In force today: The new Belgian Criminal Code recalibrates the moral element: what it means for liability risks

Wrongful conduct, whether by a person or a company, only triggers criminal liability if it is committed with a particular state of mind. The new Belgian Criminal Code (NBCC), in force as of 1 September 2026, codifies this well-established principle: every offence requires a moral element (Art. 7 NBCC); but the nature of the moral element may vary depending on the choice made by the legislator.

A new default and presumed baseline for all offences

Under the previous regime, where the law was silent on the moral element, it sufficed that the offence was committed consciously and out of free will. This minimal baseline was applied only to regulatory offences, where a mere violation of a legal obligation sufficed to establish the moral element, while other offences require intent or negligence. 

The NBCC extends this baseline to every offence, unless the law expressly demands more, and presumes that this baseline is satisfied. In practice, once the prosecution shows the offender committed the prohibited act or omission, that will generally be enough to establish liability, except if the offender raises an exculpatory ground, such as invincible error or force majeure (to escape conviction). This shift increases liability risk and arguably raises questions under the presumption of innocence.

Gross negligence for unintentional offences

For unintentional offences, only “gross negligence” ( 'zware fout / faute lourde' ) will now trigger criminal liability: a minor lack of foresight or precaution no longer suffices. In practice, whether negligence is “serious” will also be assessed concretely: courts will now look at the offender's expertise, resources, sector practice and the foreseeability of the consequences, rather than relying solely on an abstract “reasonable person” standard. The same conduct could accordingly be a light fault for one operator or sector and gross negligence for another. 

This requirement narrows criminal liability for unintentional offences, although civil liability remains, and the legislator may still carve out exceptions reinstating liability for a simple lack of foresight or precaution (Art. 77 NBCC).

Foreseeability for intentional offences 

For intentional offences, the NBCC codifies case law adopting a broad view on general intent: a person is deemed to ‘act knowingly’ where they are aware that an incriminated circumstance or consequence could exist or occur in the normal course of events. 

An offender cannot escape liability by claiming ignorance of a given circumstance or consequence. 

When an offence requires a 'special intent' (intention to obtain a certain result or act with a certain state of mind), the prosecution must prove that specific purpose, not just knowing conduct.

This still meaningfully widens the scope for establishing intentional liability for general intent offences in situations that might previously have been treated, at most, as negligence. 

Under the NBCC, where ‘special intent’ is required, foreseeability is established only if the relevant result is accepted as being a consequence that would occur in the normal course of events. This test is intended to replace the doctrine of ‘eventual intent’ (‘eventueel opzet / dol éventuel ’), which was criticised for its uncertainty because it focused on acceptance of a probable consequence rather than one that would normally occur. Future case law will need to clarify where that line is drawn.

Discriminatory motive as aggravating factor

Where an offence is committed for a discriminatory motive, based on a broad list of protected criteria mirroring existing anti-discrimination legislation and including ‘discrimination by association’, it will now automatically be treated as an aggravating factor, unless already provided as an aggravating element for a specific offence (Art. 29 NBCC). This is worth bearing in mind wherever discriminatory conduct could arise, including in HR, recruitment and customer-facing contexts.

Corporate liability

The NBCC does not alter the architecture of corporate criminal liability: legal persons remain independently and separately liable alongside, and irrespective of, any liability of the individuals who acted on their behalf. 

The recalibrated moral element described above applies to legal persons in the same way as to natural persons: for example, only a serious failure to meet the standard of care of a normally prudent company will engage its liability for an unintentional offence, and a company can now be found to have acted intentionally where it foresaw (and accepted in case of special intent required) a risk without positively wanting the prohibited outcome to occur. Therefore, for companies keeping their reporting lines effective is important, so decision-makers act on the information that reaches them. This will avoid a discussion after the fact on being deemed to have foreseen what never reached them.

The NBCC enters into force on 1 September 2026, without a transitional regime, meaning the ordinary principles of non-retroactivity for harsher provisions and retroactivity of the more lenient law will need to be applied case by case adding a layer of uncertainty for offences straddling that date (or committed before 1 September 2026 but prosecuted after). 

Check out our other posts in this series here  The time for change is now: the new Belgian Criminal Code | Freshfields and here Ecocide out of the woods: update from Europe and beyond | Freshfields for an overview of the NBCC and further deep dives into the innovations of particular interest to the corporate and white-collar world.