Status of employee involved in company’s tax fraud not an obstacle to prosecution

The Belgian Court of Cassation ruled in judgment P.25.1632.F (currently available in French only) on 5 March 2026 that an employee who is actively involved in the policy of a company is jointly liable for fiscal fraud. The absence of personal benefit and the existence of an employment contract do not constitute an obstacle to prosecution.

Background and facts of the case

A transport company made use of red diesel and lamp oil to power its truck fleet. As a result, the company unjustly benefited from an exemption from or reduction in excise duties. The defendant was an employee (also the stepson of the director) who assisted with the company’s daily administration and, together with the director, made decisions regarding daily operations. The defendant was aware that illegal fuels were being used to reduce the company’s operating costs.

Position of the defendant

The Court of Appeal in Mons confirmed both criminal and fiscal convictions on the defendant. The defendant disputed these convictions on the grounds that:

• He had a subordinate role and merely followed the orders of his stepfather (the director);

• He did not personally gain any financial benefit from the fraud; and

• Joint liability for the evaded excise duties was disproportionate given the above points.

Decision of the Court of Cassation

The Court of Cassation dismissed the appeal and confirmed the conviction by the Court of Appeal in Mons. The defendant is criminally considered a co-perpetrator and, fiscally, remains jointly liable for the payment of all evaded excise duties and interest.

The status of employee does not provide legal protection when one is knowingly and closely involved in organising illegal practices.

Joint liability is a civil consequence arising from the law. The principle of proportionality applies only to measures or sanctions that are criminal in nature.

Analysis of the judgment

For an individual to be criminally convicted as a co-perpetrator or accomplice, it must be proven that there was conscious participation, i.e., the individual knowingly and willingly took part in the fraud. Employee status or the absence of personal benefit does not constitute grounds for excluding guilt. At best, a judge may consider these as mitigating circumstances that can affect the criminal sentence but not the question of guilt.

The same reasoning applies to the fiscal claim. In accordance with article 7 § 1, c) of the Law of 22 December 2009 (“General Excise Regime”) (which is the transposition of article 7 of the Council Directive (EU) 2020/262 of 19 December 2019 (“excise directive”)), debtors of excise duties include persons who have excise goods in their possession as well as “any other person involved in having them in their possession.” Article 7 § 2 of the General Excise Regime provides for joint and several liability among the various debtors. Employee status or the lack of personal benefit is irrelevant under this provision.

This joint liability often leads to harsh situations in practice, because employees are also held liable for payment of excise duties (which can be very high, especially in combination with criminal sanctions).

Moreover, this joint liability extends to the obligation to pay the equivalent value of confiscated goods.

Deloitte Belgium’s comments

The judgment emphasises that employee status is not a “free pass” from criminal and fiscal liability in cases of fraud. It also clearly demonstrates the severity of excise legislation, which also applies in customs matters.

Companies should consider taking proactive measures to prevent involvement in fraud and to raise employees’ awareness of their personal risks. This can be achieved by:

• Creating (legal) awareness;

• Strengthening internal compliance and training;

• Clearly defining tasks and roles;

• Documenting decision-making processes; and

• Conducting risk assessments and if necessary, enhancing controls on internal processes.