CMS Expert Guide to Mandatory Reporting of Criminal Offences for Companies and Their Responsible Persons in Belgium

In general, Belgian law does not impose a general obligation on private citizens/companies to report crimes. However, certain criminal offences are legally required to be reported, particularly by professionals or individuals in specific roles:

1.1 Mandatory Reporting

• Failure to assist a person in danger (Article 422bis of the Penal Code): If someone witnesses a person in serious danger and can help without risk to themselves or others, they are legally obliged to do so or to call for help.
• Knowledge of certain serious crimes: Citizens may be required to report crimes such as terrorism or child abuse under specific circumstances.

1.2 Mandatory Reporting by Professionals

Certain professionals have a legal duty to report specific offences, especially when they involve vulnerable individuals:

• Healthcare professionals, teachers, social workers, and police officers must report:
  • Child abuse or neglect
  • Domestic violence
  • Sexual offences
  • Human trafficking
  • Terrorist activities
• Financial institutions, notaries and other professionals are required to report:
  • Money laundering
  • Suspicious financial transactions (under anti-money laundering laws)
• Civil servants have a legal obligation to report crimes and offences of which they become aware in the course of their duties.

1.3 Crimes that must be reported to authorities

Some crimes are so serious that anyone who becomes aware of them is legally obliged to report them, especially if failing to do so could be considered complicity or obstruction of justice. These include:

• Terrorism
• Crimes against minors
• Planned violent crimes (e.g., murder, armed robbery)

2.1 Designated Compliance or Whistleblowing Officer

Companies with 50 or more employees are legally required to establish internal reporting channels under the Act of 28 November 2022 (transposing the EU Whistleblower Directive).

These companies must appoint a designated person or department (often a compliance officer, HR manager, or legal counsel) to handle reports of breaches of Union or national law.

2.2 Senior Management or Board Members

In cases of serious offences (e.g., fraud, corruption, environmental crimes), senior executives or board members may be held accountable for ensuring that the offence is reported to the appropriate authorities.

Failure to report may result in corporate liability or personal liability.

Failing to report a criminal offence or its perpetrator in Belgium can lead to legal and professional consequences, depending on the nature of the offence, the role of the individual, and the context :

3.1 Criminal Liability

Complicity

• If someone knowingly conceals a crime or helps the perpetrator avoid justice, they may be charged as an accomplice under Article 66 of the Belgian Criminal Code
• This includes hiding evidence, misleading authorities, or failing to report when legally required.

Specific Offences

• Money laundering: failing to report suspicious financial transactions can lead to imprisonment (15 days to 5 years) and fines up to €100,000
• Terrorism or child abuse: Not reporting such offences may result in criminal prosecution, especially for professionals with a duty to report.

3.2 Professional Sanctions

Breach of Professional Duty

• Professionals (e.g., doctors, teachers ) who fail to report offences like child abuse or domestic violence may face:
  • Disciplinary action
  • Suspension or revocation of licences
  • Civil liability for damages caused by inaction

Exceptions to Professional Secrecy

• Belgian law allows exceptions to professional secrecy (Articles 458 and 458bis of the Penal Code) in cases involving serious crimes like child abuse, meaning failure to report under these exceptions can be penalised.

Reporting a criminal offence in Belgium—especially as a whistleblower—can carry certain risks, but these are mitigated by legal protections under Belgian and EU law.

The main risks of reporting a criminal offence are the following:

• Retaliation in the Workplace: these risks are particularly relevant in hierarchical or tightly knit work environments where the perpetrator may hold influence.
• Legal or Disciplinary Action: If the report is made maliciously or in bad faith, the whistleblower could face Defamation lawsuits or criminal charges for false reporting
• Social fallout: family or community backlash, particularly in sensitive cases
• Court involvement: the person who reports a criminal offence may have to testify and legal cases can be lengthy
• Limited anonymity: the identity of the person who reports a criminal offence might be revealed during proceedings

There is a risk of accessory criminal liability for both companies and individuals within companies in Belgium, especially under recent legal reforms.

5.1 Accessory Criminal Liability for Companies

Under Belgian law, a company can be held criminally responsible for offences committed:

• In its name or interest
• By a person acting on its behalf (e.g., directors, managers, employees)

Examples of Corporate Liability: Fraud, bribery, or corruption, Environmental crimes (e.g., pollution), Social fraud or labour law violations, Money laundering or tax evasion

Companies may face:

• Fines
• Exclusion from public tender
• Reputational damage
• Asset confiscation

5.2 Accessory Liability for Individuals Within the Company

Individuals such as directors, employees, subcontractors, and agents can now be held personally liable for non-contractual harm caused during the execution of their duties

Key Implications:

• Directors and employees can be sued or prosecuted independently of the company.
• Chain liability applies in areas like social fraud and social dumping, meaning even higher-tier contractors can be held responsible for offences committed by subcontractors
• Intentional misconduct or gross negligence cannot be contractually waived, increasing personal exposure.

Accessory liability may apply if an individual:

• Knew about a crime and failed to act
• Aided or abetted the offence
• Failed to implement or enforce compliance measures
• Ignored red flags or internal reports