Recasting Belgian criminal law: key changes impacting corporates

Spirit of the reform

The reform is firmly rooted in a modernisation vision for the Criminal Code that dates back to… 1867! The draft bill contains several changes with three main goals: modernising, simplifying and making the new rules easier to read and understand. By drawing on practical insights, it seeks to streamline the process of qualifying offences while maintaining the paramount goal of ensuring enhanced legal certainty. Furthermore, this recast deliberately shifts focus from often-criticised imprisonment sentences, striving instead for a more flexible approach, where imprisonment is considered only as a last resort measure.

Classification of sentences into eight different levels

One of the most prominent parts of the reform relates to the recast of the sentencing regime. The reform encapsulates a new sentencing regime with sentences categorised in eight levels with a clear distinction between the sentences applicable to legal entities and those applicable to individuals.

With a view to simplification, the draft bill profoundly modifies the repressive arsenal applicable to legal entities. Among other things, it provides for new penalties, and it abolishes the overly complicated table for conversion of prison sentences into fines for companies. For instance, under the New Criminal Code, a level 4 penalty for legal entities consists of a fine ranging from over 600,000 euros to 800,000 euros.

For each level, various primary sentences are provided, which may also be paired with accessory sentences. Within the same level of offence, the magistrate may mix penalties, as well as move up or down a level based on various factors, including aggravating factors or extenuating circumstances. For instance, the judge may move up a level if there is a prior offence.

Finally, it is to be noted that fines provided in the new Code will no longer have to be multiplied by the “décimes additionnelles / opdecimes” as it is the case under the current regime (which currently results in an eightfold increase of the fines set out in the Criminal Code).

Influence of the new sentencing regime on lex specialis

Except if explicitly provided otherwise, Book I of the (current) Criminal Code criminal applies to criminal offences that are set out in specific legislation (e.g. Tax Codes, the Act of 2 August 2002 on the supervision of the financial sector, etc.). This principle would remain, and it stands under the New Criminal Code.

The draft New Criminal Code therefore provides for a conversion mechanism whereby the sentences provided for in specific laws are converted into sentences belonging to one of the eight separate levels. This conversion mechanism consists, in a nutshell, in identifying the maximum sentence that could have been imposed by a criminal judge under the old regime and to identify the categories to which this same sentence belongs under the New Criminal Code.

This mechanism will only apply to the extent that the legislator has not already adapted the "old" incrimination to the rules of the New Criminal Code.

New sentences

The draft bill also adds new sentences:

• the “community service” for companies (prestation en faveur de la communauté / diensten ten gunste van de gemeenschap): which is the equivalent for companies to the work penalty applicable to individuals. This sanction isn't however about CEOs donning orange vests to clean up the streets as a punishment for the companies' actions. Rather, the judge may impose, with the company's consent, the obligation for the corporate entity to provide certain positive contributions to the community. The judge must determine the budget (up to 360,000 euros) that the convicted corporate entity must allocate to the community service and may provide guidance regarding its specific content and execution methods.
• the “pecuniary penalty” (peine pécuniaire / geldelijke straf): which is distinct from fines and confiscations and may amount to triple the expected or actual proceeds resulting from the offence. This sanction may be imposed if the judge deems that a fine is insufficient to ensure proper deterrence. This pecuniary penalty may also be imposed as an additional sentence, in addition to the primary penalty. Therefore, if an individual acquired 20,000 euros through fraud, they would face not only other penalties but also the confiscation of this amount, as well as potential conviction to pay up to 60,000 euros as a pecuniary penalty, determined based on the profit obtained.
• the “guilty verdict conviction” (condamnation par déclaration de culpabilité / veroordeling bij schuldigverklaring): which is currently restricted to instances of unreasonable delay or for public legal entities but will be, under the reform, extended to cases where the judge considers the offense to be minor or where the passage of time makes alternative penalties impractical.

New rules regarding punishable attempts

Another relevant innovation is the expansion of punishable attempts to all intentional offences. Currently, attempts to commit crimes are punishable while attempts to commit misdemeanors are not, unless specified by law. Under the new regime, this distinction will cease to exist. The attempt of an offence rooted in negligence will not be punishable.

The attempt will be sanctioned by the immediately lower level of sentence. For offences of level 1, the judge might impose the sentence for the consummated offence, or the accessory sentence provided for level 1 offences, if applicable.

New rules regarding punishable participation

In the interest of clarity, the new Criminal Code explicitly outlines various forms of participation in an offence. Participation by omission is thereby incriminated, as is participation after the offence if there was prior collusion.

The distinction between the co-perpetrator and the accomplice is abandoned. Both the perpetrator of the offence and anyone involved in it, particularly by facilitating its preparation or execution, will face identical penalties.

These rules on punishable participation apply exclusively to intentional offences, requiring a demonstration of intent to participate in the offensc to establish the mens rea. We will further explore the consequences of these new rules on the liability of directors in a subsequent article.

The New Criminal Code is expected to come into effect two years after its publication in the Belgian Official Gazette, which is anticipated to be sometime in the year 2026.

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