The Belgian legal landscape of criminal law and criminal procedure has changed over the past years and is bound to be amended even more substantially with a view to improving the efficiency of the judicial, investigative and prosecutorial functions. After several years of uncertainty, the legal framework for criminal settlement is now set as a result of landmark Supreme Court cases and subsequent legislative reforms. The prosecutorial policy is strongly in favour of settling financial and economic criminal cases which effectively translate as an increase in criminal settlements. Cross-border co-operation between judicial and regulatory authorities is intense both at EU and global level. Financial intermediaries continue to be a point of focus in fraud matters, especially in complex cross-border cases.
- Investigations trends/developments
- Significant law reforms impacting corporate criminal liability
- Internal investigations – key developments
- Sectors targeted by law reforms or enforcement action
- Cross-border co-ordinated enforcement activity
- Financial crime issue predictions for 2020
We have seen an increase in enforcement action for i) corruption; (ii) terrorism; (iii) cyber criminality; (iv) human trafficking; and (v) economic and financial crime, including tax fraud. These are all 'priority subjects' identified by The Belgian College of Prosecutors General (BCPG), whose mission includes setting Belgian criminal policy.
The use of alternative resolution mechanisms for criminal matters has continued to rise, following recent amendments to the Criminal Code on criminal settlements. Criminal settlements can be entered into by entities and individuals. BCPG guidelines (2018) state that a criminal settlement should be considered by prosecutors for certain offences listed in the guidelines, including economic, financial, tax and labour offences.
The largest settlement ever reached with Belgian authorities was finalised in September 2019 in a cross-border tax fraud matter involving a Swiss bank, for EUR300 million.
There have been several amendments to criminal law and criminal procedure rules aimed at improving the efficiency of the judicial, investigative and prosecutorial functions. Among these legislative reforms, the law on criminal settlements and the law on the confiscation and seizure of criminal assets were amended following several landmark Constitutional Court cases.
The law on corporate criminal liability has also been reformed and expanded, in that individuals and corporate entities may now be prosecuted jointly for engaging in the same criminal conduct (this was possible only to a limited extent previously). Further structural changes are expected and a bill proposing a new Criminal Code a just been introduced in Parliament.
There is no regulatory or statutory framework dealing with internal investigations under Belgian law. Corporates are free to conduct internal investigations in parallel with criminal or regulatory investigations without any positive duty to disclose the results of the investigation.
The materials produced in the process of an investigation can be seized by the authorities in the context of a search. However, they can be protected by legal privilege if they have been produced and sent by a solicitor.
Because of the opacity of money flows in complex cases, Belgian prosecutors tend to focus more intensely on financial intermediaries when investigating and prosecuting fraud matters. While it is often difficult for them to arrest the actual fraudsters, who may be abroad, act through the internet or have no traceable assets; the entities which make transactions possible are generally well-established companies that are easier to prosecute. Charges against these companies are often based on aiding and abetting.
There is increased cross-border co-operation in criminal investigations (eg mutual assistance, appointment of joint task forces on specific cases) and also in regulatory investigations (eg investigations conducted by tax authorities).
We are also seeing an increase in cases that are initiated and investigated at EU level by the European Anti-fraud Office (OLAF) and then subsequently submitted to authorities of Member States for prosecution. We expect that this trend will continue to develop as the European Public Prosecutor’s Office becomes operational.
There is an increasing propensity for Belgian prosecutors to resort to criminal seizure and confiscation, especially in complex cross-border cases involving money laundering and corruption. Recent amendments to the law have broadened the possibilities of criminal confiscation and seizure under Belgian law and have entirely reformed the functioning and powers of the Belgian Asset Recovery Office.
The following issues will stay high up on the agenda for 2020: detecting and preventing corrupt practices, data protection breaches and cyber security attacks, money laundering and sanctions/embargoes.
This article is part of the Cross-border White Collar Crime and Investigations Review. Read our overviews and insights in other jurisdictions here.
Allen & Overy LLP's group has been handling cases of money laundering, tax fraud, embezzlement, and cybercrime, among other areas. Regulatory investigations and compliance matters are additional core strengths. Nanyi Kaluma is noted for her expertise in cross-border money laundering and bribery investigations. Joost Everaert was rated as Leading Individual and Nanyi Kaluma as Next Generation Lawyer.
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