Chambers - Anti-Corruption 2023 - Anti-Corruption - 2023

CHAMBERS GLOBAL PRACTICE GUIDES
Anti-Corruption
2023
Definitive global law guides offering
comparative analysis from top-ranked lawyers
Contributing Editors
Kiril Bougartchev and Emmanuel Moyne
Bougartchev Moyne Associés AARPI
practiceguides.chambers.com
Global Practice Guides
Anti-Corruption
Kiril Bougartchev and Emmanuel Moyne
Bougartchev Moyne Associés AARPI
2023
Chambers Global Practice Guides
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Contents
INTRODUCTION ITALY
Contributed by Kiril Bougartchev and Emmanuel Law and Practice p.185
Moyne, Bougartchev Moyne Associés p.5 Contributed by Pistochini Avvocati Studio Legale
Trends and Developments p.210
AUSTRALIA Contributed by Cagnola & Associati Studio Legale
Law and Practice p.10
Contributed by Clayton Utz NIGERIA
AUSTRIA Contributed by Threshing Fields Law
Contributed by Rohregger Rechtsanwälte NORWAY
CANADA Contributed by Wikborg Rein Advokatfirma AS
Contributed by McMillan POLAND
CHILE Contributed by DeBenedetti Majewski Szcześniak
Law and Practice p.74 Kancelaria Prawnicza Sp.k.
Contributed by Bofill Escobar Silva Abogados
PORTUGAL
CHINA Law and Practice p.255
Law and Practice p.91 Contributed by Morais Leitão, Galvão Teles, Soares da
Contributed by Global Law Office Silva & Associados
Contributed by Han Kun Law Offices ROMANIA
COLOMBIA Contributed by Enache Pirtea & Asociatii
Contributed by Fabio Humar Abogados SINGAPORE
Trends and Developments p.124 Law and Practice p.287
Contributed by Fabio Humar Abogados Contributed by Drew & Napier LLC
FRANCE Contributed by Rajah & Tann Singapore
Contributed by Bougartchev Moyne Associés SPAIN
Contributed by DLA Piper France LLP Contributed by Geijo & Associates SLP
GREECE Contributed by Geijo & Associates SLP
Contributed by ANAGNOSTOPOULOS SWITZERLAND
Contributed by Ovvadias S. Namias Law Firm Contributed by Kellerhals Carrard
Contributed by Monfrini Bitton Klein
3 CHAMBERS.COM
Contents
UK
Contributed by Brown Rudnick LLP
USA
Contributed by Freshfields Bruckhaus Deringer LLP
Contributed by Harris St. Laurent & Wechsler LLP
4 CHAMBERS.COM
INTRODUCTION
Contributed by: Kiril Bougartchev and Emmanuel Moyne, Bougartchev Moyne Associés
Anti-corruption: the Global Picture

We are truly delighted to introduce the sixth edi- Even though it is still too early to evaluate the
tion of the Chambers Global Anti-Corruption impact of the COVID-19 pandemic on the levels
Guide. The purpose of this Guide is to provide of corruption throughout the world, 2021‒22 is
an overview of the current state of anti-bribery marked by the release of key reports assessing
and anti-corruption law in 24 countries, as well the enforcement of the Anti-Bribery Convention.
as offer valuable insights into enforcement poli-
cies, trends and potential developments in this The OECD Phase 4 report on France
area, based on the opinion of leading lawyers in As regards France, the OECD Working Group on
their respective countries. Bribery published its Phase 4 report on 9 Decem-
ber 2021 and welcomed the significant increase
The 2021 OECD Anti-Bribery in the number of investigations opened in the
Recommendation: a new reference norm country since Phase 3 in October 2012. It none-
On 26 November 2021, the OECD Council ‒ com- theless emphasised the relatively low number of
prising the 44 countries party to the Convention cases resolved in light of the country’s economic
on Combating Bribery of Foreign Public Officials situation and trade profile, as well as the num-
in International Business Transactions (the “Anti- ber of foreign bribery allegations reported in the
Bribery Convention”) ‒ published the 2021 OECD media. In December 2022, France is expected
Anti-Bribery Recommendation (the “2021 Anti- to submit an oral report on its implementation
Bribery Recommendation”), which supersedes of some recommendations considered essential
the 2009 Recommendation in order to reflect the in maintaining the progress made since Phase
development of key topics that have emerged or 3 ‒ for example, the increase of the resources
significantly evolved in the anti-corruption field available to investigators, prosecutors and trial
during the past ten years. judges. A written report on the implementation
of all recommendations will be submitted in
The 2021 Anti-Bribery Recommendation encour- December 2023. The follow-up reports will be
ages countries to: publicly available.
• strengthen the enforcement of foreign bribery The Transparency International 2022

laws, including through proactive detection Exporting Corruption report
and investigation of foreign bribery, more In October 2022, Transparency International
effective international co-operation among released the 14th edition of its Exporting Cor-
law enforcement authorities and co-operation ruption report. This independent review of the
in multi-jurisdictional cases; foreign bribery performance of 47 leading export
• implement extensive provisions to ensure countries encompasses 43 of the 44 parties to
effective protection of whistle-blowers in the the Anti-Bribery Convention, as well as China,
public and private sectors; and Hong Kong SAR, India and Singapore. The
• incentivise companies to develop compliance report intends to complement the OECD Work-
programmes to prevent and detect foreign ing Group on Bribery’s monitoring process.
bribery.
5 CHAMBERS.COM
INTRODUCTION
Transparency International raises significant con- corruption agencies around the world approach
cerns about an overall negative trend throughout innovation.
a four-year period (2018‒21), while the current
global environment only compounds the declin- Besides, in the aftermath of the European Col-
ing commitment to foreign bribery enforcement loquium on Ethics and Transparency, organised
in view of the war in Ukraine and climate-related in Paris on 9 June 2022 in the context of the
natural disasters. Thus, only two of the 47 coun- French Presidency of the Council of the Euro-
tries (United States and Switzerland) are now in pean Union, public ethics authorities from 11 EU
the category of “active enforcement”, compared member states (Austria, Belgium, Croatia, Czech
with four countries in 2020 and seven countries Republic, France, Italy, Lithuania, Malta, Spain,
in 2018. In 2022, the United Kingdom and Israel Romania and Slovenia) published a joint decla-
dropped from “active” to “moderate enforce- ration and created the European Public Ethics
ment”. Since 2020, nine countries have dropped Network. They intend to adopt a founding char-
an enforcement level whereas only two countries ter in the coming months and meet in autumn
moved up a level. China and India, which still 2022 to discuss the issue of mobility between
have no legislation criminalising foreign bribery, the public and private sectors.
remain in the “little to no enforcement” category.
The first steps of the European Public
Therefore, to the authors of the report, “the need Prosecutor's Office
for enforcement is stronger than ever to avoid a In March 2022, the European Public Prosecu-
race to the bottom in the use of bribery in the tor's Office (EPPO) released its inaugural annual
contest for foreign markets.” report following the first seven months of its
operational activity. The previous year witnessed
European co-operation initiatives the opening of 576 investigations, of which 298
The transnational nature of several corruption were new cases initiated by the EPPO and 278
issues underlines the need to strengthen inter- were cases initially reported by national authori-
national co-operation, as advocated by the 2021 ties. Four per cent of the investigations con-
Anti-Bribery Recommendation. Recent Europe- ducted concerned cases of active and passive
an initiatives were designed with this in mind. corruption of public officials.
In December 2021, the Italian National Anti- At this stage, the EPPO’s jurisdiction remains
Corruption Authority (ANAC) released a study limited to the protection of the financial inter-
entitled Using Innovative Tools and Technolo- ests of the EU, which explains why the EPPO is
gies to Prevent and Detect Corruption, featuring not in charge of a recent highly publicised case
contributions from members of the Network of concerning the alleged bribery of a European
Corruption Prevention Authorities (an interna- parliamentarian by an Arab state.
tional network of corruption prevention authori-
ties). According to ANAC President Giuseppe The report shows that the level of detection of
Busia, the study provides practical examples of fraud affecting the EU’s financial interests varies
best practice in the use of information and com- significantly between EU member states. In this
munication technologies for the prevention of respect, it is interesting to note that out of 576
corruption, thereby shedding light on how anti- cases opened in 2021, 369 (a significant por-
6 CHAMBERS.COM
INTRODUCTION
tion) were opened in the five EU member states Conclusion

ranked by Transparency International as the In the wake of these introductory remarks, which
worst performers in foreign bribery enforcement are inevitably made from a European perspec-
(Romania, Bulgaria, Czech Republic, Slovakia tive, the expert contributions in the following
and Italy). The EPPO could therefore be called chapters constitute an essential resource, as
upon to prioritise the investigation of countries they give precise insights about what is going
that fail in the prosecution of probity offences. on in each country in many different corners of
The EPPO could thus contribute to rectifying the world.
these shortcomings, especially if its scope is
extended in the future. We express our deep gratitude to all authors for
their valuable work.
In October 2022, the EPPO announced that
it had opened an investigation relating to the May practitioners find helpful information in this
procurement of COVID-19 vaccines in the EU, Guide that will make it easier to identify, under-
without providing any detail at this stage. The stand and manage the legal risks arising from
handling of this case should be followed closely anti-corruption rules around the world.
by civil society.
7 CHAMBERS.COM
INTRODUCTION
Bougartchev Moyne Associés was formed in cern white-collar crime, civil and commercial
January 2017, when Kiril Bougartchev and Em- law, or regulatory matters. With wide experi-
manuel Moyne joined forces to create a law firm ence of emergency, complex, cross-border and
that combined all disciplines of business litiga- multi-jurisdictional proceedings, Bougartchev
tion while specialising in criminal law. They are Moyne Associés’ lawyers assist their clients
supported by a team of approximately ten law- both in France and internationally, and benefit
yers. As litigators recognised throughout their from privileged relations with counterpart law
profession, the founders and their team assist firms on all continents. Primary practice areas
public and private enterprises such as banks, are white-collar crime, civil and commercial liti-
financial institutions and insurance companies gation, regulatory disputes, compliance and in-
– as well as their executives and other promi- vestigations – as well as crisis and reputational
nent figures – in all disputes, whether they con- injury management.
Kiril Bougartchev co-founded Emmanuel Moyne co-founded
Bougartchev Moyne Associés Bougartchev Moyne Associés
following a career that began in following a career that began in
1988 as an auditor at Arthur 1997 when he was admitted to
Andersen. After joining the Paris Bar. He then practised
Linklaters LLP in 2007, he for ten years in Gide's litigation
became co-head of the dispute resolution and white-collar crime department before
practice at the Paris office and led the joining the dispute resolution practice at
Linklaters LLP global white-collar crime group. Linklaters LLP in Paris in 2007 as a counsel.
Kiril continues to be involved in many notorious Emmanuel has acted in numerous white-collar
white-collar crime cases, both in France and crime cases and regulatory, civil and
internationally. He also acts in regulatory commercial disputes, as well as in industrial
disputes (including before the French Financial and environmental accident claims. He advises
Markets Authority, the French Anti-Corruption his clients on complex proceedings that often
Agency and the French Prudential Supervisory involve several foreign jurisdictions, as well as
Authority), as well as in complex civil and on compliance programmes, anti-corruption
commercial litigation. Kiril was a Secrétaire de due diligence and internal investigations.
la Conférence des Avocats of the Paris Bar. Emmanuel was a Secrétaire de la Conférence
des Avocats of the Paris Bar.
8 CHAMBERS.COM
INTRODUCTION
Bougartchev Moyne Associés

AARPI
4 place Saint Thomas d’Aquin
75007 Paris
France
Tel: +33 1 42 84 87 77
Fax: +33 1 42 84 87 79
Email: kbougartchev@bougartchev-moyne.com
Web: www.bougartchev-moyne.com
9 CHAMBERS.COM
AUSTRALIA
Law and Practice
Australia
Contributed by:
Tobin Meagher, David Benson, Sydney
Tessa Trend and William Stefanidis

Clayton Utz see p.31 Tasmania
Contents
1. Legal Framework for Offences p.11 6. Compliance and Disclosure p.18
1.1 International Conventions p.11 6.1 National Legislation and Duties to Prevent
1.2 National Legislation p.11 Corruption p.18
1.3 Guidelines for the Interpretation and 6.2 Regulation of Lobbying Activities p.19
Enforcement of National Legislation p.11 6.3 Disclosure of Violations of Anti-bribery and
1.4 Recent Key Amendments to National Anti-corruption Provisions p.19
Legislation p.12 6.4 Protection Afforded to Whistle-Blowers p.20
6.5 Incentives for Whistle-Blowers p.20
2. Classification and Constituent Elements p.12
6.6 Location of Relevant Provisions Regarding
2.1 Bribery p.12
Whistle-Blowing p.21
2.2 Influence-Peddling p.14
2.3 Financial Record-Keeping p.14 7. Enforcement p.21
2.4 Public Officials p.15 7.1 Enforcement of Anti-bribery and Anti-
corruption Laws p.21
2.5 Intermediaries p.15
7.2 Enforcement Body p.21
3. Scope p.15 7.3 Process of Application for Documentation p.22
3.1 Limitation Period p.15 7.4 Discretion for Mitigation p.23
3.2 Geographical Reach of Applicable Legislation p.15 7.5 Jurisdictional Reach of the Body/Bodies p.24
3.3 Corporate Liability p.16 7.6 Recent Landmark Investigations or Decisions
involving Bribery or Corruption p.24
4. Defences and Exceptions p.16
7.7 Level of Sanctions Imposed p.27
4.1 Defences p.16
4.2 Exceptions p.17 8. Review p.27
4.3 De Minimis Exceptions p.17 8.1 Assessment of the Applicable Enforced
4.4 Exempt Sectors/Industries p.17 Legislation p.27
4.5 Safe Harbour or Amnesty Programme p.17 8.2 Likely Changes to the Applicable Legislation
of the Enforcement Body p.29
5. Penalties p.17
5.1 Penalties on Conviction p.17
5.2 Guidelines Applicable to the Assessment of
Penalties p.18
10 CHAMBERS.COM
AUSTRALIA Law and Practice
Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
1. Legal Framework for Offences offence at common law is constituted by the

offering or receiving of an undue reward to or by
1.1 International Conventions any person in public office in order to influence
Australia ratified the Organisation for Economic that person’s behaviour in that office.
Co-operation and Development (OECD) Con-
vention on Combating Bribery of Foreign Public 1.3 Guidelines for the Interpretation and
Officials in International Business Transactions Enforcement of National Legislation
(the “OECD Convention”) in 1999. Australia is Unlike the United States and the United King-
also a signatory to the United Nations Conven- dom, Australian government agencies have only
tion against Corruption (UNCAC) of 2003. As a published limited guidance on the interpretation
state party to both treaties, Australia is required and enforcement of the various anti-bribery and
to criminalise bribery of domestic and foreign corruption laws. The Attorney-General’s Depart-
public officials in the course of international ment (AGD) has developed an online learning
business. module on foreign bribery, which provides guid-
ance on Australia’s anti-bribery policy, relevant
1.2 National Legislation laws, and their application. It has also published
Australia gives effect to its treaty obligations a Foreign Bribery Information and Awareness
primarily through the Criminal Code Act 1995 Pack, which provides key information on the
(Cth) (Criminal Code). This is the federal legis- foreign bribery offence.
lation prohibiting the bribery of Commonwealth
domestic and foreign public officials. Other rel- The Australian Trade and Investment Commis-
evant Commonwealth legislation includes the sion (“Austrade”) has published material online
Corporations Act 2001 (Cth) and the Proceeds to provide general guidance to businesses oper-
of Crime Act 2002 (Cth). ating overseas, including practical guidance
on implementing an anti-bribery and corrup-
All of Australia’s six states and two territories tion compliance programme, and proportion-
have also legislated against public sector and ate anti-bribery procedures. The Australian Tax
private sector bribery, typically in the relevant Office (ATO) has also published guidelines on
state or territory’s crimes legislation. While the understanding and dealing with the bribery of
laws differ between each state and territory, they Australian and foreign public officials.
generally make it an offence to corruptly give
or offer an inducement or reward to an agent The Bribery Prevention Network is a recently
for doing or not doing something regarding established public-private partnership offering a
the affairs of the agent’s principal. It is also an free online resource portal designed to support
offence to aid, abet, counsel, procure, solicit or Australian businesses in preventing, detecting
incite the commission of these offences. and addressing bribery and corruption risks both
locally and overseas.
In addition, bribery and misconduct in public
office remain criminal offences under the com- The Prosecution Policy of the Commonwealth
mon law of some states and territories, rather (the “Prosecution Policy”) provides guidance as
than being criminalised by statute (as occurs to how prosecution decisions are to be made by
in the other states and territories). The bribery the Office of the Director of Public Prosecutions
11 CHAMBERS.COM
(CDPP) in relation to Commonwealth offences, Significant reforms to Australia’s whistle-blower

