Possibility to enter into a transaction with the Public Prosecutor for tax offences - update

In the Linklaters Legal News of 6 May 2011 regarding the possibility of entering into a transaction with the Public Prosecutor for tax offences, we announced the existence of a draft bill which would amend the newly modified Article 216bis of the Belgian Code of Criminal Procedure (“CCP”). This draft bill has now been formalised into the Law of 11 July 2011 published in the Belgian State Gazette today - (Loi modifiant les articles 216bis et 216ter du Code d’instruction criminelle et l’article 7 de la loi du 6 juin 2010 introduisant le Code pénal social – Articles 2 and 4(the “Law”).

 As a result of the latest amendments made by the Law to Article 216bis CCP:

  • the possibility of entering into a transaction with the Public Prosecutor for tax offences (and other connected offences) will no longer be limited to the situation where the Public Prosecutor considers that he only has to impose a fine or a fine with confiscation for the offence. It is now clearly provided that the transaction is possible when the Public Prosecutor considers that the offence will in practice (notwithstanding the maximum of the criminal penalty provided for by the law for the offence) not lead to imprisonment of more than 2 years or a more severe penalty (including confiscation). This modification will now allow a transaction to be reached for offences that often accompany the tax offence, such as (fiscal) forgery and money laundering;
  •  the amount to be paid by the author and/or participant of the offence, which must be proportional to the gravity of the offence, can at present not exceed the maximum of the fine provided by the law for said offence (increased by additional tenths – these tenths are not applicable for tax fraud, tax forgery or use of tax forgery). For tax fraud, the maximum amount will, as a result, be EUR 125,000;
  • the termination of the criminal proceedings, as a result of the transaction, will be subject to control exercised by the competent Court on the fulfilment of the conditions of the transaction, the acceptance and the fulfilment of the terms of the transaction by the offender and the compensation of the victim and the tax administration.

The Law published in the Belgian State Gazette today will enter into force within 10 days following its publication in the Belgian State Gazette.

Please find enclosed a link to the former note we have sent you on 6 May 2011.

If you have any questions please do not hesitate to contact Angélique Puglisi (+32 2 501 94 82), Emanuele Ceci (+32 2 501 90 82) or your usual Linklaters contact