Indeed, under the current regime, a director who could be considered to have provided only useful and unnecessary assistance to the offence would be a mere "accomplice" to the perpetrators of the offence. As a mere "accomplice", he would be exposed to a lower level of sanction.

Insofar as the distinction between co-perpetrator and accomplice disappears in favor of a standardization of the participation regime, a director who "participates" in an offence is now subject to the same sanctions as those who perpetrate the offence.

However, this observation calls for a few qualifications.

On the one hand, under the current Criminal Code, courts and tribunals very rarely accept that the assistance provided by a participant can be considered as merely useful rather than necessary. As a result, participants are often considered to be co-perpetrators, and are therefore already subject to the same sanctions as principal perpetrators.

On the other hand, although the sanction regime for participants is aligned with that for perpetrators, it allows the judge a wide margin of appreciation. It is therefore likely that the sanction will differ significantly depending on the agent's degree of involvement.

In addition, it is made clear that a negligible contribution to an offence is not punishable. It remains to be seen how courts will behave in that respect.

2. Can a director be held liable for a regulatory offence ? 

Yes, provided that it is established that the director in question has provided a form of cooperation provided for by law in the knowledge that he or she is collaborating in the perpetration of the offence, and that he or she intends to do so had knowledge of the offence. In this respect, the principles have been clarified but not fundamentally altered.

3. Can a director be considered a participant in a criminal offence because of an abstention or omission? 

On this point too, the new Criminal Code codifies the current trend in case law. The new Criminal Code explicitly provides that encouraging or facilitating an offence through inaction is a punishable form of participation.

It is now clear that a mere omission is not punishable. In principle, participation presupposes a "positive" contribution by the participant to the offence.

The behavior incriminated by the criminal participation regime does not consist of a simple omission. To trigger criminal liability, inaction must reflect positive, explicit and unequivocal participation, which cannot be assimilated to a simple omission. It is for example the case of the voluntary abstention of an agent who has a duty to act because of a legal or contractual obligation.

Thus, a director who commits a simple omission does not, in principle, incur any risk of criminal liability. On the other hand, a director who finds himself in a situation where a duty to act is incumbent upon him (for example, by virtue of his "duty of care", by virtue of conflict-of-interest rules or by virtue of contractual obligations) but refrains from acting in a way that appears to encourage the offence, incurs criminal liability

If you wish to know more, feel free to reach out to our experts .