including bribery offences. protection laws came into force in July 2019
pursuant to the Treasury Laws Amendment
1.4 Recent Key Amendments to National (Enhancing Whistleblower Protections) Act 2019
Legislation (Cth), see 6.4 Protection Afforded to Whistle-
As discussed later in this chapter, the Crimes Blowers.
Legislation Amendment (the Combatting Corpo-
rate Crime) Bill 2019 (Cth) (the “Corporate Crime Serious corruption is now also specifically tar-
Bill”), which was re-introduced to parliament by geted under Australia’s new thematic sanctions
the Australian government following the lapsing framework. In December 2021, amendments
of an earlier bill in July 2019, again lapsed follow- to the Autonomous Sanction Act 2011 (Cth)
ing a change of government in July 2022. It is not allowed the Commonwealth government to
yet clear whether the new government intends to impose economic, financial and trade restric-
reinstate it, though some aspects of the Corpo- tions on individuals who have engaged in situ-
rate Crime Bill were opposed by the new govern- ations of grave international concern, including
ment whilst they were in opposition. It is there- those responsible for, or complicit in, serious
fore expected that, if reintroduced, the bill will corruption.
likely be varied, at least to some extent. Prior to
this there were several noteworthy amendments
to Australia’s anti-bribery and corruption laws in 2. Classification and Constituent
2015 and 2016. In particular: Elements
• in November 2015, Schedule 2 of the Crimes 2.1 Bribery
Legislation Amendment (Powers, Offences Domestic Bribery
and Other Measures) Act 2015 (Cth) amended Section 141.1(1) of the Criminal Code provides
the offence of bribery of a foreign public offi- that it is an offence for a person to: dishonestly
cial in the Criminal Code to clarify that it is not provide, offer or cause to be provided or offered
necessary to prove: a benefit to another person with the intention
(a) an intention to bribe a particular foreign of influencing a Commonwealth public official in
public official; or the exercise of their duties.
(b) that any business or business advantage
was actually obtained or retained as a “Benefit” is broadly defined to include any advan-
result of the bribery; and tage, and is not limited to money or property,
• in February 2016, two important new offences and “Commonwealth public official” includes all
were introduced into the Criminal Code in employees of the Commonwealth and any Com-
relation to false dealings with accounting monwealth authority.
documents. It is expected that these offenc-
es, which are often easier to prove than tra- A similar but lesser offence applies to corrupting
ditional bribery and corruption offences, will benefits given to a Commonwealth public official
be increasingly relied upon by prosecutors to under Section 142.1(1) of the Criminal Code.
ensure that companies engaging in bribery
and corrupt practices are prosecuted.
12 CHAMBERS.COM
Corresponding offences apply to the receipt by Private Sector Bribery

Commonwealth public officials of bribes or cor- Commercial, or private sector, bribery is crimi-
rupting benefits: Sections 141.1(3) and 142.1(3). nalised by state and territory legislation, rather
than by the Commonwealth. Generally speaking,
It is also an offence under Section 135.4(7) of those laws prohibit the corrupt giving or offer-
the Criminal Code to conspire with another per- ing of inducements or secret commissions to, or
son with the intention of dishonestly influencing receiving them from, employees or agents of pri-
a Commonwealth public official in the exercise vate or public companies and individuals. Con-
of their duties as a public official. duct is considered “corrupt” only if it is engaged
in with the intention of influencing the recipient
Furthermore, various state and territory provi- to show favour, and the fact that the commis-
sions prohibit bribery of state and territory public sion is secret raises the presumption that it was
officials, which provisions are often the same as given corruptly.
those prohibiting private sector bribery.
An example of the state and territory provisions
Foreign Bribery are those contained in the Crimes Act 1900
The foreign bribery offence is contained in Sec- (NSW) (NSW Crimes Act). Among other things:
tion 70.2(1) of the Criminal Code. That section
provides that it is an offence to: provide, offer • Section 249B(1) prohibits an agent from
or cause to be provided or offered to another corruptly receiving or soliciting (or corruptly
person a benefit which is not legitimately due to agreeing to receive or solicit) any benefit from
the other person with the intention of influencing another person:
a foreign public official in the exercise of their (a) as an inducement, a reward, or on
duties in order to obtain or retain business or a account of doing or not doing something,
business advantage. or showing or not showing favour to any
person in relation to the affairs or busi-
The offence captures bribes made to foreign ness of the agent’s principal; or
public officials either directly or indirectly via (b) if it would tend to influence the agent to
an agent, relative or business partner. The key show or not show favour to any person
mental element is that the defendant must have in relation to the affairs or business of the
intended to influence the foreign public official. agent’s principal.
• Corresponding offences of giving or offering
“Foreign public official” is broadly defined and such benefits to an agent are imposed by
includes, but is not limited to, an employee, con- Section 249B(2).
tractor or official of a foreign government depart- • Section 249D prohibits a person from cor-
ment or agency, a foreign government-controlled ruptly giving (or receiving) a secret benefit to
company or public international organisation. (or from) another person for providing advice
“Benefit” is also broadly defined to include any to a third party, with the intention of influenc-
advantage. ing the third party to either:
(a) enter into a contract with the person giv-
ing the benefit; or
13 CHAMBERS.COM
(b) appoint the person giving the benefit to on the receipt of gifts and hospitality. In particu-
any office. lar, each Commonwealth, state and territory gov-
ernment has its own public service with its own
The definition of “agent” is wide and includes code of conduct. These codes of conduct are
employees, while “benefit” includes money and often supplemented by agency-specific codes
any contingent benefit. of conduct, which regulate the conduct of Aus-
tralian civil servants or officials working for them.
Failure to Prevent Bribery
Failure to prevent bribery is not currently an While it will depend on the applicable guidelines,
offence in Australia. However, it was proposed generally speaking, gifts of more than token val-
in the Corporate Crime Bill, modelled on Section ue should be avoided.
7 of the UK Bribery Act 2010. If a similar bill con-
taining this offence is introduced and passed, a 2.2 Influence-Peddling
body corporate would be liable where an asso- There are no specific offences in Australia direct-
ciate commits foreign bribery for the profit or ed at influence peddling. However, given that the
gain of the body corporate. The offence would substantive bribery offences are broad in scope,
not apply if the body corporate had in place depending on the facts and circumstances of
adequate procedures designed to prevent the a particular case, the exchange of influence in
commission of the foreign bribery offence by its respect of decision-making for an undue advan-
associates. tage may constitute an offence.
It is expected that this proposed new offence 2.3 Financial Record-Keeping

would assist in facilitating responsibility for The false accounting offences mentioned in 1.4
offending conduct being attributed to a compa- Recent Key Amendments to National Legisla-
ny based in Australia, in circumstances where tion are found in Part 10.9 of the Criminal Code.
a subsidiary company commits foreign bribery The provisions criminalise intentional or reckless
(whether within or outside of Australia), provided concealment of bribery by dealing with account-
it does so for the profit or gain of the parent coming documents.
pany.
Section 286 of the Corporations Act 2001 (Cth)
Gifts and Hospitality (Corporations Act) also puts an obligation on
Australian legislation does not expressly articu- companies to keep written financial records for
late the circumstances under which providing seven years that correctly record and explain its
gifts and hospitality may amount to bribery. As transactions and financial position and perfor-
the law currently stands, the giving of such ben- mance. Failure to keep such financial records
efits will only be unlawful if done with the inten- is a strict liability offence. In addition, it is an
tion of improperly influencing a public official. offence under Section 1307 for an employee or
former employee of a company to falsify any
In Australia, there is close scrutiny of the pro- books relating to the affairs of the company.
vision of gifts, entertainment and hospitality
involving the public sector. As such, Australian The Crimes Acts of various states and territories
public officials are usually subject to guidelines also have similar false accounting offences, such
14 CHAMBERS.COM
as Section 83(1)(a) of the Crimes Act 1958 (Vic) is dealt with under provisions relating to fraud,
which makes it an offence to dishonestly falsify theft or other property offences.
a document made for an accounting purpose.
2.5 Intermediaries
2.4 Public Officials There are no specific provisions concerning the
Domestic public officials also commit an offence commission of an offence through an interme-
by engaging in corrupt practices. For example, diary. However, the offences under the Criminal
as referred to in 2.1 Bribery, Section 141.1(3) of Code are structured broadly so as to capture
the Criminal Code provides that it is an offence such offences. See 3.3 Corporate Liability.
for a Commonwealth public official to: dishon-
estly ask, receive, obtain, or agree to receive or
obtain a benefit for themselves or another per- 3. Scope
son with the intention that the exercise of their
official duties will be influenced, or of inducing, 3.1 Limitation Period
fostering or sustaining such a belief. At general law, a prosecution for a criminal
offence can be commenced at any time, unless
A similar but lesser offence applies if a Com- a statute provides otherwise. However, criminal
monwealth public official receives a corrupting proceedings may be stayed to prevent injustice
benefit (Section 142.1(3)). to the defendant caused by unreasonable delay.
A Commonwealth public official will also commit There is no statute of limitations for prosecu-
an offence against Section 142.2 of the Criminal tions of the above-mentioned Commonwealth
Code for the abuse of public office. This pro- offences. That is because under the Crimes Act
vision will be breached if the official exercises 1914 (Cth) (Crimes Act), there is no limitations
influence, engages in conduct, or uses informa- period for the prosecution of offences by individ-
tion obtained in their capacity as an official, with uals against a law of the Commonwealth where
the intention of dishonestly obtaining a benefit the maximum penalty exceeds six months’
for themselves or another person, or causing imprisonment or for the prosecution of offenc-
detriment to another person. es by companies where the maximum penalty
exceeds AUD33,300.
The states and territories also legislate against
public officers seeking or accepting bribes or 3.2 Geographical Reach of Applicable
other benefits to which they are not entitled. Legislation
The Criminal Code offences referred to in 2.1
New South Wales is the only Australian jurisdic- Bribery, 2.3 Financial Record-Keeping and 2.4
tion that retains a specific offence of embez- Public Officials have broad extraterritorial reach.
zlement (Part 4, Division 6, NSW Crimes Act).
This offence criminalises conduct in which an In relation to the foreign bribery offence, either
employee intentionally misappropriates proper- some part of the conduct constituting the alleged
ty entrusted to them by their employer. In other offence must have occurred in Australia or, if the
Australian jurisdictions, embezzlement conduct conduct occurred wholly outside Australia, the
15 CHAMBERS.COM
person must be an Australian citizen or resident, • the physical element is attributed if that ele-
or a body corporate incorporated in Australia. ment was committed by an employee, agent
or officer of the company acting within the
In relation to the offence of bribing a Common- actual or apparent scope of that person’s
wealth public official, it does not matter if the employment or within their actual or apparent
conduct constituting the alleged offence, or the authority; and
result of that conduct, occurred entirely outside • the key fault element (intention) is attributed
Australia. if the company expressly, tacitly or impliedly
authorised or permitted the commission of
In relation to the state and territory-based the offence. The means by which that may
offences, there must be some nexus between be established include proving that a “high
the state or territory and the offence. In NSW, managerial” agent intentionally engaged in
that nexus will be held to exist where the offence the relevant conduct or proving that a cor-
is committed: porate culture existed that directed, encour-
aged, tolerated, or led to non-compliance
• wholly or partly in the state; or with the relevant provision.
• wholly outside the state, but the offence has
an effect in the state. In other Australian jurisdictions, generally speak-
ing, a corporation may be found guilty of a crimi-
Liability for a breach of directors’ duties under nal offence either on the grounds of vicarious
the Corporations Act will arise if the relevant liability or on the basis that the person who
person is a director or officer of an Australian- committed the acts and had the requisite men-
incorporated company. If the relevant person is tal state was the directing mind and will of the
a director or officer of a foreign company, the company.
Corporations Act will only have extraterritorial
reach over that individual in limited circumstanc- In the M&A context, a successor entity will not
es, including where the conduct occurred in con- be held liable for offences by the target entity
nection with the foreign company carrying on that occurred prior to the merger or acquisition.
business in Australia (Section 186). However, if the transaction was effected by a
share sale, the target entity will remain liable
3.3 Corporate Liability even after the acquisition.
Under Australian law, a company, as a separate
legal entity, can be convicted of bribery offenc-
es. Companies and individuals can also be held 4. Defences and Exceptions
liable for the same offence.
4.1 Defences
The Criminal Code has specific provisions which Two specific defences are available for the
address corporate criminal responsibility. Under offence of foreign bribery under Section 70.2(1)
these provisions, for a company to be criminally of the Criminal Code. Both are very narrow.
responsible for an offence, the physical and
mental (or “fault”) elements must be attributed The first defence (Section 70.3) is enlivened
to the company as follows: where the provision of the benefit is permitted
16 CHAMBERS.COM
or required by a written law of the place where 4.4 Exempt Sectors/Industries

the conduct occurred. No sectors or industries are exempt from the
offences referred to in 2.1 Bribery, 2.3 Financial
The second defence (Section 70.4) is in respect Record-Keeping and 2.4 Public Officials.
of facilitation payments. If the value of the ben-
efit was of a minor nature, and made to expedite 4.5 Safe Harbour or Amnesty Programme
or secure the performance of a “routine govern- There is no formal safe harbour or amnesty pro-
ment action” of a minor nature, and a record of gramme in Australia based on self-reporting or
the details of the conduct was created as soon the existence of adequate compliance proce-
as practicable, a defendant will have a good dures and remediation efforts. However, see the
defence against liability. Routine government discussion regarding the CDPP and Australian
action excludes a decision about the awarding Federal Police’s (AFP) joint guidance on self-
of new business, continuing existing business, reporting in 7.4 Discretion for Mitigation.
or the terms of new or existing business. Rather,
it is an action commonly performed by the for-
eign public official, such as granting permits or 5. Penalties
licences, processing government papers or pro-
viding access to utilities. 5.1 Penalties on Conviction
The maximum penalties on conviction for foreign
Australia has been considering removing the or domestic bribery offences are significant:
facilitation payment defence for some time.
However, the Corporate Crime Bill proposed • for an individual:
that the defence be retained. Nonetheless, Aus- (a) ten years’ imprisonment; or
tralian authorities recommend avoiding such (b) a fine of AUD2,22 million, or both; or
payments, given that they are often difficult to • for a company, a fine being the greatest of:
distinguish from bribes. (a) AUD22,2 million;
(b) three times the value of any benefit that
4.2 Exceptions can be reasonably attributed to the bribe;
There are no exceptions to the above-mentioned or
defences, which are narrowly framed and only (c) where the value of the benefit cannot
apply in specific situations. be determined, 10% of the company’s
annual turnover for the 12 months up to
4.3 De Minimis Exceptions the end of the month in which the con-
The Commonwealth legislation does not product constituting the offence occurred.
vide any de minimis exceptions. However, such
exceptions are found in some of the state and For the false accounting provisions, the maxi-
territory legislation. For example, Section 249I of mum penalty for intentional conduct is the same
the NSW Crimes Act enables the court to exer- as above, while reckless conduct attracts a max-
cise its discretion to dismiss a case if the offence imum penalty of half that of those offences.
is of a trivial or merely technical nature.
In addition to criminal penalties, any benefits
obtained from foreign bribery may be forfeited to
17 CHAMBERS.COM
the Australian government under the Proceeds the company may potentially be held liable if,
of Crime Act 2002 (Cth) (POCA). among other things:
The maximum penalties that may be imposed for • it had a corporate culture that directed,
private sector bribery vary between the states encouraged, tolerated or led to non-compli-
and territories. By way of example, in NSW, the ance with the relevant provision; or
maximum period of imprisonment for a bribery • the employee, officer or agent was a “high
offence under Section 249B of the NSW Crimes managerial agent” and the company failed
Act is seven years. to exercise due diligence to prevent their
conduct.
5.2 Guidelines Applicable to the
Assessment of Penalties Corporate Culture
Australia has complex legislated sentencing “Corporate culture” is yet to be judicially tested
regimes which require each judge, through the in this context, but is defined to mean “an atti-
exercise of judicial discretion, to impose a sen- tude, policy, rule, course of conduct or practice
tence of severity appropriate to all the circum- existing within the body corporate generally or
stances of the offence. This requires the sen- in the part of the body corporate in which the
tencing court to take into consideration both relevant activities take place”. A key aspect of
aggravating and mitigating factors relevant to corporate culture is looking beyond what the
the specific facts. The same sentencing prin- company says in its policy literature, to what it
ciples which apply to individuals will apply to actually does in terms of its shared norms, val-
a corporation. In particular, general deterrence ues and how it manages risk. The diligent imple-
is an important consideration for the sentenc- mentation of an appropriate compliance regime
ing court. However, Australia does not have the is therefore a very important factor to take into
same prescriptive sentencing guidelines that account when assessing corporate culture.
exist in other jurisdictions (eg, the United King-
dom). There are no guidelines specific to bribery In addition, a director’s duty to exercise reasona-
and corruption offences. ble care, skill and diligence would extend to tak-
ing reasonable care to ensure that the company
has an appropriate risk management framework
6. Compliance and Disclosure in place, including to manage bribery risk.
6.1 National Legislation and Duties to Corporate Crime Bill

