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04.09.18 Criminal liability of legal persons undergoing change

Corporate
September 4

A law of 11 July 2018 amends Articles 5 and 7bis of the Criminal Code with regard to the criminal liability of legal persons. The amendments, which entered into force on 30 July 2018, concern two subjects: the rules on the non-concurring liability of legal and natural persons and the liability of legal persons governed by public law.

1. Concurrence of liabilities of natural and legal persons now possible: 

Previously, Article 5 of the Criminal Code prevented the natural person and the legal person from being systematically convicted at the same time: when the legal person's liability was incurred exclusively because of the intervention of a natural person, only the person (natural or legal) who had committed the most serious offence could be convicted. This provision therefore provided a cause of release for the person who committed the least serious fault where the offence was not committed "knowingly and intentionally".

Since 30 July 2018, this rule of non-concurring liability has been purely and simply abolished. Article 5 now stipulates: "The criminal liability of legal persons does not exclude that of natural persons who have committed or participated in the same acts".

This is a significant change.

2. Liability of legal persons governed by public law:

Previously, for the application of Article 5 of the Criminal Code, the federal State, the regions, the communities, the provinces, the Brussels agglomeration, the municipalities, the French Community Commission, the Flemish Community Commission, the Joint Community Commission and the Public Centre for Social Welfare (PCSW) could not be considered as legal persons criminally liable.

From now on, any legal person can be criminally liable, with the following nuance for the mentioned legal persons governed by public law: only a penalty consisting of a "mere conviction of guilt" may be imposed on the latter (thus excluding fines, dissolution, prohibition from practising, etc.).

Luc Germonpré +32 2 787 90 61 luc.germonpre@lydian.be
Virginie Bazelmans
 • +32 2 787 90 40 virginie.bazelmans@lydian.be