International Law Advisory - Belgium passes law expanding the definition of bribery and extraterritorial jurisdiction over acts of bribery committed outside Belgian territory

On Friday, May 4, 2007, new antibribery legislation went into effect in Belgium that, among other things, expands the definition of bribery as well as the jurisdiction of Belgian courts over acts of bribery committed outside Belgian territory.  This law was passed following the Organization for Economic Cooperation and Development (OECD) report on the application of antibribery laws against the bribery of foreign public officials in Belgium in 2005.

First, the new legislation clarifies that Article 246 of the Belgian Criminal Code, which defines the concept of “active bribery” (or the proposal of a promise or benefit in exchange for undertaking a specific action), shall apply to the granting, directly or indirectly, of any type of advantage to a person exercising a public function.  This clarification was made in response to comments on the part of the OECD that the Criminal Code as previously drafted did not clearly specify that simply granting a benefit was sufficient to constitute active bribery.  This change applies the expanded concept of active bribery to acts relating to public bribery (involving foreign public officials) and private bribery (involving company directors or other representatives).  Thus, the giving or promising of any type of advantage, including gifts or entertainment items such as golf memberships, now clearly falls within the ambit of Belgian antibribery laws, as long as the gift or entertainment is provided in exchange for a specific action on the part of the recipient.

In addition, the new legislation also contains two unusual and expansive provisions asserting extraterritorial jurisdiction.  The first extends the jurisdiction of Belgian courts to include prosecution of acts of bribery committed outside Belgian territory by persons of Belgian or foreign nationality where such acts of bribery are committed against Belgian public officials or foreign public officials working for public international law organizations with a registered office in Belgium.  This provision essentially appears to codify an “effects” test for jurisdiction, in contrast to the territoriality and nationality supply-side provisions which are more commonly found in transnational bribery laws.  The second provides for Belgian courts with jurisdiction over prosecutions of acts of bribery committed by a Belgian citizen or person residing principally in Belgium and involving persons carrying out a public function in a foreign state or in a foreign public international law organization.  This latter provision thus appears to assert nationality jurisdiction, as permitted by the OECD Antibribery Convention and reflected in the U.S. Foreign Corrupt Practices Act (“FCPA”) and transnational bribery laws of a few other countries.  However, in contrast to the FCPA, which establishes an independent offense (with a statutory affirmative defense for local law), this provision is limited by the condition that the bribery in question must be punishable by the laws of the country in which the bribery takes place.  We will be monitoring how these two provisions are applied in practice.

Further, the new legislation simplifies the definition of “foreign public official” under Belgian law to mean any person carrying out a public function in a foreign state or in a public international law organization.  However, the commentary to the new legislation notes that the notion of a public function must be interpreted according to Belgian law, resulting in a broader definition that includes managers of private companies who perform certain public functions, and is more expansive in scope than that contained in the OECD convention.  For example, someone carrying out, in a foreign state, a function corresponding in whole or part to that of a notary public in Belgium could be considered a foreign public official under Belgian law.  Thus, the new legislation is in line with the OECD Convention, which serves as a baseline for anti-corruption laws of member countries and provides that the definition of a "foreign public official”—including the definition of public function—shall be autonomous and independent of local law, but allows some scope for local law to establish a broader definition of the same.

Finally, in another example of the OECD’s influence over member countries, the new legislation adopts a general prohibition recommended by the OECD prohibiting anyone from claiming a tax deduction for any type of advantage granted to a foreign public official.

In sum, Belgium’s new law expands the scope of Belgium’s antibribery laws and follows a recent trend towards conformity with OECD recommendations.  We will continue to keep you apprised of this and other developments related to international regulatory compliance issues. If you have any questions regarding Belgian anti-corruption laws, please contact Jean Russotto at 011.322.626.0505; Michael Olislaegers at 011.322.626.0500; or Lucinda Low 202.429.8051.