Prevent Corruption The previously proposed offence of failing to
Australian law does not currently establish any prevent foreign bribery, which incorporated a
specific duties to prevent corruption. defence of “adequate procedures”, would fur-
ther encourage action to prevent corruption.
However, the way the corporate criminal Under the Corporate Crime Bill (now lapsed), the
responsibility provisions are structured encour- Minister for Justice would have been required to
ages companies to have sound compliance publish guidance on the steps companies could
programmes. This is because, if an employee, take to help prevent their employees, agents and
officer or agent engages in the relevant conduct, contractors from engaging in foreign bribery.
18 CHAMBERS.COM
Adequate procedures guidance For example, the AGD administers the Com-
In November 2019, the Australian government monwealth Code of Conduct, which was recent-
developed a principles-based draft guidance ly updated in 2022 and includes requirements
on adequate procedures. Public submissions to ensure contact between lobbyists and Com-
on this draft were received in February 2020. It monwealth government representatives remain
drew upon existing guidance published by vari- consistent with the public’s expectations in
ous entities and government bodies, including respect of integrity, transparency and honesty.
the Australian Trade Commission, US Depart-
ment of Justice, and the OECD. The draft guid- Under the Commonwealth Code of Conduct,
ance clarified that: subject to very limited exceptions, anyone who
acts on behalf of third-party clients (regardless
• all companies (regardless of size) require of sector) for the purpose of lobbying a Com-
effective and proportionate procedures to monwealth government representative is con-
prevent bribery, tailored to a corporation’s sidered a lobbyist and is therefore required to
circumstances; and register as such. Government representatives
• indicators of an effective compliance pro- are prohibited from engaging with lobbyists that
gramme include a robust culture of integrity, are not registered on the Register. The Common-
a clear pro-compliance tone from the top, wealth’s Register is publicly searchable on the
a strong anti-bribery compliance function, AGD’s website.
effective risk assessment and due diligence
procedures, and careful and proper use of 6.3 Disclosure of Violations of Anti-
contractors and other parties. bribery and Anti-corruption Provisions
As a general rule, there is no requirement for
The draft guidance, which was broadly con- individuals and/or companies to disclose viola-
sistent with the UK guidance, suggested that tions of Australia’s anti-bribery and corruption
companies adopt the following fundamental laws.
elements in their programmes:
However, there are certain exceptions. For
• risk assessment; example, in NSW, it is an offence under Sec-
• management dedication; tion 316 of the NSW Crimes Act for a person,
• due diligence; including a company, who knows or believes
• communication and training; that another person has committed a serious
• confidential reporting and investigation; and indictable offence, to fail without reasonable
• monitoring and review. excuse to report that matter to the NSW Police.
6.2 Regulation of Lobbying Activities Additional requirements also exist with respect
Lobbying activities are regulated at the federal to public disclosures of political donations in the
and state or territory level by the applicable Lob- Commonwealth, states and territories. Failure
bying Codes of Conduct (“Code of Conduct”) to report political donations may evidence cor-
and Lobbyist Registers (“Register”). rupt or dishonest intentions for the purposes of
domestic bribery offences.
19 CHAMBERS.COM
6.4 Protection Afforded to Whistle- ised whistle-blowers to claim compensation and

Blowers other remedies.
To strengthen the protection afforded to whistle-
blowers in Australia, new private sector whistle- Whistle-blowers are also protected against cer-
blower laws came into effect in July 2019. tain legal actions related to making a disclosure.
This includes criminal prosecution (and the dis-
Protection under the Corporations Act closure cannot be used against the whistle-
The new regime, contained in Part 9.4AAA of blower in a prosecution, unless that disclosure
the Corporations Act, has significantly expanded is false), civil litigation (eg, breach of employment
and strengthened private sector whistle-blower contract) or administrative action (eg, discipli-
protections, increased applicable penalties and nary action). Immunity is not given for any mis-
introduced a requirement for public compa- conduct that the whistle-blower was involved in
nies and large proprietary companies to have a that is revealed in the disclosure.
whistle-blower policy which addresses certain
matters. Protection under the Public Interest
Disclosure Act
Importantly, protected disclosures are no longer Public officials are protected under the Public
limited to potential contraventions of the cor- Interest Disclosure Act 2013 (Cth) (PID Act). The
porations legislation, but now extend to dis- PID Act seeks to encourage public officials to
closures where the whistle-blower has reason- report suspected wrongdoing in the Australian
able grounds to suspect that the information public sector, while protecting those who make
concerns misconduct, or an improper state of public interest disclosures from any reprisals.
affairs or circumstances, in relation to the rel- There is equivalent legislation covering public
evant company or a related body corporate. servants in each state and territory.
This specifically includes conduct by the entity,
or one of its employees or officers, that consti- Protection under the Fair Work (Registered
tutes an offence against a law of the Common- Organisations) Amendment Act
wealth punishable by imprisonment for a period There are also specific protections against
of 12 months or more, which would include the reprisals for union whistle-blowers. These were
domestic and foreign bribery offences in the introduced by the Fair Work (Registered Organi-
Criminal Code. sations) Amendment Act 2016 (Cth), which con-
tained a range of measures intended to fight
Where certain criteria are met, a whistle-blower union corruption.
will receive protections in relation to the confi-
dentiality of their identity and in relation to vic- 6.5 Incentives for Whistle-Blowers
timisation. The penalties for breach of these pro- There are no financial rewards to incentivise
tections have been significantly increased. The whistle-blowing, as occurs in the USA. A reward
maximum civil penalty for companies, for exam- system was recommended by the Parliamentary
ple, is now the greater of AUD11.1 million, three Joint Committee on Corporations and Financial
times the benefit derived from the contravention, Services to motivate whistle-blowers to come
or 10% of annual turnover (up to a maximum of forward with high-quality information, however,
AUD555 million). It is also now easier for victim-
20 CHAMBERS.COM
that recommendation was not ultimately adopt- While allegations of corruption will generally be
ed. referred to the AFP, other agencies that may
become involved in investigation processes
6.6 Location of Relevant Provisions include:
Regarding Whistle-Blowing
The relevant provisions governing protections • the Australian Securities and Investments
afforded to whistle-blowers are located in vari- Commission (ASIC);
ous pieces of legislation. The most important of • the Australian Commission for Law Enforce-
these are: ment Integrity;
• the Australian Criminal Intelligence Commis-
• Part 9.4AAA of the Corporations Act; sion;
• Part IVD of the Taxation Administration Act • the Inspector-General of Intelligence and
1953 (Cth); Security; and
• Part 2 of the PID Act; and • the Office of the Commonwealth Ombuds-
• Fair Work (Registered Organisations) Amend- man.
ment Act 2016 (Cth).
The CDPP is largely responsible for prosecuting
offenders under the anti-bribery provisions of the
7. Enforcement Criminal Code.
7.1 Enforcement of Anti-bribery and Anti- In 2013, the AFP established the Fraud and
corruption Laws Anti-Corruption (FAC) business area, which
Despite a slowly growing number of success- enhanced the AFP’s response to, among other
ful prosecutions, Australia is still in the relatively things, serious and complex fraud against the
early stages of enforcing anti-bribery laws in Commonwealth, corruption involving Austral-
relation to foreign public officials. Enforcement ian government employees, and foreign bribery.
of domestic bribery offences is more established The FAC business area brought together multi-
and has been steady. ple Commonwealth agencies, including the AFP,
ASIC and ATO. In late 2019, the AFP transitioned
7.2 Enforcement Body its foreign bribery investigations out of the FAC
Australia does not have one single bribery and centre to a new multi-agency taskforce spe-
corruption enforcement agency. Instead, the cifically focused on foreign bribery and related
country has adopted a multi-agency approach transnational corruption issues.
to combating corruption. At the Commonwealth
level, Australia’s main criminal law enforcement In recent years, ASIC has taken a far more active
agencies in bribery cases are the AFP and the interest in potential Corporations Act contraven-
CDPP. State-based investigations are generally tions by directors and officers involved in foreign
conducted by the fraud squad of the particular bribery investigations.
state police department, with the state directors
of public prosecutions conducting prosecutions. The ATO, as the Commonwealth’s principal rev-
enue collection agency, also refers information
on suspected or actual bribe transactions to
21 CHAMBERS.COM
the AFP for potential investigation and/or pros- 7.3 Process of Application for
ecution, and has established guidelines which Documentation
require tax auditors to report any suspected for- Powers of Regulatory and Law Enforcement
eign bribery. Agencies
Regulatory and law enforcement agencies have
If an investigating body (such as ASIC or the significant information-gathering powers to
AFP) completes an investigation into a Common- assist them with their investigations. ASIC, for
wealth offence and concludes that there may be example, may issue notices compelling a person
grounds to charge someone with a crime, it will to produce documents, provide information and/
refer the case to the relevant Director of Public or attend a compulsory hearing or examination
Prosecutions, who will make an independent to answer questions.
assessment on whether to prosecute the case.
ASIC and the AFP, and certain other law enforce-
Independent Commissions ment agencies (such as ICAC), also have the
In addition, there are a number of independent power to access premises to conduct search-
commissions at both the federal and state level es and seize materials, usually after obtaining
which investigate possible corruption of public a search warrant. For some serious offences,
officials (including politicians) and the police. law enforcement bodies will also have access
At a federal level, the Australian Commission to more intrusive covert powers, including tel-
for Law Enforcement Integrity is an independ- ephone intercepts.
ent body whose primary role is to investigate
law enforcement-related corruption issues, giv- ASIC’s powers may only be used for the per-
ing priority to serious and systemic corruption. formance of its functions or in relation to an
Each state also has independent commissions alleged or suspected contravention of the law
which investigate possible corruption of both or for the purpose of a formal investigation. Fail-
public officials and police at a state level (eg, the ure to comply with a written notice, or to attend
Independent Commission Against Corruption in an examination, without reasonable cause, is
New South Wales (ICAC)). While these bodies an offence for which penalties may be imposed.
cannot charge individuals or corporations with In practice, demands for documents are often
offences, they have wide-ranging investigative broadly defined, and it is common practice for
powers conferred by statute. Reports following recipients of such notices to engage with ASIC
an investigation can be given to the police for to negotiate the scope of those demands before
further investigation, to parliament, or released responding.
publicly. There is a proposal to create a similar
independent commission at the federal level, Unlike ASIC, the AFP does not have the power
see 8.1 Assessment of the Applicable Enforced to compel individuals to answer questions under
Legislation. oath.
However, search warrant powers are available to

the AFP, ASIC and many other authorities, upon
application to a magistrate, provided the rele-
vant authority is able to establish that there are
22 CHAMBERS.COM
“reasonable grounds for suspecting” that there Nonetheless, the accused can expect to receive
is, or shortly will be, relevant evidentiary material a significantly moderated sentence because
at the premises. pleading guilty, providing assistance to law
enforcement agencies and showing contrition or
Collaboration with Overseas Law remorse (including by making reparation for any
Enforcement Agencies injury, loss or damage caused by the offender’s
Australian enforcement agencies are increasing- conduct) are all mitigating factors which a court
ly collaborating, and conducting parallel inves- must take into account in the sentencing pro-
tigations, with other overseas law enforcement cess.
agencies. If relevant evidence is located in a for-
eign country, Australian enforcement agencies Various legal mechanisms can be found in pub-
may, through the Attorney-General, seek the lished prosecution policies (such as the Pros-
assistance of the relevant overseas enforcement ecution Policy), guidelines and conventions, as
agency to serve various documents, obtain evi- well as statutes, which can apply to persons who
dence (including the production of documents voluntarily disclose their criminal conduct. This
and taking evidence by video link), and execute includes the granting of immunity from pros-
search and seizures. Australia’s mutual assis- ecution in extraordinary circumstances, or the
tance system is governed by the Mutual Assis- investigating authority accepting an induced wit-
tance in Criminal Matters Act 1987 (Cth) (MA ness statement which cannot be used against
Act). the deponent.
Subpoenas Self-Reporting of Foreign Bribery

