The new Criminal Code, approved by Parliament on 22 February 2024 to enter into force in 2026, will embody a shift in priorities and introduce some significant novelties, such as ecocide, new sentences such as a profit-based financial penalty, a cap on the main pecuniary sentence for legal entities and a professional ban for such entities.
- New offences, including i.a. ecocide. As of the new code’s entry into force, anyone who intentionally commits an illegal act (including by omission) causing widespread, long-term, and serious damage to the environment will be liable to a prison sentence of up to 20 years for individuals and a fine up to EUR 1.6 million for legal entities, and potentially additional sentences including cleaning up a polluted area (see also below for some other examples).
- A new penalty system providing eight levels of main sentences and replacing the current system in which the main sentence is specifically indicated for each individual offence.
- A cap on the main pecuniary sentence for legal entities which will amount to no more than EUR 5.760k, i.e. the maximum fine for a ‘level eight’ offence. This is lower than some of the current maximum fines applicable to legal entities (e.g. for money laundering or misuse of corporate assets) which are determined based on sentences applicable to individuals. Overall, however, the potential pecuniary impact of sentencing will significantly increase under the new code due to the various additional monetary sentences (see below).
- New main sentences, including:
- Conviction by declaration of guilt: while no main sentence is imposed, additional sentences such as forfeiture remain possible, and the conviction will be recorded in the person’s criminal file.
- Community service by legal entities for an amount of max EUR 360k: e.g. providing IT assistance to a public administration or non-profit organisation or cleaning up a polluted area.
- Profit-based financial penalty: this eye-catching new main sentence for level 1 and 2 offences mandates payment of a sum of maximum three times the pecuniary advantage directly or indirectly derived or anticipated from the offence. This can also be imposed as additional sentence to offences motivated by financial gain on top of other pecuniary sentences such as a fine and forfeiture e.g., for tax fraud or extortion, and significantly enhances the impact of the sentence.
- New or extended additional sentences to further tailor the penalty, including:
- Professional ban: prohibiting the exercise of one’s profession where this was misused to commit the offence.
- Probation for legal entities: i.e., the obligation to temporarily comply with certain conditions, for instance taking safety measures and providing training to staff following a workplace safety violation.
- Multiple adjustments to general concepts such as:
- Criminal attempt: will be punishable for all intentional offences, instead of indicated offences.
- Criminal participation: elimination of the distinction between co-perpetrators and accomplices (‘medeplichtigen’ / ’complices’) with removal of the latter notion and confirmation of general liability of co-perpetrators for all intentional offences.
- Recidivism: simplification and aggravation through a new regime providing, for offences of levels one to six, a facultative and temporarily levelling-up and, for offences of level seven, a mandatory and permanent levelling-up following similar offences.
- Concurrence of offences: sole application of the highest main sentence, mandatory in the event of concurrence with an offence of levels seven and eight and with facultative levelling-up for concurrence between offences of level two to five. Additional sentences for the concurring offences will be cumulated, which can lead to high pecuniary punishment.
Discussions may be anticipated with respect to the principle of non-retroactivity of the new criminal law and in particular determination of the lex mitior. It is still to be identified which novelties can be construed as being more lenient and therefore apt to retroactive application to offences committed prior to the new code’s entry into force.
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