Recasting Belgian criminal law: key changes to white-collar offences

The present article, the second in our series on the recasting of Belgian criminal law, compiles the main adjustments to white-collar offences that corporates could potentially be charged with. Click here to read the first article in our series, which focuses on the main changes brought to general principles of criminal law that could potentially impact corporates.

Forgery

• To qualify as an offence, forgery must no longer relate to a writing “protected by law,” but can target any writing or any other durable medium of expression of a thought.
• Even writings or mediums that happen to contain the report of a fact that may have legal effect can be probative, and thus give rise to forgery.
• The offence of computer forgery is included in the general provision on forgery and both will cover informatised and non-informatised mediums.
• No more distinctions are made in terms of penalty according to the type of writing but the second book of the Belgian criminal code links the penalty to the capacity of the offender.
• A large number of provisions which could fall under the general criminalisation of forgery and use of false documents related to special documents that are no longer used or have fallen into disuse. These were therefore deleted with the exception of the offence of transferring a travel or identity document, and the offence of non-observance of a decision revoking a passport, identity card or document valid as such.

Fraud

• The definitions of general fraud and computer fraud are aligned and both offences will be sanctioned in the same manner (i.e., with a level 3 penalty).
• In line with a recent legislative change, the handover of goods is no longer a constitutive element of the offence. It is sufficient that the offender intended to obtain an undue economic advantage.
• An undue economic advantage may consist of a tangible or non-tangible good.
• A pecuniary penalty (peine pécuniaire / geldelijke straf) can be imposed determined on the basis of the expected or actual proceeds resulting from the offence, and may amount to triple said proceeds. 

Private corruption

• A bribery agreement is no longer considered to be an aggravating circumstance. This will make the task of the judge and the public prosecutor easier since proving the existence of an often oral agreement, sometimes even tacit, could present difficulties. In view of this, it was decided to sanction private corruption with a level 2 penalty, which is in line to the penalty previously imposed on private corruption subject to the aggravating circumstance.
• A pecuniary penalty (peine pécuniaire / geldelijke straf) can be imposed determined on the basis of the expected or actual proceeds resulting from the offence, and may amount to triple said proceeds. 
• The offender may be sentenced to a professional ban (interdiction professionnelle / beroepsverbod).

Money laundering

• The second book of the new Belgian criminal code incorporates the recent amendment to the old provision on money laundering that no longer limits the tax money laundering offence to cases of so-called “serious” tax fraud, but also includes “ordinary” tax fraud.
• European law imposes a maximum penalty of four years' imprisonment for all money laundering offences without distinction based on the seriousness of the offence. Consequently, this means that a level 3 penalty is provided for money laundering which for legal persons amounts to a fine of between EUR 360,000 to EUR 600,000.
• Those involved in the money laundering operation, including any intermediaries, may be subject to an optional fine by way of additional punishment, amounting to EUR 200 to EUR 2,000,000 EUR or whose size may be increased to the equivalent of the value of the laundered goods. The legislator has, therefore, strongly increased the maximum fine which previously could amount to up to EUR 10,000.
• The items subject to money laundering are forfeited. Both the object of the money-laundering and the asset gains obtained from the offence are eligible for forfeiture. The direct or equivalent forfeiture of the same property can, however, be made only once. This adjustment reflects the current case law.
• The recently introduced aggravating circumstances in the case of an offender who is a notifiable entity, and the commission of the offence within the framework of a criminal organisation that follow from Directive (EU) no. 2015/849 have also been incorporated into the recast of the Belgian criminal code.

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