In addition to the above, if criminal proceedings While the AFP encourages self-reporting of
are instituted, courts still have their ordinary foreign bribery, there are still no real incen-
powers to issue subpoenas or summonses at tives to do so. In 2017, the CDPP and the AFP
the request of the prosecutor, compelling a per- jointly developed a Best Practice Guideline on
son to give evidence prior to or at trial. Self-Reporting of Foreign Bribery and Related
Offending by Corporations, in an effort to incen-
7.4 Discretion for Mitigation tivise companies to self-report. This guideline
Unlike in the UK and the USA, Australian identifies public interest factors the CDPP will
enforcement agencies have fairly limited dis- take into account when deciding whether or not
cretion for mitigation in enforcing their powers. to prosecute a self-reporting corporation, or how
This is largely due to the fact that there is not, the self-report will be taken into account in any
as yet, any equivalent deferred prosecution or future prosecution. However, this policy does not
non-prosecution agreement regime in Australia. offer much certainty or comfort for those who
may be considering self-reporting.
Relevant Mitigating Factors
As a general rule, an offender who discloses that Prosecution Policies and Guidelines
they have engaged in criminal conduct will still The formal decision as to whether or not relevant
be prosecuted subject to there being a prima charges should be laid, either against individu-
facie case, reasonable prospects of conviction als or a company, will be made by the CDPP (or
and that it is in the public interest to prosecute. its state/territory counterparts, where relevant)
23 CHAMBERS.COM
in accordance with its Prosecution Policy, often 3.2 Geographical Reach of Applicable Legisla-
following a referral by an Australian enforcement tion.
agency.
In circumstances where an offence such as for-
Prosecution policies and guidelines provide a eign bribery typically involves conduct occurring
foundation for the prosecution and the defend- overseas, evidence of which must be properly
ant to negotiate what charges should be pro- obtained to support a prosecution, Australian
ceeded with. However, agreements on sentence enforcement agencies may seek mutual assis-
are not enforceable or binding upon a sentenc- tance from overseas authorities under the MA
ing court, which ultimately has the discretion to Act, see 7.3 Process of Application for Docu-
determine the appropriate sentence. This places mentation.
a significant constraint on a defendant’s ability
to plea bargain. In Barbaro v the Queen (2014) 7.6 Recent Landmark Investigations or
253 CLR 58, the High Court confirmed that the Decisions involving Bribery or Corruption
prosecution is not required, and should not be According to the OECD’s 2021 Addendum to
permitted, to proffer even a sentencing range to its Phase 4 Two-Year Follow-Up Report on Aus-
a sentencing judge. Charge bargaining, on the tralia (see 8.1 Assessment of the Applicable
other hand, is common. Enforced Legislation), the AFP had five foreign
bribery prosecutions underway as at Novem-
Pre-trial Diversion Process ber 2021, an increase from the two recorded in
There are currently no legal mechanisms for a November 2019. The majority of the prosecu-
pre-trial diversion process or a deferred pros- tions commenced in Australia to date under
ecution in Australia. The Corporate Crime Bill foreign anti-bribery laws have been prosecu-
proposed to make deferred prosecution agree- tions of individuals, rather than companies. It is
ments (DPA) available for certain serious cor- expected that this trend will continue, but that
porate crimes, including foreign bribery, which companies will also continue to be prosecuted in
would no doubt incentivise more companies to appropriate cases. Frequently, associated false
self-report. For further details about these pro- accounting charges have been brought in paral-
posed amendments, see 8.2 Likely Changes to lel to the bribery prosecutions, against individu-
the Applicable Legislation of the Enforcement als who sought to disguise or conceal the true
Body. nature of the bribes.
7.5 Jurisdictional Reach of the Body/ While it is difficult to obtain reliable data on the
Bodies ongoing bribery and corruption investigations in
The AFP’s decision to investigate potential Australia, the most notable Australian enforce-
offences under the Criminal Code or ASIC’s ment actions in the anti-bribery and corruption
decision to investigate potential breaches of space include the following:
directors’ duties under the Corporations Act will
be guided by, among other things, whether or • In 2011, in what were the first foreign bribery
not they can establish a sufficient jurisdictional prosecutions in Australia, the AFP charged
nexus based on the requirements referred to in Securency International Pty Limited (Securen-
cy), Note Printing Australia Limited (NPA)
24 CHAMBERS.COM
and several of the companies’ former senior sentenced to four years’ imprisonment (R v
managers with the offences of bribery of Jousif; R v I Elomar; R v M Elomar (2017) 325
foreign public officials, conspiracy to commit FLR 108; and Elomar v R [2018] NSWCCA
foreign bribery and false accounting offences 224).
connected with that conduct. The cases • In a series of cases running between 2012
arose from allegations by a company insider and 2017, ASIC successfully prosecuted a
that Securency had paid nearly AUD50 million number of former officers and directors of
to international sales agents to bribe central AWB Ltd, Australia’s largest wheat exporter
banking officials in Malaysia, Indonesia and (at the time), for their involvement in a scheme
Vietnam in order to secure banknote supply between 1999 and 2003 by which AWB Ltd
contracts. A series of hearings was run from rorted the UN’s Oil-for-Food Programme
2011 to 2018, following which: in Iraq. Civil penalties and disqualification
(a) each of the companies pleaded guilty to orders were imposed on, amongst others, the
three charges of conspiracy to commit board’s chair and the managing director on
foreign bribery, were fined AUD480,000 the basis that the former had failed to make
and AUD450,000 respectively, and were adequate enquiries into the lawfulness of
separately the subject of pecuniary pen- the scheme, despite the existence of certain
alty orders under POCA in the amount of red flags, and the latter had failed to inform
AUD22 million; the board of certain matters, in breach of
(b) convictions were obtained against their duties to the company (ASIC v Flugge &
various former employees of Securency, Geary (2016) 342 ALR 1; ASIC v Flugge (No
including the CEO, CFO, a senior busi- 2) (2017) 342 ALR 478; and ASIC v Lindberg
ness development manager, the Indone- (2012) 91 ACSR 640).
sian sales agent and a former banknote • In May 2018, engineering consultancy Sinclair
specialist; and Knight Merz, now known as Jacobs Group
(c) charges against four other individuals Australia, its former chief executive and
were permanently stayed on the grounds other individuals, were charged with con-
that their continued prosecution would spiring to bribe foreign officials in the Philip-
bring the administration of justice into pines (between 2000 and 2005) and Vietnam
disrepute, after the investigation into their (between 2006 and 2012) to secure various
conduct was tainted by unlawful com- infrastructure projects. The charges followed
pulsory examinations, to their prejudice the company’s self-report to the AFP in 2012.
(Strickland v Commonwealth Director of The cases concluded with a guilty plea by
Public Prosecutions (2018) 266 CLR 325). the company, the acquittal of individuals
• In 2015, the AFP charged two directors of an charged with the Philippines conspiracy, and
Australian construction company, Lifese, and the discontinuation of proceedings against
a third individual, with conspiracy to bribe a the second group of individuals in relation to
foreign public official in connection with build- the Vietnam conspiracy shortly thereafter. The
ing contracts in Iraq. The three men pleaded company was sentenced in 2021 to pay fines
guilty, with the directors each ultimately sen- totalling AUD1,471,500, incorporating a 25%
tenced to just over three years’ imprisonment discount for the guilty plea and a further 40%
and fined AUD250,000, with the third man discount for its extraordinary co-operation
25 CHAMBERS.COM
and assistance provided to the authorities. mer chief-of-staff, were charged with miscon-
The CDPP has sought leave to appeal to duct in public office, arising from an earlier
the High Court in relation to the company’s NSW ICAC inquiry. That inquiry found that
sentence. Mr Tripodi and Mr Kelly used their ministerial
• In March 2019, charges were laid in NSW positions to push for infrastructure company
against the former chief of staff at National Australian Water Holdings to be awarded a
Australia Bank (NAB), Ms Rosemary Rogers, lucrative government contract, to the poten-
for dishonestly obtaining a financial advan- tial financial benefit of the Obeid family.
tage by deception and corruptly receiving a • Following a lengthy AFP investigation into the
benefit as an agent under private sector anti- conduct of subsidiaries of Leighton Holdings
bribery laws. The charges related to a scheme Ltd (now known as CIMIC) triggered by the
by which Ms Rogers approved inflated company’s self-report in 2011, Mr Russell
invoices issued by an events company to the Waugh, the former Leighton Offshore Pty Ltd
bank, in return for personal travel, cash and managing director, was charged in late 2020
other benefits totalling AUD5,4 million. Ms in relation to alleged foreign bribes paid via
Rogers pleaded guilty and was sentenced in third party contractors to secure approvals for
January 2021 to eight years’ imprisonment. two oil pipeline contracts with Iraq Crude Oil
The head of the events company, Ms Helen Export in 2010 and 2011, and in respect of a
Rosamond, has also been charged and her separate infrastructure contract in Tanzania.
trial commenced in August 2022. Charges have also been laid against a second
• In July 2021, former NSW Minister for Min- former Leighton executive, Mr David Savage,
eral Resources, Mr Ian Macdonald, Mr Eddie for knowingly providing misleading informa-
Obeid (another former NSW Minister) and his tion.
son, Mr Moses Obeid, were found guilty of • In August 2020, Mr Mozammil Bhojani, the
conspiring to commit misconduct in public director of Radiance International, pleaded
office. The convictions concerned a conspira- guilty and was convicted for bribing two
cy that Mr Macdonald would wilfully miscon- Nauru government officials in 2015 and 2017
duct himself as Minister by acting in breach with more than AUD100,000 in kickbacks.
of his ministerial duties of confidentiality and The bribes were in exchange for favour-
impartiality in connection with the grant of a able phosphate shipments. Mr Bhojani was
coal mining exploration licence in the Bylong sentenced to an intensive correction order for
Valley, where the Obeid family owned a rural two-and-a-half years of intensive correction in
property, for the improper purpose of benefit- the community and 400 hours of community
ting the Obeids and others associated with work.
them. Mr Macdonald was sentenced to nine- • In July 2020, Melbourne man Mr Dennis Teen
and-a-half years’ imprisonment, Mr Eddie was charged with bribing Malaysian govern-
Obeid to seven years, and Mr Moses Obeid ment officials by paying them AUD4,75 million
to five years. All three accused have appealed in relation to the sale of a student accom-
against their convictions and sentences. modation block to a Malaysian government-
• In 2022, Mr Eddie Obeid, together with two owned entity in 2013. It is alleged that the
other former NSW Ministers, Mr Joe Tripodi bribes were paid to the officials in return
and Mr Tony Kelly, as well as Mr Kelly’s for- for arranging the purchase of the property
26 CHAMBERS.COM
at an inflated price. The AFP subsequently ing that Australia had stepped up its enforce-
restrained property worth AUD1,6 million held ment on foreign bribery since 2012 (when the
by the accused, the accused’s wife and their working group had been critical of Australia’s
associated companies. poor enforcement record). This improvement
• In September 2022, two former employees of included reforms passed in 2015 and 2016 (see
the SMEC engineering group were arrested 1.4 Recent Key Amendments to National Legis-
and charged with conspiracy to commit lation), the establishment of the FAC, the estab-
foreign bribery in relation to projects in Sri lishment of the Fintel Alliance (a public-private
Lanka. It is alleged that between 2009 and partnership aimed at combatting money laun-
2016 the men conspired to arrange the pay- dering, terrorist financing and organised crime),
ment of more than AUD304,000 to foreign and the engagement of AFP liaison officers glob-
government officials to win contracts for the ally in foreign bribery investigations.
supervision of two infrastructure projects in
Sri Lanka worth over USD8,8 million. The OECD Working Group also made a num-
ber of recommendations. Key recommenda-
7.7 Level of Sanctions Imposed tions included ensuring that the AFP and CDPP
Although there has been a steady increase in have adequate resources to effectively enforce
the level of enforcement action for bribery and the foreign bribery offence, proactively pursuing
corruption offences in recent years, in particular criminal charges against companies for foreign
foreign bribery, there is still some way to go. Bol- bribery and related offences and encouraging
stering the resources and abilities of the dedi- companies to develop and adopt adequate
cated fraud and anti-corruption teams within internal controls and compliance programmes.
the AFP will assist, as will the reforms proposed
by the Corporate Crime Bill if reintroduced and 2019 Report
passed. In the OECD’s two-year follow-up report in
December 2019, Australia was commend-
ed for its implementation of a number of the
8. Review Phase 4 Report recommendations, most nota-
bly its detection of foreign bribery, aided by its
8.1 Assessment of the Applicable enhanced protections for private sector whis-
Enforced Legislation tle-blowers. However, there was continued
As Australia is a party to the OECD Anti-bribery concern about Australia’s low level of foreign
Convention, the adequacy and enforcement of bribery enforcement, given the size of Aus-
Australia’s anti-bribery legislation is subject to tralia’s economy and the high-risk regions and
ongoing evaluation. sectors in which Australian companies operate,
and doubts about Australia’s ability to impose
OECD Working Group effective, proportionate and dissuasive criminal
2017 Report penalties.
The OECD Working Group on Bribery published
its Phase 4 Report for Australia in December 2021 Report
2017. The working group identified several In its 2021 Addendum to the above report, the
achievements and positive developments, not- OECD Working Group recognised Australia’s
27 CHAMBERS.COM
increased activity in prosecuting and investigat- Royal Commission into Trade Union
ing foreign bribery cases, together with budget Governance and Corruption Report
increases for the CDPP. However, it also noted Australia’s anti-bribery legislation was also
that the Corporate Crime Bill had not yet been assessed by the Royal Commission into Trade
passed. Australia was invited to provide a further Union Governance and Corruption, which deliv-
progress report by December 2022, including on ered its final report on 28 December 2015, as
the legislative status of the adoption of the Cor- well as by the Western Australia Corruption
porate Crime Bill (which has since lapsed). and Crime Commission’s inquiry into informa-
tion technology companies’ contracts with the
Senate Economics References Committee Department of Health.
Report
In March 2018, the Senate Economics Refer- Royal Commission into Misconduct in the
ences Committee released its report regarding Banking, Superannuation and Financial
the effectiveness of Australia’s legislation gov- Services Industry Report
erning foreign bribery. The report highlighted More broadly, Australia’s enforcement environ-
that, despite the framework of laws and policies ment went through a period of intensification fol-
designed to criminalise foreign bribery being in lowing the Royal Commission into Misconduct
place, Australia’s poor enforcement record sug- in the Banking, Superannuation and Financial
gested that foreign bribery offences were not Services Industry, the final report of which was
being adequately enforced. Factors contributing delivered on 1 February 2019. Following the
to this lack of enforcement included the complex commissioner’s critique of ASIC’s failure to take
nature of the cases, lack of sufficient expertise, tougher action against companies and individu-
delays in investigative procedures, lack of co- als, ASIC announced a stronger enforcement
operation between companies and the authori- approach and established a new “Office of
ties, and limited resources. The committee Enforcement” in July 2019 to lead its enforce-
made several recommendations to improve the ment function. This led to a significant increase
enforcement record, including increasing one-off in the number of enforcement actions being
funding to agencies for the large and complex brought by ASIC, including a 64% increase in
investigation of foreign bribery offences and to civil penalty proceedings and a 36% increase
introduce a “failure to prevent” bribery offence in criminal proceedings commenced from 2018
and a DPA regime. to 2020.
In February 2021, the Australian government As expected, ASIC’s enforcement activity has
published its response to the Committee Report. significantly reduced over the past year, and
It accepted many of the Committee’s recom- ASIC recently announced that it had filed its
mendations and noted that the proposed Cor- final civil case following its enforcement inves-
porate Crime Bill was intended to address many tigations arising from the Royal Commission.
of the issues raised. However, it is not expected that this will dimin-
ish ASIC’s continuing active interest in potential
Corporations Act contraventions by directors
and officers in the foreign bribery space.
28 CHAMBERS.COM
Proposed Federal Anti-Corruption • removing the requirement that the foreign

