Until recently, certain types of legal entities under public law, such as the federal State, the Communities, the Regions and the local authorities, could not be held criminally liable. As from 21 July 2018, this changes with the entry into force of the act of 11 July 2018, which abolishes the criminal immunity of such entities.
The scope of criminal law is not limited to common criminal offences. Particular legislation, such as environmental, privacy and employment legislation, frequently also contains criminal provisions. It is therefore critically important that these legal entities make a new assessment of criminal risk with respect to their activities.
Until recently, certain legal entities under public law enjoyed immunity from criminal prosecution. Criminal liability was excluded for legal entities under public law with directly elected bodies, and also for legal entities under public law with bodies whose composition was indirectly determined by direct elections.
This immunity was justified based on the particular characteristics of these entities compared to other legal entities under public law: because they perform an essential political task, because their bodies are democratically elected, or because they are subject to direct political control. The legislator aimed to avoid the political struggle being conducted by way of a criminal complaint. According to the Constitutional Court, this rule did not breach the principle of equality. In our neighbouring countries there is no general immunity for such legal entities; however, their criminal liability is mostly excluded in relation to the performance of their tasks of general interest.
No more criminal immunity for legal entities under public law
With the act of 11 July 2018, the Belgian legislator abolished the criminal immunity of the above-mentioned types of legal entities under public law. The act brings about a fundamental change, with far-reaching consequences for these authorities.
As indicated in the explanatory memorandum for the legislative proposal, the legislator's primary aim was to regulate the criminal liability of the local authorities – especially the municipalities. This would bring an end to situations where, as the municipality was immune from criminal liability, the mayors or aldermen would be prosecuted because of their function. An example the legislator had in mind was the prosecution of a mayor for a fatal traffic accident on a municipal road that was not adequately lit.
However, the legislator did not confine itself to the municipalities. The principle of criminal immunity will no longer exist for any legal entity under public law. For that reason, other legal entities under public law will also fall within the scope of the new act: the federal State, the Communities, the Regions, the provinces, the emergency aid zones, the Brussels agglomeration, the municipalities, the intermunicipal zones, the intramunicipal territorial bodies, the Flemish Community Commission, the French Community Commission, the Joint Community Commission and the public social welfare centres.
This means that a judge in a criminal case can prosecute any legal entity under public law, without distinction, for a breach of criminal law. A legal entity can only be found guilty (1) if the facts have an intrinsic connection with the realisation of the purpose of the legal entity, (2) if the actions were perpetrated while respecting its interests, or (3) if the actions were perpetrated on behalf of the legal entity. For a municipality, this means that the municipality can be held liable if a staff member threatens a citizen in the execution of the service of the municipality. On the other hand, a municipality cannot be found guilty if these acts were perpetrated entirely with in the private sphere and outside the workplace. A criminal judge can likewise find a public social welfare centre guilty because of corruption guided by the centre's daily management or in favour of the centre's means. However, that will not be the case where the secretary acted to further his own interests without the knowledge of the centre's bodies and if the centre intervened as soon as it became aware of the facts.
The consequences: from no risk to potentially high financial risks
The acts limits the consequences of this equality of treatment with other legal entities. The criminal judge cannot impose a "classic" punishment, like a fine, on legal entities under public law. The judge can only pronounce a simple guilty verdict.
This change may have major consequences for the civil liability of legal entities under public law. To the extent that the breach of criminal law by a legal entity under public law causes damage, the entity will have to pay compensation for the damage caused. Thus, there could be a major budgetary impact. Under the existing legislation, a victim was already able to take legal action and demand compensation if the damage was the result of an extra-contractual fault on the part of the legal entity, but the burden of proof was often very heavy. From now on, the criminal investigation assists the victim in relation to the burden of proof. If the criminal judge finds that criminal law has been breached, the civil fault is established in principle.
The legal entities under public law concerned should therefore carefully consider the consequences of this new legislation and closely monitor the relevant case law. The scope of criminal law is not limited to common criminal offences like unintentional bodily harm (e.g. in case of traffic accidents) or corruption. The particular legislation applicable to these legal entities also often contains criminal provisions, for instance in environmental legislation, privacy legislation, employment legislation and public procurement legislation. A new assessment of the criminal risk by these legal entities is therefore crucial.