The new Belgian Criminal Code (NBCC) simplifies the legal regime applicable to criminal attempt and participation, but it also punishes them more severely than before.
Wider exposure for criminal attempt
Even where a person or company does not complete an offence, they can still be held liable simply for attempting it – until now, this only applied to serious or specifically named offences. The NBCC changes this significantly: attempt is now punishable for every intentional offence (Art. 9, §1 NBCC; see Freshfields' previous post on the moral element). Some exceptions remain – for example, the NBCC excludes attempt to commit simple bankruptcy or the fraudulent organisation of insolvency (Art. 490 and 492 NBCC).
Attempt is punishable only where two conditions are met: the intention to commit an intentional offence, and commencement of its execution. This excludes negligence-based offences (gross negligence; see Freshfields' previous post) and, according to the parliamentary works, regulatory offences (breach of a legal obligation suffices; see Freshfields' previous post). Exactly which preparatory acts qualify as a "commencement of execution" is left for case law to clarify.
Under the previous regime, a voluntary change of mind used to mean there was no attempt, unless the Public Prosecutor could prove otherwise given the circumstances of the case. Under the NBCC, this burden of proof has shifted to the defendant. The defendant needs to prove the voluntary change of mind to benefit from this defence. Other participants remain liable. For instance, a person who incites a third party to commit an offence can still be liable even if that third party later withdraws.
The NBCC also introduces a second form of attempt as a rule applicable to offences carrying a level 5 penalty or higher (more than 10 years' imprisonment): offering, inciting or accepting an offer or incitement to commit an offence that has no effect for reasons beyond one's control (Art. 9, §2 NBCC). This rarely applies to economic or corporate offences which are generally not sanctioned by a level 5 penalty or higher.
As before, the attempt rules of the NBCC are default rules that apply to offences under the NBCC but also to offences under federal laws and regulations or regional and community decrees, unless expressly excluded (Art. 77, §1 NBCC; Art. 11 of the Law of 8 August 1980). One exception applies for as long as the relevant special legislation has not been updated to expressly refer to the NBCC and its new penalty system: attempt remains unpunishable for offences that would have qualified as misdemeanours (contravention/overtreding) under the old Criminal Code (Art. 78, §3 NBCC).
Simplification and expansion
A person or company that does not itself commit an offence can still be held liable for contributing by participating in it.
Previously, the old Criminal Code split participation into two categories: joint perpetration and complicity.
The NBCC simplifies these rules by merging all forms of participation into a single category of "participant", abolishing the old, lower-penalty "accomplice" category (Art. 19 NBCC). Anyone who participates now faces the same statutory sentencing range as the perpetrator, although courts retain discretion to calibrate the actual sentence to each person's role.
In practice, this extends liability: someone who used to benefit from a capped, lower penalty for merely facilitating an offence can now face the same exposure as the person who committed it.
The NBCC now identifies five forms of participation (Art. 19 NBCC): direct cooperation in the commission of the offence; facilitating its preparation or commission; direct incitement to commit it; a failure to act that thereby directly promotes or facilitates the commission of the offence (omission); and post-factum assistance. Omission and post-factum assistance, developed through case law, are particularly relevant in a corporate setting. Omission: if a director becomes aware of an employee's offence, for instance bribery, and consciously chooses not to act, that inaction can itself amount to encouraging or facilitating the offence. Post-factum assistance – help given after the offence, such as hiding evidence – is only punishable if agreed in advance.
As under the previous regime, participation requires a knowing and wilful contribution to an intentionally committed offence or attempt; merely negligent conduct, or contributing to a negligence-based offence, remains out of scope. The contribution must also be significant – intended to exclude negligible contributions, though case law will need to clarify exactly where that threshold lies.
A wider net for criminal participation outside the NBCC
Unlike before, these participation rules now apply by default to offences under other federal laws and regulations too, unless expressly excluded (Art. 77, §1 NBCC). As before, these rules apply by default to offences under regional and community decrees, unless expressly excluded (Art. 11 of the Law of 8 August 1980). This widens exposure for participation in economic and corporate offences under sector-specific or regional legislation.
In the transitional period, for legislation not yet updated to refer to the NBCC, participation remains unpunishable unless that older legislation already declares the previous participation regime applicable (Art. 78, §4 NBCC).
For participation in offences under regional and community decrees – previously punishable by default – this could leave a temporary gap in liability until those decrees are updated.
Application in time
The NBCC applies to all offences committed on or after 1 September 2026, including continuing offences that straddle that date, for which the applicable law is the most recent one in force. For offences completed before 1 September 2026 but prosecuted afterwards, the more lenient law applies case by case (the lex mitior principle), adding a degree of uncertainty.
For further deep dives into the NBCC's innovations of particular interest to the corporate and white-collar world, see Freshfields' other posts in this series on the moral element, ecocide, and the entry into force of the new Belgian Criminal Code. Freshfields' Brussels disputes and white-collar team continues to advise clients on the practical impact of the NBCC.
Authors:
- Nathalie Colin, Brussels Office Managing Partner at Freshfields
- Silvia Van Dyck, Principal Associate at Freshfields
- Clémence Dalcq, Associate at Freshfields