Commission official must be influenced in the exercise of
In September 2022, the National Anti-Corruption their duties;
Bill 2022 (the “NACC Bill”) was introduced, pro- • removing the requirement that a benefit and
posing the creation of a long-awaited National business advantage must be “not legitimately
Anti-Corruption Commission (NACC). The NACC due” and replacing it with the concept of
is expected to be in place by mid-2023 and will “improperly influencing” a foreign public
investigate serious or systemic corrupt conduct official; and
across the Commonwealth public sector, includ- • extending the offence to cover bribery to
ing any person who adversely influences a public obtain a personal advantage.
official. It will therefore have the power to inves-
tigate both public and private sector targets, as As outlined in 2.1 Bribery, a new offence was
well as third parties such as businesses and their also proposed to be included in Division 70 (to
employees. While corruption commissions have apply prospectively) which targets the failure
been operating in most states and territories for of a company to prevent foreign bribery by an
some time now, earlier proposed models for a associate.
federal equivalent had been heavily criticised as
lacking teeth and did not progress. Significantly, the Corporate Crime Bill proposed
to introduce Australia’s first-ever DPA scheme.
8.2 Likely Changes to the Applicable The purpose of the proposed scheme was to
Legislation of the Enforcement Body develop an effective response to corporate
The Corporate Crime Bill was introduced in crime by encouraging greater self-reporting by
2017 to significantly expand the scope of the companies and to enhance the accountability of
foreign bribery offence, introduce a new corpo- Australian business for serious corporate crime.
rate offence of failing to prevent foreign bribery, The basis of the scheme was reparation, reme-
and to introduce a DPA scheme. The Bill lapsed diation, financial penalties and implementation
on 1 July 2019 as a consequence of the 2019 of effective compliance programmes, and was
federal election, and following its re-introduc- modelled on the equivalent scheme in the UK.
tion in December 2019, again lapsed following
a change in government in July 2022. The new However, the proposed DPA scheme was met
government has not yet indicated whether it will with criticism by the current government when
be introduced (and, if so, in what form). However, it was in opposition for being “too weak”. It is
given the focus on the Corporate Crime Bill by therefore expected that, if the Corporate Crime
the OECD and others, it is reasonable to expect Bill is re-introduced by the current government,
it to be back on the radar following the passage it will incorporate a more stringent DPA scheme,
of the NACC Bill. or exclude it altogether.
The Corporate Crime Bill proposed to amend the The Australian Law Reform Commission (ALRC)
foreign bribery offence by: also recently considered the current corporate
criminal responsibility regime in Australia and
• extending the definition of foreign public offi- identified key recommendations to improve the
cial to include a candidate for office; regime in a report published in April 2020. In par-
29 CHAMBERS.COM
ticular, it recommended standardising attribution The new government has also announced its
of criminal responsibility to corporations and intention to increase transparency over com-
simplifying Part 2.5 of the Criminal Code to make pany ownership, including to introduce a public
it easier for the prosecution, while still allowing registry of corporate beneficial ownership. While
corporations to avoid liability by demonstrating the focus is to prevent corporate money launder-
that they took reasonable precautions to pre- ing and tax evasion, this will also have a positive
vent misconduct. In relation to foreign bribery impact upon combatting bribery and corruption.
liability, the ALRC supported the proposed “fail- No timeline has yet been established.
ure to prevent” offence in the Corporate Crime
Bill, and recommended a debarment regime
be introduced, to prevent companies that have
been found guilty of foreign bribery from obtain-
ing contracts. The ALRC also recommended that
the DPA scheme proposed under the Corporate
Crime Bill be amended to require approval of
DPAs by a current (rather than former) judicial
officer. The Australian government is currently
considering these recommendations.
30 CHAMBERS.COM
Clayton Utz is a leading independent full-ser- managing various collateral issues, including
vice Australian law firm. Its commercial litigation whistle-blower provisions, media management,
team has 150 litigators operating across Syd- defamation and reputational issues, ASX dis-
ney, Perth, Melbourne, Brisbane, Canberra and closure rules, directors’ reputations and the risk
Darwin. The firm’s anti-bribery and corruption of shareholder litigation. The team’s experience
and investigations specialists advise multina- includes advising on Australian Federal Police
tional and Australian companies on corporate investigations into alleged bribery of foreign of-
fraud, bribery, corruption, facilitation payments, ficials; being retained in relation to US investi-
public and private corruption, antitrust, mon- gations into alleged breaches of the US Foreign
ey laundering, and privileges and immunities. Corrupt Practices Act within Australia, by sub-
The team is experienced in assessing risk and sidiaries; and acting for a British multinational
exposure under domestic and international whose employees allegedly conspired to de-
anti-corruption laws. It assists clients with in- fraud tax authorities.
vestigations and remediation, and advises on
Authors
Tobin Meagher is a partner at David Benson is a partner at
Clayton Utz and specialises in Clayton Utz and practises in the
commercial litigation, with areas of commercial litigation
particular expertise advising on and intellectual property. David
anti-bribery and corruption and has worked on some of the
white-collar crime matters, largest pieces of litigation to be
including those involving the payment of secret conducted in Australia in recent years,
commissions, bribery, conspiracy to defraud including acting for Volkswagen, Audi and
and fidelity insurance claims. He has advised Škoda in the diesel emissions regulatory and
clients on risks and responsibilities arising from class actions, and acting for Yara International
anti-bribery legislation, acted for clients who in the Oswal litigation, as well as working on
are the subject of regulatory investigations, significant cross-border projects involving
including by the AFP and ASIC, and has anti-bribery, corruption and sanctions issues.
written and presented on emerging trends in David also has experience in conducting
anti-bribery law. in-depth investigations in both Australia and
foreign jurisdictions.
31 CHAMBERS.COM
Tessa Trend is a senior William Stefanidis is a senior

associate at Clayton Utz who associate at Clayton Utz
specialises in anti-bribery and practising in litigation and
corruption, white-collar crime, regulatory investigations with a
sanctions, risk management and particular focus on white-collar
general litigation. In particular, crime. He has acted for various
she advises clients in relation to their anti- clients in relation to investigations by the AFP,
bribery and corruption obligations, and ASIC and foreign law enforcement agencies
investigates alleged bribery. She has concerning suspected foreign bribery,
conducted an in-country investigation in corruption, unlawful conspiracy, and
central Africa into whistle-blower allegations of contraventions of companies and financial
fraud and senior employee misconduct, services law. William acted for liquidators in
advised a multi-jurisdictional logistics company recovery litigation arising from one of
on allegations of an employee’s systemic Australia’s largest fraudulent tax avoidance
fraud, advised a multinational corporation in schemes. He also advises on bribery and
relation to whistle-blower reports of alleged corruption risks and issues in relation to
foreign bribery, and assisted an Australian transactions and corporate management.
resource company on an Australian Federal
Police investigation into alleged foreign bribery.
Clayton Utz
1 Bligh Street
Sydney
NSW 2000
Australia
Tel: +61 2 9353 4000

Fax: +61 2 8220 6700
Email: tmeagher@claytonutz.com
Web: www.claytonutz.com
32 CHAMBERS.COM
AUSTRIA
Czech Republic
Law and Practice Germany

Slovak
Vienna
Contributed by:
Austria
Michael Rohregger Hungary
Rohregger Rechtsanwälte see p.52
Italy Slovenia
Croatia
Contents
2.1 Bribery p.36
4.1 Defences p.41
5. Penalties p.42
Penalties p.44
33 CHAMBERS.COM
AUSTRIA Law and Practice
Contributed by: Michael Rohregger, Rohregger Rechtsanwälte
1. Legal Framework for Offences the protection of the European Communities’

financial interests; Protocol on the interpre-
1.1 International Conventions tation, by way of preliminary rulings, by the
Austria has signed and ratified the following con- Court of Justice of the European Communi-
ventions. ties of the Convention on the protection of
the European Communities’ financial interests
• The Organisation for Economic Co-operation (ratified by Federal Law Gazette III 267/2002).
and Development (OECD) Convention on
Combating Bribery of Foreign Public Officials Since 1 December 2006, Austria has been a
in International Business Transactions (ratified member of the Council of Europe’s Group of
by Federal Law Gazette III 176/1999). Active States against Corruption (GRECO).
bribery of foreign public officials as stated in
Article 1 (1) of the OECD Anti-Bribery Con- 1.2 National Legislation
vention has been transposed into law (at least The main provisions of criminal law relating
in part) by way of Section 307 of the Austrian to corruption are contained in Section 22 of
Criminal Code (Strafgesetzbuch, StGB) in the the Austrian Criminal Code (criminal offences
version as published in Federal Law Gazette I relating to public officials, corruption and other
153/1998; see also the definition of a “pub- related criminal offences). Individual offences
lic official” in Section 74 (1) clause 4a of the contained in Section 6 of the Austrian Crimi-
Austrian Criminal Code. nal Code (criminal offences against third-party
• The United Nations Convention against Cor- assets) also represent an attempt to counter cor-
ruption (UNCAC) dated 31 October 2003 ruption, particularly in the private sector.
(ratified by Federal Law Gazette III 2006/47,
transposed into law by way of Federal Law In addition, the constituent elements of criminal
Gazette I 109/2007). offences as contained in the Austrian Financial
• The Council of Europe’s Civil Law Conven- Crime Act (Finanzstrafgesetz), in the Austri-
tion on Corruption 1999 (ratified on 30 August an Foreign Trade and Payments Act (Außen-
2006). wirtschaftsgesetz) and in the Austrian Federal
• The Council of Europe’s Criminal Law Con- Act against Unfair Competition (Bundesgesetz
vention on Corruption dated 27 January 1999 gegen den unlauteren Wettbewerb) also serve
(ratified on 25 September 2013). to combat corruption. The Austrian Corporate
• The Convention on the fight against corrup- Liability Act (Verbandsverantwortlichkeitsgesetz)
tion involving officials of the European Com- governs the responsibility of legal entities and
munities or officials of Member States of the registered partnerships. Any disciplinary conse-
European Union dated 26 May 1997 (ratified quences for public officials are set out in other
by Federal Law Gazette III 2000/38, trans- legal provisions.
posed into law in particular by way of Section
74 (1) clause 4a (Section 304/307 (1) clause 1) 1.3 Guidelines for the Interpretation and
of the Austrian Criminal Code). Enforcement of National Legislation
• The Convention on the protection of the Euro- In theory, there are no guidelines on interpreta-
pean Communities’ financial interests dated tion. However, in practice, the courts adhere to
26 July 1995; Protocol to the Convention on the case law of the supreme courts.
34 CHAMBERS.COM
1.4 Recent Key Amendments to National accepted by third parties. This does not result
Legislation from the intended use of virtual currencies by
Bitcoin and other virtual currencies have estab- users, but from the legal definition in the Finan-
lished themselves as a means of exchange on cial-Market-Money-Laundering Act (Finanzmarkt
the market. Among other things, this raises Geldwäschegesetz).
questions from a regulatory perspective. Quite
recently, the EU Directive 2019/713 (on combat- The most recent federal law amending the Aus-
ing fraud and counterfeiting of non-cash means trian Criminal Code and the Austrian Payment
of payment) and replacing Council Framework Services Act 2018 to implement the Directive
Decision 2001/413/JHA (Directive 2019/713) (EU) 2019/713 (on combating fraud and coun-
required an amendment to the Austrian Crimi- terfeiting involving non-cash means of payment)
nal Code. mainly includes the following measures:
The required amendments to the Austrian Crim- • expansion of the definition of non-cash
inal Code entered into force on 11 December means of payment in Section 74 (1) clause
2021 (Federal Law Gazette I 2021/201), in par- 10 of the Austrian Criminal Code to include
ticular amending the definition of the term “non- non-cash means of payment, including virtual
cash means of payment” within the meaning of currencies (see above);
Section 74 (1) clause 10 of the Austrian Criminal • expanding the offenses in:
Code. (a) Section 148a Austrian Criminal Code
(fraudulent misuse of data processing);
Before the amendment only physical non-cash (b) Section 241b Austrian Criminal Code (ac-
means of payment were covered by the defi- cepting, transferring or possessing false
nition. The EU Directive has the explicit aim of or falsified non-cash means of payment);
covering incorporeal means of payment and (c) Section 241c Austrian Criminal Code
“computer-related fraud”. The altered definition (preparing to counterfeit non-cash means
is in line with Article 2 lit a of the Directive, which of payment); and
states, “non-cash payment instrument: non-cor- (d) Section 241f StGB (accepting, transfer-
poreal or corporal devices, objects or records or ring or possessing alienated non-cash
a combination thereof, other than legal tender, means of payment);
and which alone or in conjunction with a proce- • increasing the penalties in Section 126c of
dure or a set of procedures, enables the holder the Austrian Criminal Code (misuse of com-
or user to transfer money or monetary value, puter programs or access data), Section 148a
including through digital means of exchange”. of the Austrian Criminal Code, Section 241c
of the Austrian Criminal Code, Section 241h
The amendment eliminated the requirement that of the Austrian Criminal Code (spying on data
the issuer must be identifiable. Furthermore, the of a non-cash means of payment); and
requirement for the cash-representative-function • implementation of commission of the crime
or the function of issuing cash, no longer applies. within the framework of a criminal organisa-
tion in Section 147 Austrian Criminal Code
Virtual currencies are not means of payment per (aggravated fraud), Section 148a Austrian
se but are considered as such only if they are Criminal Code, Section 241b Austrian Crimi-
35 CHAMBERS.COM
nal Code and Subsection 241f Austrian Crimi- (Section 304), acceptance of advantage (Sec-
nal Code. tion 305), bribery (Section 307) and granting of
advantage (Section 307a).
In the last year the investigative measures in
the Austrian Code of Criminal Procedure were The legislature also planned comprehensive
supplemented by the paragraph regarding “Sei- changes through the Austrian Criminal Proce-
zure in authorities and public offices” (Section dural Law Amendment Act 2018. This Act, which
112a). This amendment, which was the subject for the most part came into force on 1 June 2018,
of lively debate in the run-up, entered into force enables law enforcement agencies to use state
in December 2021, and essentially concerns espionage software (Bundestrojaner) to monitor
the rights of authorities and public officers in encrypted messages and messenger services
the event of a seizure of data in the course of a such as WhatsApp and Skype.
house search. In this case, sensitive intelligence
records or data carriers are to be secured and However, in December 2019, the Austrian Con-
deposited in a suitable manner against unau- stitutional Court annulled large parts of the Aus-
thorised inspection or modification upon the trian Criminal Procedural Law Amendment Act
objection of the person concerned, whereby 2018, including the Bundestrojaner, as unconsti-
the decision as to whether the seized or confis- tutional. Therefore, for the time being, those pro-
cated records and/or data carriers may be used visions will not come into force. The legislature
is made by a court. might pass a new Amendment Act, but this is
not likely to happen in the near future. The Aus-
Moreover, due to the implementation of the EU trian Criminal Law Amendment Act 2018, which
Directive (EU) 2017/1371 on combating fraud came into force on 1 November 2018, extended
affecting the financial interests of the Union by the catalogue of terrorist offences as well as the
means of criminal law (PIF Directive), the Federal domestic jurisdiction related to terrorism.
Law Gazette I 111/2019 adopted correspond-
ing amendments to the Austrian Criminal Code, With the amendment of the Transparency Data
the Austrian Act on the Federal Agency for Pre- Bank Act 2012, which came into force on 7
venting and Combating Corruption and the Aus- November 2019 and 1 January 2020, the con-
trian Code of Criminal Procedure. In the Aus- trol of the appropriate use of public funding or
trian Criminal Code, these amendments were support is being improved.
anchored in the offences “Expenditure fraud
to the detriment of the financial interests of the
European Union” (Section 168f) and “Misappro- 2. Classification and Constituent
priation of funds and assets to the detriment of Elements
the financial interests of the European Union”
(Section 168g) after adaptation by the Federal 2.1 Bribery
Law Gazette I 94/2021. In addition, the imple- Classification and Constituent Elements
mentation of the Directive was accompanied A “unitary perpetrator” system applies in Austria.
by an amendment or redefinition of the terms Thus, the direct perpetrator is punished under
“public official” and “Union official”, which also the same offence (and severity of sentence)
resulted in an addition to the offences of bribery as a person who incites the direct perpetrator
36 CHAMBERS.COM
or contributes to the offence. Accordingly, for (arbitrators) can also come under consideration
instance, it is not only a civil servant who can as perpetrators of corruption offences.
commit an abuse of official authority (as could
be presumed according to the wording of the Bribery
law, as further described below), but also any With regard to “corruptibility” (Section 304 of the
person who incites a civil servant to commit an Austrian Criminal Code), a public official or arbi-
abuse of authority; by the mere attempt at such trator renders themselves liable to prosecution if
incitement, that person is punishable, as well as they demand, accept, or accept the promise of
any person who makes any other contribution an advantage for themselves or for a third party,
to an abuse of official authority on the part of a in return for the exercise of, or the refraining from
civil servant. the exercise of, an official act in violation of their
duties. The official act to be performed must in
In principle, a perpetrator is deemed to be acting any event constitute a violation of duty. If the
with intent once he or she seriously considers public official or arbitrator fulfils all their duties
the realisation of elements constituting a criminal in the correct manner, this constituent element
offence to be possible and accepts the situa- of an offence cannot be fulfilled (however, there
tion. Partly, however, there is a requirement that may be another offence – see further below).
the perpetrator does not consider a particular
circumstance or outcome to be merely possible, Experts appointed in proceedings also render
but deems the existence or occurrence thereof themselves liable to prosecution under this pro-
to be certain. vision if they accept an advantage in return for
preparing a false expert’s report. In respect of
Furthermore, as a general rule, it is not only a these constituent elements, there exists no mar-
completed offence, but a mere attempt at an ginality threshold.
offence, that is punishable.
A person who offers, promises or grants a pub-
The Austrian Criminal Code makes a distinction lic official, arbitrator or expert an advantage for
between civil servants (Beamte), public officials themselves, or a third party, for the exercise of,
(Amtsräger) and arbitrators (Schiedsrichter). Civil or the refraining from the exercise of, an offi-
servants are persons who are entrusted in any cial act in violation of duties shall be commit-
manner whatsoever with administrative duties. ting bribery (Section 307 of the Austrian Criminal
The concept of a “public official” goes further. Code).
It covers all persons who undertake legislative,
administrative or judicial duties for any public In respect of these two offences, no marginality
body or another state or for an international threshold exists.
organisation, whether as executive officer or
employee, as well as those who are authorised to 2.2 Influence-Peddling
execute official acts on behalf of a public body. Acceptance of an Advantage (Section 305
In addition, public officials are also deemed to of the Austrian Criminal Code) and Offering
be persons who act as executive officers or
employees of a government-related organisa-
tion. The decision-makers of an arbitration court
37 CHAMBERS.COM
an Advantage (Section 307a of the Austrian Advantage for the Purpose of Exerting
Criminal Code) Influence (Section 307b of the Austrian
A public official or arbitrator who demands, Criminal Code)
accepts, or accepts the promise of an advan- If a public official or arbitrator demands, accepts,
tage for themselves, or a third party for the due or accepts the promise of, an advantage not
exercise of, or refraining from the due exercise related to a specific official act, but rather with
of, an official act shall be committing the offence the intention of allowing themselves to be influ-
of acceptance of an advantage (Section 305 enced thereby in their activity as a public offi-
of the Austrian Criminal Code). The difference cial, they are committing the offence of accept-
between this and corruptibility (Section 304 of ing an advantage for the purpose of exerting
the Austrian Criminal Code) lies in the fact that influence. With this provision, too, cases are
the official act is in principle in compliance with excluded in which the public official or arbitra-
the law and not in violation of duties. If the public tor merely accepts or accepts the promise of
official or arbitrator is not proactive – ie, he or a minor advantage; where a demand is made,
she does not demand an advantage, but merely here again, there exists no marginality threshold.
accepts an advantage or accepts the promise of
an advantage – then acceptance or acceptance A person who offers, promises or grants to a
of a corresponding promise is only punishable if public official or arbitrator an undue advantage
the advantage in question is undue. for themselves, or a third party with the inten-
tion of thereby influencing the public official or
Advantages not deemed undue are, for instance, arbitrator in their activity as a public official, shall
those for which acceptance is lawful, as well as render themselves liable to prosecution for the
minor-value tokens of appreciation such as are offence of offering an advantage for the purpose
usual in the locality or region – this means, gen- of exerting influence (Section 307b of the Aus-
erally, tokens of appreciation which have a maxi- trian Criminal Code).
mum value of EUR100, provided that the public
official or arbitrator does not regularly accept Illicit Intervention (Section 308 of the Austrian
promises of such tokens or does not regularly Criminal Code)
accept those tokens. Section 308 of the Austrian Criminal Code pro-
hibits the demanding, acceptance, promising or
A person who offers, promises or grants a pub- acceptance of a corresponding promise, offering
lic official or arbitrator an undue advantage for and granting of an advantage for the purpose
themselves, or for a third party in return for the that the person who receives the advantage
due exercise of, or refraining from the due exer- exerts undue influence on the decision-making
cise of, an official act, renders themselves liable of a public official or arbitrator. Such undue influ-
to prosecution for the offence of offering an ence is given if it is aimed at the exercise or the
advantage (Section 307a of the Austrian Crimi- refraining from the exercise of an official act in
nal Code). violation of duties or is associated with the offer-
ing, promise or granting of an undue advantage.
Acceptance of an Advantage for the Purpose Thus, this particular offence is based on a three-
of Exerting Influence (Section 306 of the person relationship: the perpetrator offers an
Austrian Criminal Code) and Offering an
38 CHAMBERS.COM
advantage to someone who then exerts undue duty (such as a managing director of a company)
influence on the public official. and who does not, in violation of their duty, remit
that pecuniary advantage shall be committing
Acceptance of Gifts and Bribery of the offence of acceptance of gifts by a person
Employees or Agents (Section 309 of the holding a position of power (Section 153a of the
Austrian Criminal Code) Austrian Criminal Code).
An employee or agent of a business undertak-
ing who, in the context of business dealings, 2.3 Financial Record-Keeping
demands, accepts, or accepts the promise of Falsification of Balance Sheets (Sections
an advantage for themselves, or a third party, 163a et seq of the Austrian Criminal Code)
from another person in return for the exercise If, in the case of a legal entity or partnership,
of, or the refraining from the exercise of, a legal the executive bodies or executive officers shall
act in violation of their duties, shall be commit- present the balance sheets in an unreasonable
ting the offence of acceptance of gifts and brib- manner in false or incomplete form, and if this
ery of employees or agents (Section 309 of the has the capacity to cause a substantial loss, the
Austrian Criminal Code). Under the terms of the executive bodies or executive officers – and pos-
same offence, any person who offers, promises sibly also the auditors – shall be committing the
or grants an advantage to an employee or agent offence of falsification of balance sheets (Sec-
of a business undertaking in the context of busi- tions 163a et seq of the Austrian Criminal Code).
ness dealings in return for the exercise of, or
refraining from the exercise of, a legal act shall This offence thus faces a number of barriers
also render themselves liable to prosecution. before punishable conduct may actually be
deemed to have occurred. Firstly, the presen-
Section 309 of the Austrian Criminal Code is tation must be unreasonable and, secondly, it
intended to prevent corruption in the private must have the capacity to cause a substantial
sector and thus relates to such conduct in the loss. The perpetrator’s intent must also encom-
private economic sector, whereby employees or pass these aspects.
agents of another business undertaking seek to
obtain preferential treatment, constituting a vio- 2.4 Public Officials
lation of duty through promises or the granting of Abuse of Official Authority (Section 302 of the
gifts or other advantages. A similar criminal pro- Austrian Criminal Code)
vision may be found in Section 10 of the Austrian A civil servant who knowingly abuses their pow-
Federal Act against Unfair Competition. er to execute official acts on behalf of a public
body as the executive officer thereof, and who
Acceptance of Gifts by Persons Holding thereby intends to cause prejudice to the rights
a Position of Power (Section 153a of the of a third party, is committing an abuse of official
Austrian Criminal Code) authority. Such an offender may also consist of
A person who has accepted a pecuniary advan- the state itself. There is a requirement that the
tage that is not merely insignificant in return for perpetrator must consider the existence of an
the exercise of the power granted to them to abuse of power to be certain.
effect disposal in respect of third-party assets
or of the power to place another person under a
39 CHAMBERS.COM
Misuse of Funding (Section 153b of the the case of corruption offences if the perpetra-
Austrian Criminal Code) tor was an Austrian national at the time of the
Any person who uses funding granted improp- offence or the offence was committed in favour
erly for purposes other than those for which it of an Austrian public official or arbitrator.
was granted shall render themselves liable to
prosecution for misuse of funding (Section 153b Falsification of balance sheets (sections 163a–f
of the Austrian Criminal Code). of the Austrian Criminal Code) is also subject to
penalty under Austrian criminal laws if the prin-
Agreements Restricting Competition in cipal place of business or registered office of the
Procurement Procedures (Section 168b of the organisation is situated in Austria. Furthermore,
Austrian Criminal Code) Austrian criminal law comprises other special
If unlawful agreements are made, in the context provisions that could in principle establish pun-
of a procurement procedure, that are aimed at ishability under Austrian criminal laws.
inducing the principal to accept a particular offer,
this constitutes commission of the offence of an 3.3 Corporate Liability
agreement restricting competition in a procure- The Austrian Corporate Liability Act (Verbands-
ment procedure (Section 168b of the Austrian verantwortlichkeitsgesetz, VbVG) sets out the
Criminal Code). preconditions under which legal entities, reg-
istered partnerships and European Economic
2.5 Intermediaries Interest Groupings (associations) are liable for
See 2.1 Bribery. criminal offences. All offences may be potentially
considered criminal offences. An association
may – in addition to the natural persons – be held
3. Scope liable for a criminal offence if the act has been
committed in favour of the association or duties
3.1 Limitation Period have been breached through the act of crime in
The limitation period for the prosecution of question, which duties relate to the association.
corruption offences is based primarily on the Where certain preconditions are given, criminal
amount of any loss or illegitimate advantage, offences on the part of a decision-maker or an
whereby, as a rule, the limitation period is five employee of the association may enter into con-
or ten years. Here, it must be borne in mind that sideration.
particular periods, specifically the majority of a
preliminary criminal investigation, are not count- The liability of an association for an offence and
ed as part of the limitation period. the punishability of decision-makers or employ-
ees in respect of the same act do not preclude
3.2 Geographical Reach of Applicable one another. By way of legal consequence, the
Legislation Austrian Corporate Liability Act imposes primari-
Austrian criminal laws apply in any event to all ly a fine. Under some circumstances, successors
offences committed within Austria. Furthermore, in title may also bear the legal consequences set
Austrian criminal laws apply to criminal offences out in the Austrian Corporate Liability Act. A uni-
committed abroad by an Austrian civil servant, versal successor in title is in any event affected
public official or Austrian arbitrator, as well as in by the legal consequences; a singular succes-
40 CHAMBERS.COM
sor in title is affected if, essentially, the same possibility of a settlement according to the Aus-
ownership circumstances exist in respect of the trian Criminal Code (diversion or withdrawal from
entity and the business operation or activity is criminal proceedings). In such a case, where the
essentially being continued. preconditions are given, it may be possible to
work accordingly towards diversion.
4. Defences and Exceptions 4.2 Exceptions

