BELGIUM: An Introduction to Dispute Resolution: White-Collar Crime
Most standard white-collar offences are set out in the Belgian Criminal Code: forgery and use of forged documents, criminal fraud, misappropriation of company assets, bankruptcy-related offences, bribery, concealment, money laundering, breach of trade secrets, computer-related forgery, hacking and digital fraud. The following offences can be found in specific legal acts: insider dealing and market abuse, unlawful provision of credit institution services, tax fraud, violation of financial sanctions, violation of financial record-keeping obligations and social criminal law.
In Belgium, both individuals and legal entities can be held criminally liable for any criminal offence. If a criminal offence has been committed by both an individual and a legal entity, both can be brought (together or not) before the court and convicted by the court if it can be demonstrated that they are individually criminally liable. This means that the crime was materially committed by them and is imputable to them. Regarding imputability to legal entities, a lack of organisation or supervision may result in criminal liability. There is also a tendency in case law to hold criminally liable a person with actual decision-making power who fails to intervene to prevent a crime.
Victims of criminal offences can claim compensation for their loss in both criminal and civil proceedings, provided they can prove that the criminal offence caused damage. If the victim opts for civil proceedings, the civil court must wait for a final decision regarding the (deemed) offender’s criminal liability to avoid conflicting decisions. This often leads to complaints being filed to trigger criminal investigations for the sole purpose of blocking civil proceedings.
If found criminally liable, one risks not only a fine and/or prison sentence, but also professional disqualification, a ban on operation or closure of the business and extensive forfeiture. In practice, the consequences of these sanctions are often much more severe than the (often suspended) prison sentence and/or fine.
In 2024, a new Criminal Code was adopted, which will enter into force on 8 April 2026. Key changes include a regime of sanctions with eight penalty levels, tougher sanctions and new types of sanctions for companies, such as community service for companies and pecuniary penalties which may amount to triple the expected or actual proceeds resulting from the offence. Another notable change is that a participant will incur the same penalty as an offender. Also, the principle that inaction may result in criminal liability if duty-bound is made law by the new code.
A criminal investigation can be initiated by a victim, a witness or the public prosecutor’s office. In white-collar crime matters, investigations frequently stem from reports filed by institutions and individuals mandated by law, including the Belgian Financial Intelligence Processing Unit, the Financial Services and Markets Authority (FSMA) and tax authorities. A criminal investigation can be conducted either by an investigating judge (a judicial inquiry) or by the public prosecutor’s office (a preliminary inquiry). The public prosecutor’s office and the investigating judge both possess investigation powers, including the authority to conduct seizures and interrogations. However, the investigating judge’s powers are more extensive. In principle, the decision to conduct a search of premises rests with the investigating judge.
The number of investigations involving the European Public Prosecutor’s Office (EPPO) is increasing, which leads to complicated procedural situations as the EPPO Regulation and the Belgian criminal procedure are not fully aligned. Criminal investigations may be settled by a lump sum payment to the prosecutor, which results in the charges being dropped. The offender must accept civil liability and pay compensation to the victim for the undisputed part of the damage. In the case of tax or social security offences, the offender must pay the amounts owed with the approval of the relevant authorities. Settlements for corruption offences are rare. An offender may also admit guilt in exchange for an agreed sentence if certain conditions are met.
In terms of prosecution trends, the National Security Plan 2022–2025 identifies tax fraud and serious and organised social fraud as priorities. This includes social dumping, ie, the use of foreign (sub-)contractors and self-employed workers who can provide services in Belgium at much lower costs than the average hourly wage of Belgian employees, which is a major problem, especially in high-risk sectors such as construction, transport, catering, agriculture and cleaning. This has led to significant legislative changes in the Social Criminal Code, adopted in 2024, including a formal definition of “social dumping” and higher fines. Convicted companies can be excluded from public tenders for up to five years.
Prosecution of environmental crimes is also increasing. The Federal Public Health and Environmental Crime Unit (FUPHEC) focuses specifically on the most serious and international criminal activities affecting the environment and public health (waste fraud, illegal trade in protected animals and plants, food fraud and pharmaceutical crime). The new Criminal Code will introduce the offence of “ecocide”, which will criminalise illegal acts that cause serious, long-term and widespread damage to the environment.
Cyber-related crime is also a major concern in Belgium, with ransomware, co-ordinated cyber-attacks, phishing and internet fraud all on the rise in recent years. Businesses are also being targeted, with up to three times more cyber-dependent attacks occurring in Belgium since the beginning of 2020. The majority of these attacks focus on data theft, with government bodies and financial institutions being the main targets of cybercriminals.
White-collar crime also increasingly involves administrative offences. Violations of competition law can only give rise to administrative liability, while prohibited unfair (ie, misleading and aggressive) commercial practices against consumers, social fraud and tax fraud can give rise to both criminal and administrative sanctions, but not simultaneously. Criminal and administrative authorities can have concurrent jurisdiction. Usually, the administrative authority has the choice of either dealing with the matter internally or referring it to the public prosecutor.
Under Belgian law, there are two sets of rules on money laundering: a repressive framework set out in the Criminal Code and a preventive framework set out in the Act of 18 September 2017 on the prevention of money laundering and terrorist financing and on the restriction of the use of cash.
Administrative law is enforced by specific authorities such as the Financial Services and Markets Authority for market abuse, insider trading, money laundering and other offences related to financial services, the Belgian Competition Authority for breaches of competition law, the Federal Public Service Economy for consumer protection and intellectual property offences, the tax authorities for tax fraud and the social security and labour authorities for breaches of social law.
New legislation relevant to white-collar crime includes new rules for private investigations and the implementation of the EU Whistleblower Directive. Since 17 December 2023, Belgian companies with at least 50 employees have been required to have an internal whistle-blowing procedure for reporting violations of the law, including social or tax fraud, which has increased reporting.
From 16 December 2024, companies have had to comply with the new Private Investigations Act for internal investigations. This law requires licensing, prohibits certain investigations, requires formal documentation, enforces data protection obligations and may require the reporting of criminal misconduct to the authorities.