There are no exceptions to the foregoing defenc-
4.1 Defences es.
Particularly in the case of crimes against proper-
ty, a defence may be based purely on the asser- 4.3 De Minimis Exceptions
tion that the objective constituent elements of As previously set out, some offences are not
the offence are not even fulfilled. If – for example, punishable if no undue advantage is granted
in the case of an allegation of breach of trust or promised. “No undue advantage” means,
(Section 153 of the Austrian Criminal Code) – it for instance, an advantage, the acceptance
is possible to demonstrate straightforwardly that of which is permitted by statute, or tokens of
the company suffered no prejudice (for instance, appreciation of minor value such as are usual
because a payment has a corresponding value for a locality or region, which means, in principle,
for the company) then neither does punishabil- tokens of appreciation that have a value totalling
ity enter into consideration. Furthermore, within a maximum of EUR100, provided that the pub-
the framework of defence, it is often possible to lic official or arbitrator does not regularly accept
demonstrate that the perpetrator had no inten- such tokens or the promise of such tokens. As
tion to satisfy the constituent elements of an soon as a public official or arbitrator demands an
offence (ie, the perpetrator lacked the intent that advantage, there can be no de minimis excep-
is a mandatory precondition of punishability). tion.
General grounds under criminal law aimed at 4.4 Exempt Sectors/Industries

justifying and excusing an action (self-defence, No sectors or industries exist that are entirely
mistake of fact meaning an absence of mens exempt from corruption offences. It is merely
rea, etc) play a very secondary role in criminal necessary to bear in mind that, depending on
law relating to corruption. Naturally, the pros- the person to whom an advantage is granted
ecuting authority is under a duty to provide evi- (in particular, whether to a public official or an
dence and the presumption of innocence applies employee in the private sector), differing offenc-
to the accused. If there exists any doubt as to es may apply.
their guilt, they must be acquitted (in dubio pro
reo). 4.5 Safe Harbour or Amnesty Programme
Austrian criminal law sets out a number of pos-
In the event that the accused has already con- sibilities that enable prosecution to be avoided,
fessed or wishes to confess, an attempt must despite a criminal offence having been commit-
be made to compensate for damages to the ted.
greatest possible extent, since this not only con-
stitutes a mitigating factor but may enable the
41 CHAMBERS.COM
Active Repentance penalty will be substantially below the minimum

With regard to numerous crimes against prop- level. This option is also possible if the perpetra-
erty (eg, breach of trust, money laundering), the tor discloses their knowledge only after already
punishability of the perpetrator is precluded if, having been heard as an accused or having been
before the criminal prosecution authorities have compelled to testify.
learned of their culpability, they voluntarily make
good the entire loss arising from their action, or “Diversion” or “Withdrawal from criminal
contractually undertake to indemnify the injured proceedings”
party accordingly for the loss suffered within Under certain circumstances, the possibility
a particular period, and indeed do so. Active exists that the public prosecutor’s office/the
repentance may also be by way of self-indict- court withdraws from the prosecution (“diver-
ment, whereby the perpetrator must at the same sion” – settlement according to Section 198
time make good the loss suffered by way of a (and following) Austrian Criminal Code) and the
deposit with the authority. In the case of corrup- perpetrator need only fulfil particular conditions
tion offences in relation to public officials/arbi- (in particular, making good losses, payment of
trators (abuse of official authority, bribery, etc), a monetary amount or charitable contributions).
there exists no possibility of active repentance. In order for diversion to enter into considera-
tion, above all, the facts must be clarified and the
Prosecution Witness perpetrator must assume responsibility therefor
The perpetrator shall not be prosecuted if, before (as a rule, a confession is thus required). Fur-
being questioned as an accused or before being thermore, the degree of the perpetrator’s guilt
compelled to testify, the perpetrator voluntarily may not be serious and the offence may not be
approaches the public prosecutor’s office, gives subject to a custodial sentence of more than five
a repentant confession as to their contribution years. Therefore, in the case of more major cor-
to an act and discloses their knowledge of new ruption cases, diversion does not enter into con-
facts or evidence, knowledge of which makes sideration. Further restrictions exist in the case
a key contribution to uncovering fully a greater of abuse of official authority.
criminal offence over and above their own contri-
bution thereto or to determining a leading party
to the offence. Where relevant, particular condi- 5. Penalties
tions may be imposed upon them (compensat-
ing for loss, charitable contribution, payment of 5.1 Penalties on Conviction
a monetary amount, etc – see also under Diver- In terms of penalties, Austrian criminal law pri-
sion below). marily has monetary fines and custodial sen-
tences. Under criminal law on corruption, custo-
If the perpetrator is a member of a criminal dial sentences in principle range up to ten years
organisation and if they disclose their knowledge, (or more, in exceptional instances). Even in the
making a significant contribution to uncovering event of several offences, the maximum penalty
the criminal offences of that criminal organisa- may only be applied in full on a single occasion.
tion or to determining a leading person involved
therein, the perpetrator has the possibility of an Indeed, where several offences are adjudged
exceptional reduced sentence. In such event, the simultaneously, in criminal trials, the “absorp-
42 CHAMBERS.COM
tion principle” applies (Section 28 of the Austrian sentence – is determined according to the gen-
Criminal Code), which states that, despite the eral criteria applied to determination of a penalty,
commission of several criminal offences, only a the amount of the individual daily rate is based
single penalty – and not, for instance, a series of on the personal circumstances and economic
individual penalties (“accumulation principle”) – capacity of the perpetrator (Section 19 of the
is imposed. This penalty is to be determined in Austrian Criminal Code). The perpetrator is to
accordance with the law that imposes the high- pay an amount such that what remains amounts
est penalty. to merely a subsistence level. However, here too,
the law sets out a maximum limit: the maximum
If, for instance, a perpetrator commits an offence daily rate that may be imposed totals EUR5,000.
subject to a custodial sentence of up to one year
and a further offence subject to a custodial sen- Under certain preconditions, custodial sentenc-
tence of between six months and five years then es may also be imposed conditionally with a pro-
the penalty shall be fixed between the bound- bation period. If a custodial sentence totalling a
aries of six months and five years. Within this maximum of two years is imposed, this may be
framework, the specific penalty shall be imposed served under certain circumstances by way of
in accordance with the general criteria applied house arrest (using an electronic ankle tag).
to determination of a penalty (regarding the per-
petrator’s guilt, etc, see Section 32 et seq of the Assets used for the commission of a criminal
Austrian Criminal Code). offence or obtained through the offence may be
declared forfeited. This may in some circum-
Custodial sentences and monetary fines are thus stances also pertain to assets that, at the time
subject to upper limits (“capped”). The maxi- of the judicial decision, are not (or are no longer)
mum custodial sentence is based directly on the in the ownership of the perpetrator. Accordingly,
wording of the law (eg, Section 304 (1) of the this is not a penalty in the strict sense.
Austrian Criminal Code: “Custodial sentence of
up to three years”, but considers the possibility If a civil servant is sentenced for a corruption
of exceeding the upper limit in Section 39 of the offence (or another intentional offence) to a cus-
Austrian Criminal Code). todial sentence of over one year or a conditional
custodial sentence of over six months, the civil
With regard to monetary fines, the Austrian servant is dismissed from office (Section 27 (1)
Criminal Code applies the system of daily rates. of the Austrian Criminal Code).
For instance, commission of a criminal offence
is subject to imposition of a certain number of Sentencing under the Austrian Corporate Liabil-
daily rates – 360, or a maximum of 720 (eg, ity Act may have certain secondary consequenc-
Section 153a: “[…] or a monetary fine of up to es for an entity, such as a restriction on licences
720 daily rates”). This means that the perpetra- under the Austrian Foreign Trade and Payments
tor must pay a specific monetary amount per Act as well as on participation in procurement
day for a specific number of days (a maximum procedures.
of 720, but according to Section 19 (1) of the
Austrian Criminal Code, at least two). While the
number of days – as in the case of a custodial
43 CHAMBERS.COM
5.2 Guidelines Applicable to the 6. Compliance and Disclosure

Assessment of Penalties
A number of corruption offences provide for a 6.1 National Legislation and Duties to
minimum penalty, whereby this does not yet Prevent Corruption
mean an unconditional custodial sentence on In addition to numerous requirements of busi-
a mandatory basis (eg, Section 304 (2) of the ness undertakings and legal entities under busi-
Austrian Criminal Code: “Custodial sentence of ness enterprise and company law, the Austrian
between six months and five years”). The basis Corporate Liability Act is also intended to estab-
for assessment of the penalty is the guilt of the lish an adequate control system. For instance,
perpetrator. In this context, primarily the demerit a legal entity/partnership is liable for a crimi-
(Unwert) in terms of the perpetrator’s attitude nal offence committed by an employee only if
and action, and the outcome of the offence must commission of the offence was enabled or sig-
be taken into account. nificantly facilitated on the basis that decision-
makers failed to exercise the requisite and rea-
The Criminal Code sets out a catalogue of spe- sonable care appropriate to the circumstances,
cific aggravating and mitigating factors, whereby in particular by omitting significant technical,
aspects not included in this catalogue must also organisational or personnel measures to prevent
be borne in mind. Particular aggravating fac- the offence.
tors include circumstances where a perpetrator
commits several criminal offences or continues Numerous business undertakings create internal
the same over a lengthy period, has received a compliance rules, although they are not under
relevant prior conviction, or where the perpetra- any direct statutory obligation to do so. Howev-
tor is the instigator or ringleader in relation to er, special rules do apply with regard to particu-
an offence. The greatest mitigating factor is a lar sectors/undertakings, such as appointment
repentant confession. of a compliance officer.
Further mitigating factors include if the perpe- In practical terms, for a business undertaking
trator has previously led a regular life, if they and its executive bodies/officers, it would in any
were only involved in a secondary manner, if the event appear advisable to establish comprehen-
offence is already some time in the past, if the sive preventive measures, including compliance
proceedings have taken a disproportionately rules, to avoid liability under civil law or liability
long time for reasons not attributable to the to prosecution under criminal law.
perpetrator or the perpetrator’s defence attor-
ney, if the perpetrator was enticed to commit 6.2 Regulation of Lobbying Activities
the offence more due to a particularly attractive On 1 January 2013, the Austrian Lobbying and
opportunity and if they seriously attempted to Interest Representation Transparency Act (Aus-
make good the loss caused or to prevent further trian Lobbying Act) came into force.
detrimental consequences.
The purpose of the Austrian Lobbying Act, as
stated in the legislative materials, namely “to
create clear conditions for activities intended to
influence the government decision-making pro-
44 CHAMBERS.COM
cesses”, shall be achieved by three measures. • “Lobbying activity” means any organised,
All persons and companies that engage in lob- structured and direct contact with officials for
bying: the purpose of influencing certain decision-
making processes in legislation or enforce-
• must be recorded in the “Lobbying and Inter- ment, private-sector administration of the
est Representation Register” (Register); federal government, the provinces, munici-
• they must submit to certain obligations of palities and municipal associations.
conduct, such as: • “Lobbying mission” is a contract against pay-
(a) duty to register; ment that obliges a contractor to carry out
(b) duties to provide information (including lobbying activities.
identity, task, concern, duty to tell the • “A lobbyist” is a person who carries out
truth, for lobbying companies: the ex- lobbying activities as a body, employee or
pected fee); contractor of a lobbying company or whose
(c) prohibitions (claiming a non-existing duties include this.
commissioned or consulting relationship • “Lobbying firm” is a company whose busi-
with a functionary, unfair procurement of ness purpose includes the acceptance and
information, unfair and inappropriate exer- performance of a lobbying assignment (no
tion of pressure); and permanency required).
(d) the code of conduct (it should be noted • “Corporate lobbyist” is an executive body or
that the code of conduct of the Austrian employee of a company whose duties include
Lobbying Act is very general and contains lobbying activities for this company, unless
a large number of undefined legal terms, the duties are professional obligations defined
which complicates the implementation of by law.
the law); and
• they must fear sanctions (administra- From a compliance perspective, two paragraphs
tive penalties of up to EUR20,000, or up are particularly relevant.
to EUR60,000 in the event of a repeated
offence) and other legal consequences (dele- • According to Section 6 of the Austrian Lobby-
tion from the list, nullity of contracts) in the ing Act, which defines the principles of lobby-
event of non-compliance. ing activities and representation of interests,
lobbyists and interest-representatives are
The scope of application of the Lobby Act con- obliged:
cerns activities that are directly aimed at influ- (a) to disclose their identity, their task and
encing certain decision-making processes in their specific concerns;
the legislation and enforcement of the federal, (b) not to obtain information in an unfair
provincial government, municipalities and the manner;
associations of municipalities. (c) to disclose information truthfully;
(d) to inform themselves about, and comply
The Austrian Lobbying Act contains a number of with, activity restrictions and incompat-
legal definitions. ibility rules; and
(e) not to exert unfair or inappropriate pres-
sure on functionaries.
45 CHAMBERS.COM
• Section 7 of the Austrian Lobbying Act One year before the law was introduced, the
requires lobbying companies or companies Austrian Public Affairs Association (ÖPAV) was
that employ corporate lobbyists to base their constituted as a professional group of pub-
lobbying activities on a code of conduct, lic affairs officers in companies, associations,
which they must also make public (eg, via a NGOs and agencies. Its members now number
notice on their own website). more than 80 and work as professional lobby-
ists in their respective organisations. They have
The social partners (Sozialpartner) and collective subjected themselves to a strict code of conduct
agreement institutions are explicitly excluded (by means of international guidelines) that goes
from the Austrian Lobbying Act. They are solely far beyond the requirements defined in the law.
obligated to register, as are other self-governing According to international observers, the result
bodies and interest groups, although in addition is the most comprehensive and progressive
to the registration obligations the conduct obli- guideline in all of Europe.
gations apply to them.
The Austrian Public Affairs Association sends
Also excluded from the scope of the Austrian out a clear signal of transparency and quality to
Lobbying Act are political parties, church and politicians, civil society, as well as to clients and
religious societies that have been legally recog- the interested public.
nised, the Austrian Association of Municipalities,
the Austrian Association of Cities, the statutory 6.3 Disclosure of Violations of Anti-
social insurance institutions and their main asso- bribery and Anti-corruption Provisions
ciation, as well as interest groups that do not An authority that becomes aware of a suspected
employ employees as interest representatives. criminal offence within its statutory sphere of
influence is under a duty to report the matter to
Furthermore, certain activities – listed in a tax- the criminal prosecution authorities.
onomic manner – are explicitly excluded. The
Austrian Lobbying Act does not apply to: There exists no general obligation under crimi-
nal law upon individuals and/or business under-
• activities of public officials in the exercise of takings to notify breaches of anti-bribery and
their duties; anti-corruption rules. However, if, for instance,
• activities of a person by which they look after a managing director is aware of a planned or
non-entrepreneurial interests of their own; continuing criminal offence and takes no action,
• the representation of the interests of a party although they could do so, it may under certain
or participant concerning administrative or circumstances be the case that they thereby ren-
judicial proceedings; der themselves guilty of the same offence due to
• legal advice or representation by lawyers, having failed to act as required (Section 2 of the
notaries, certified public accountants and Austrian Criminal Code). Intentionally protecting
other persons authorised to do so; and a perpetrator against criminal prosecution is also
• the representation of foreign policy interests prohibited (preferential treatment pursuant to the
in diplomatic or consular dealings carried out terms of Section 299 of the Austrian Criminal
upon request by a functionary. Code).
46 CHAMBERS.COM
6.4 Protection Afforded to Whistle- 7. Enforcement

Blowers
The whistle-blower scheme set out in Section 2a 7.1 Enforcement of Anti-bribery and Anti-
(6) of the Austrian Public Prosecution Act (Staat- corruption Laws
sanwaltschaftsgesetz, StAG) makes it possible In Austria, corruption is fought on several lev-
to ensure protection of a whistle-blower’s ano- els. Where a criminal offence is committed, the
nymity from a technical perspective. perpetrator can primarily expect a criminal trial
and, subsequently, potentially a monetary fine
If the whistle-blower has rendered themselves or custodial sentence. Before a main trial takes
liable to prosecution, the possibility exists of place, there is a preliminary investigation, which
exceptional mitigation or exemption from pun- often takes many years, and which is directed
ishment on the basis of the provision governing by the public prosecutor’s office.
prosecution witnesses (see 6.5 Incentives for
Whistle-Blowers). If, as a result of the perpetrator’s unlawful
actions, a loss has been suffered, the parties
Otherwise, with regard to whistle-blowers, there who have suffered the loss may, to some degree,
exist numerous unresolved issues in Austria in have asserted their claims already in the criminal
terms of civil law, labour law and criminal law. proceedings and, in any event, in separate civil
proceedings.
6.5 Incentives for Whistle-Blowers
If a whistle-blower has rendered themselves Public-sector employees (particularly civil serv-
liable to prosecution, the possibility exists that ants) must additionally anticipate disciplinary
they may be exempted from any penalty as a proceedings by the administrative authorities.
prosecution witness, or the penalty applied may
at least be subject to exceptional mitigation (see 7.2 Enforcement Body
6.4 Protection Afforded to Whistle-Blowers). The criminal prosecution authorities against
corruption offences in Austria are primarily the
6.6 Location of Relevant Provisions Public Prosecutor’s Office for Economic Crime
Regarding Whistle-Blowing and Corruption, and the Federal Bureau for Anti-
Section 80 (1) of the Code of Criminal Procedure Corruption, whereby the ordinary public prose-
(Strafprozessordnung) sets out the right of any cutor’s offices and the police authorities are also
person who becomes aware of commission of permitted to investigate corruption offences. The
a criminal offence to report the offence to the public prosecutor’s office directs the preliminary
criminal investigation department or the public investigation. It may conduct investigations
prosecutor’s office. itself or – as is generally the case – refer them
to criminal investigators, particularly the Federal
Under the Austrian Public Prosecution Act (Sec- Bureau for Anti-Corruption, instructing them to
tion 2 a (6)), the whistle-blowing system of the undertake the requisite investigations. The Aus-
Public Prosecutor’s Office for Economic Crime trian Code of Criminal Procedure provides for
and Corruption has been anchored in statute, various investigative measures, such as property
as detailed on the website of the Prosecutor’s searches, the securing of documents and moni-
Office.
47 CHAMBERS.COM
toring telephone conversations, so that these are does it have a degree of scope. In any event,
available to the criminal prosecution authorities. the accused has a legal right to the manner of
proceeding. Arrangements between the public
The public prosecutor’s office has the possibility prosecutor’s office, the court and the accused
of suspending a preliminary investigation where are strictly prohibited.
there is no prospect of a successful prosecution.
In addition, it may offer the accused the possibil- 7.5 Jurisdictional Reach of the Body/
ity of diversion (that is, an alternative procedure) Bodies
and terminate the proceedings on this basis. It The public prosecutor’s office is under a duty of
may also decide on exemption from penalty for objectivity and has a status equal to that of the
a prosecution witness. If none of the aforemen- defendant in the main trial. However, being in
tioned options enters into consideration, it must charge of the preliminary investigation, de facto
bring a charge. In the event of a legally valid it has numerous possibilities which are not open
indictment, a main trial takes place before an to the accused (for instance, conducting prop-
independent court. There are no special courts erty searches and securing property).
responsible for corruption matters, but within
the criminal courts there often exist specialised 7.6 Recent Landmark Investigations or
panels for this purpose. Decisions involving Bribery or Corruption
There have been no landmark investigations or
7.3 Process of Application for decisions in respect of bribery or corruption in
Documentation the very recent past.
Most investigation measures are entrusted by
the public prosecutor’s office to the criminal 7.7 Level of Sanctions Imposed
investigation department and these are then In theory, the penalty ranges up to a ten-year
conducted by that department. In the event custodial sentence for natural persons (eg, Sec-
of imminent danger, the criminal investigation tion 304 (2) of the Austrian Criminal Code) and a
department may conduct particular investigation fine of EUR1,3 million for entities, whereby both
measures without being instructed to do so by maximum penalties may indeed be even higher
the public prosecutor’s office. Instructions con- under certain circumstances. It would appear
cerning investigation measures that encroach that, for a first offence, the maximum penalties
upon the fundamental rights of subjects require have not yet been applied.
judicial approval.
7.4 Discretion for Mitigation 8. Review

In principle, the public prosecutor’s office cannot
apply any discretion. If the corresponding pre- 8.1 Assessment of the Applicable
conditions are given for discontinuation, diver- Enforced Legislation
sion, or the status of a prosecution witness, it The evaluation of implementation and enforce-
must proceed accordingly. Only with regard to ment of the OECD Convention on Combating
the question of which diversion measures enter Bribery of Foreign Public Officials in Interna-
into consideration – and, in the event of pay- tional Business Transactions is undertaken by
ment of a monetary sum, the amount thereof – way of peer reviews, and monitoring consists of
48 CHAMBERS.COM
several phases. Several reports have been pub- introduction of a code of conduct for civil serv-
lished, the latest in 2017, by way of a follow-up ants, were all deemed positive. However, it was
to the report from 2012. In the 2012 report, the also noted that Austria has omitted to implement
Working Group had recommended that Austria all previous recommendations satisfactorily.
take appropriate steps within its legal system
to ensure that nationality jurisdiction applies to The GRECO’s fourth evaluation round com-
Austrian companies that bribe abroad, including menced on 1 January 2012 and dealt with the
by using non-nationals as intermediaries. topic of “Prevention of corruption in respect of
members of parliament, judges and prosecu-
Furthermore, the Working Group issued some tors”. In the evaluation report, the GRECO rec-
recommendations regarding the liability of legal ommends that Austria implement a series of
persons for the bribery of foreign public officials, measures to prevent bribery. While it was con-
the investigation and prosecution of foreign brib- sidered positive for law-makers to be treated in
ery cases, and the liability of legal persons for the same manner as those in other categories
the bribery of foreign public officials (for greater of public office in terms of corruption offences,
detail, see the OECD, Phase 3 Report on Imple- Austria was deemed to rely too much on the
menting the OECD Anti-Bribery Convention in deterrent effect of this provision of criminal law.
Austria, December 2012). The follow-up report Thus, there needed to be a requirement, for
from 2017 deals with the changes that have instance, for internal rules and orientation aids
occurred in the intervening period (for instance, within Parliament regarding the acceptance,
the decision of the Constitutional Court in rela- valuation and disclosure of gifts, hospitality and
tion to the Austrian Corporate Liability Act, VfSlg other advantages, including external sources of
20.112/2016, and the introduction of the elec- support made available to parliamentarians. The
tronic register of account information). recommendations stated in the GRECO report
were to be implemented by 30 April 2018.
However, according to the terms of a report
published recently by the anti-corruption organ- The fourth evaluation round (“Prevention of cor-
isation Transparency International, Austria has ruption among members of parliament, judges
taken only “initial steps” with regard to bribery and prosecutors”) is still ongoing. The related
abroad and has thus performed worse than in evaluation report was published by GRECO in
the last report. February 2017; the first implementation report
in July 2019. This was followed by two interim
Within the framework of peer reviews, the GRECO implementation reports, the first of which was
examines observance and implementation of the published in March 2021 and concluded that the
legal instruments respectively approved by the low level of compliance with the recommenda-
Council of Europe. With regard to the first two tions remained “globally unsatisfactory” in the
evaluation rounds, the setting up and reinforce- meaning of Rule 31 revised, paragraph 8.3 of the
ment of the Federal Bureau for Anti-Corruption, Rules of Procedure and asked the head of del-
the Public Prosecutor’s Office for Economic egation of Austria to provide a report on the pro-
Crime and Corruption, and the Anti-Corruption gress in the implementation of the outstanding
Committee, plus stronger co-operation between recommendations at the latest by 30 September
various criminal prosecution authorities and the 2021. This report was received as requested and
49 CHAMBERS.COM
served as a basis for the present Second Interim if their legal origin cannot be proven to the
Compliance Report. satisfaction of the court; and
• the fact that the Austrian legislation not only
The Second Interim Compliance Report evalu- allows the jurisdiction to prosecute when
ates the progress made in implementing the out- extradition is denied due to nationality, but
standing recommendations since the previous also allows that jurisdiction when extradition
Interim Report and provides an overall appraisal is denied for other reasons not related to the
of the level of Austria’s compliance with GRECO nature of the offences.
recommendations. The report concludes that
Austria has now implemented satisfactorily or However, a number of challenges were also
dealt with in a satisfactory manner three of the noted in the context of implementing the Con-
19 recommendations contained in the Fourth vention, consisting of an absence of measures
Round Evaluation Report. Of the remaining rec- to ensure the effectiveness of the domestic leg-
ommendations, nine have been partly imple- islation on the criminal liability of legal persons,
mented and seven have not been implemented. or measures to expand the protection of whis-
tle-blowers in the private sector. Furthermore,
The fifth evaluation round on “Preventing cor- a number of recommendations were made with
ruption and promoting integrity in central gov- regard to improvements to procedural law. For
ernments (top executive functions) and law greater detail, see the United Nations Confer-
enforcement agencies” will continue until at least ence of the States Parties to the United Nations
2022–23. Convention against Corruption, Implementation
Review Group Fifth session, executive summary,
The status of implementation of the UNCAC in CAC/COSP/IRG/I/3/1/Add.11.
the member states is also checked by way of
peer reviews, whereby the results are summa- 8.2 Likely Changes to the Applicable
rised in reports and recommendations given. Legislation of the Enforcement Body
The only, and thus the latest, report on imple- Due to government reshuffles in Austria, the Tax
mentation of the Convention by Austria dates Fraud Prevention Act did not come into force in
from 2014 and reviewed the implementation of 2020. The aim of this legislation was to increase
Chapter III (Criminalisation and Law Enforce- transparency in the area of direct taxation, with
ment) and IV (International Co-operation) of the the aim of improving the fight against tax avoid-
UNCAC. The following items were emphasised ance and tax evasion in the internal market. It
as strengths of national corruption provisions shall define the obligation to report cross-border
implementing the aforementioned chapters of notifiable transactions to the Austrian compe-
the UNCAC: tent authority within a certain period of time and
define the automatic exchange of information
• the broad interpretation of the concept of between the notifications received and the com-
“business activities” when applying; petent authorities of the other member states. In
• the provision on bribery in the private sector; addition, this law should lead to a tightening of
• the broad range of state authorities protected; tax and customs offences.
• the availability of “extended forfeiture” for
assets that are likely to be proceeds of crime
50 CHAMBERS.COM
In general, the COVID-19 pandemic has not had

a substantial influence on the applicable legisla-
tion and/or the enforcement body. However, the
pandemic is keeping the legislature busy with
a range of related questions, so it is question-
able when the federal government will be able
to tackle in detail other major legislative changes
that are not related to the current health crisis.
51 CHAMBERS.COM
Rohregger Rechtsanwälte is located in the law and compliance. Companies are not only
centre of Vienna and consists of two lawyers, represented in the case of pending procedures,
four associates and three paralegals. The firm, but also advised as a preventive measure with
which was founded in 2004, primarily advises respect to compliance. Furthermore, a variety of
and represents companies and individuals in training courses are offered, especially on com-
the field of white-collar crime, anti-corruption pliance and house searches.
Author
Michael Rohregger is partner of
the firm, with a wealth of
experience in white-collar crime,
anti-corruption law, compliance
and human rights’ protection.
He is an honorary professor at
the University of Vienna’s Department of
Criminal Law, and a member of the Austrian
Association of Defence Lawyers, the
Commission on Austrian Criminal Law and the
Austrian Bar’s Working Group on Criminal Law.
In addition, he is vice-president of the Vienna
Bar Association and holds lectures on anti-
corruption law and white-collar crime law at
the University of Vienna.
Rohregger Rechtsanwälte
Rotenturmstraße 17
1010 Wien
Austria
Tel: +43 1 53553 1000

Email: michael.rohregger@rwk.at
Web: www.rwk.at
52 CHAMBERS.COM
CANADA
Law and Practice
Greenland
Contributed by:
Benjamin Bathgate, Guy Pinsonnault, Canada
Jamieson Virgin and Timothy Cullen
McMillan see p.72 USA
Ottawa
Contents
2.1 Bribery p.55
4.1 Defences p.62
5. Penalties p.63
Penalties p.63
53 CHAMBERS.COM
CANADA Law and Practice
Contributed by: Benjamin Bathgate, Guy Pinsonnault, Jamieson Virgin and Timothy Cullen, McMillan
1. Legal Framework for Offences federal Department of Justice published The

Corruption of Foreign Public Officials Act: A
1.1 International Conventions Guide. It provides a general overview and back-
On 17 December 1998, Canada ratified the ground information about the CFPOA. However,
Organisation for Economic Co-operation and it has not been updated to reflect amendments
Development (OECD) Convention on Combating to the CFPOA since its creation and does not
Bribery of Foreign Public Officials in International provide significant guidance.
Business Transactions. Canada also agreed to
the 2009 OECD Recommendation for Further The Public Prosecution Service of Canada
Combating Bribery of Foreign Public Officials. (PPSC) is the national prosecuting authority
In addition to the OECD Convention, Canada is for federal offences, including violations of the
a party to the Inter-American Convention against CFPOA (offences under the Criminal Code are
Corruption (ratified 1 June 2000), and the United primarily the responsibility of provincial Attor-
Nations Convention against Corruption (ratified neys General). The PPSC has a Deskbook that
2 October 2007). sets out guiding principles as well as directives
and guidelines regarding the exercise of federal
1.2 National Legislation prosecutorial discretion. The PPSC Deskbook
Canada followed through on its obligation under contains a specific guideline for prosecutions
the OECD convention to implement legislation to under the CFPOA; however, it contains little
criminalise bribery of foreign public officials by information of practical use for the non-pros-
enacting the federal Corruption of Foreign Pub- ecutor. Similarly, the PPSC’s Proposed Best
lic Officials Act (CFPOA) on 14 February 1999. Practices for Prosecuting Fraud Against Govern-
The CFPOA only addresses the bribery of public ments does not contain information regarding
officials who are outside Canada. interpretation and enforcement.
Canada’s federal Criminal Code contains a 1.4 Recent Key Amendments to National
number of domestic offences for bribery, fraud, Legislation
breach of trust, corruption, and influence-ped- In response to criticism about low levels of
dling, among other offences, which are applica- enforcement, the CFPOA was significantly
ble to both public officials and private parties. expanded through amending legislation in June
The province of Quebec is the only non-federal 2013. The amendments broadened the scope
jurisdiction in Canada with its own anti-corrup- and application of Canada’s anti-bribery of for-
tion legislation. Its Anti-Corruption Act came into eign public officials regime, established new
force on 13 June 2011, at a time when allega- offences, and increased penalties, among other
tions of significant corruption in relation to public changes. More recently, the elimination of an
construction contracts were being investigated. exception in the CFPOA for facilitation payments
(arising from the 2013 amending legislation)
1.3 Guidelines for the Interpretation and came into force on 31 October 2017.
Enforcement of National Legislation
There is limited official guidance relating to the Amendments to the Criminal Code authorising
interpretation and enforcement of Canada’s anti- the use of remediation agreements (ie, deferred
bribery/anti-corruption regime. In May 1999, the prosecution agreements) became available as
54 CHAMBERS.COM
a means of resolving criminal charges against • a person who holds a legislative, administra-
businesses for certain offences under the Crimi- tive or judicial position in a foreign state;
nal Code and other criminal statutes, including • a person who performs public duties or func-
the CFPOA. Deferred prosecution agreements tions for a foreign state, including a person
have been used twice in Canada since becom- employed by a board, commission, corpora-
ing available. Previously they had been a source tion or other body or authority that is estab-
of considerable controversy in the first instance lished to perform a duty or function on behalf
where such an agreement had been sought. Most of the foreign state, or is performing such a
recently, Canadian construction and engineering duty or function; and
giant SNC-Lavalin Group Inc has been involved • an official or agent of a public international
in two cases in which remediation agreements organisation that is formed by two or more
have been considered (they are discussed in 7.6 states or governments, or by two or more
Recent Landmark Investigations or Decisions such public international organisations.
Involving Bribery or Corruption).
The CFPOA offence of bribing a foreign pub-
lic official is a full mens rea offence (explained
2. Classification and Constituent below) where Crown prosecutors need to prove
Elements guilt beyond a reasonable doubt.
2.1 Bribery Bribery of Domestic Public Officials

Bribery of Foreign Public Officials The Criminal Code contains a number of bribery
Section 3(1) of the CFPOA makes it an offence and corruption offences related to government
for anyone activity, including bribery of judicial officers (Sec-
tion 119), bribery of officers, such as police and
“who, in order to obtain or retain an advantage persons employed in the administration of justice
in the course of business, directly or indirectly (Section 120), frauds on the government (Section
gives, offers or agrees to give or offer a loan, 121), breach of trust by a public officer (Section
reward, advantage or benefit of any kind to a 122), municipal corruption (Section 123), selling
foreign public official or to any person for the or purchasing public office (Section 124), and
benefit of a foreign public official: (a) as consid- influencing or negotiating appointments or deal-
eration for an act or omission by the official in ing in offices (Section 125). The Criminal Code
connection with the performance of the official’s also contains more general offences of fraud
duties or functions; or (b) to induce the official (Section 380) and secret commissions (Section
to use his or her position to influence any acts 426), which apply to activities between private-
or decision of the foreign state or public interna- sector parties, in addition to conduct involving
tional organisation for which the official performs public officials.
duties or functions.”
Each of the above-noted Criminal Code offenc-
Definition of a Foreign Public Official es has different constituent elements; however,
Foreign public officials are defined in Section 2 generally speaking, the Criminal Code provi-
of the CFPOA as follows: sions that address bribery and corruption in the
public sphere (Sections 119–125) contain simi-
55 CHAMBERS.COM
larly broad language to that of Section 3(1) of act by the recipient of the bribe in their official
the CFPOA. As a result, if the conduct involves capacity. Bribery of officers (Section 120), which
a public official and is: includes police officers and persons employed
in the administration of justice, does not have
• direct or indirect; the same requirement; an offence may be com-
• includes a loan, reward, commission, money, mitted as long as there is intent to interfere with
valuable consideration, office, or employ- justice.
ment, or other advantage or benefit which:
(a) is given, offered, agreed, demanded, ac- The Criminal Code provisions referenced above
cepted, obtained; and are full mens rea offences. They require proof
(b) relates to an official, an official’s family, or of conscious intent – namely, that the accused
to anyone for the benefit of an official; set out deliberately to commit the prohibited act
while having subjective knowledge of the cir-
it is likely to be captured by one or more offenc- cumstances. In short, the offeror of a bribe must
es. be aware that they are giving or offering to give
a bribe to a person who is receiving the bribe
The definitions of “office” and “official” in the because of their position and with the intention
Criminal Code (Section 118) are broad. They of influencing the recipient’s conduct. Similarly,
include any office or appointment in the gov- the recipient must have subjective knowledge
ernment, a civil or military commission, a posi- and intention when accepting or offering to
tion or any employment in a public department, accept a bribe in order to possess the neces-
or anyone appointed or elected to discharge a sary mens rea for the commission of an offence.
public duty.
Bribery in a Commercial/Other Setting
For the offences of bribery of judicial officers In both the private and public spheres, it is an
(Section 119) and bribery of officers (Section offence under the Criminal Code, directly or indi-
120), it is an element of both offences that the rectly, corruptly to give, offer or agree to give or
offering, accepting, or soliciting of a bribe must offer to an agent or to anyone for the benefit of
be done “corruptly”. There is no definition of the the agent, any reward, advantage, or benefit of
meaning of “corruptly” in these offences in the any kind as consideration for doing or not doing,
Criminal Code. However, Canadian courts have or for having done or not done, any act relating
held that the term in this context has the same to the affairs or business of the agent’s principal,
meaning as in the offence of secret commissions or for showing or not showing favour or disfa-
(Section 426). It refers to an act done mala fide, vour to any person in relation to the affairs or
not bona fide, and designed, wholly or partially, business of the agent’s principal (Section 426).
for the purpose of bringing about the effect for- It is also an offence (under the same section)
bidden by the offence (see, eg, R v Brown [1956] for anyone who is an agent to receive a secret
OR 944, 116 CCC 287 at paras 20–21). commission by demanding, accepting, offering
or agreeing to accept any reward, advantage,
Bribery of judicial officers (Section 119), which or benefit of any kind in exchange for an act
includes judges and members of Parliament and described above.
provincial legislatures, must be connected to an
56 CHAMBERS.COM
To qualify as an offence: limit the scope of these terms by evaluating on

a case-by-case basis whether a benefit, reward,
• an agency relationship must have existed; advantage or valuable consideration confers a
• the agent must have received the benefit; “material economic advantage”. This determina-
• the benefit must have been provided as con- tion requires an examination of the relationship
sideration for an act to be done or not done in between the parties and the scope of the benefit.
relation to the principal’s affairs; The closer the relationship between the parties
• the agent must have failed to make adequate (ie, family members or good friends versus busi-
and timely disclosure of the benefit; and ness/professional contacts or mere acquaint-
• the accused must have been aware of the ances), and the smaller the benefit, the less likely
agency relationship and knowingly provided it is that a benefit would satisfy the constituent
the benefit as consideration for an act to be elements of the Criminal Code offences. Ulti-
done or not done in relation to the principal’s mately, it is a question of fact for a judge or jury
affairs. to determine based on all the evidence of a given
case (R v Hinchey [1996] 3 SCR 1128, 147 Nfld
There is no general definition of bribery under & PEIR 1, at paras 40–70).
Canadian law. As noted above, there are simi-
larities between sections of the Criminal Code The CFPOA only criminalises the supply side of
and Section 3 of the CFPOA, which generally corruption (ie, the offering of bribes). In contrast,
capture the direct or indirect offer or acceptance under the Criminal Code, it is also an offence to
of a benefit by a public official or private party, in “accept” or “receive” a bribe (Sections 119, 120,
exchange for the recipient of the benefit doing 121, 123, 124, 125 and 426).
or not doing something in their official capac-
ity, or related to the affairs or business of their The foregoing offences do not depend upon the
principal. consideration of whether the intended advan-
tage or outcome for which a bribe was offered or
The Criminal Code does not define the mean- accepted actually occurs. The fact that a bribe is
ing of “benefit”, “reward”, “advantage” or “valu- offered or accepted can give rise to an offence.
able consideration”. Certain other terms used in
the offences describe specific benefits that are Hospitality, Gifts and Promotional
more easily defined and understood (eg, com- Expenditures
mission, money, loan, and employment) or that The CFPOA exempts certain hospitality expen-
are defined in the Criminal Code (eg, office). ditures, gifts and promotional expenditures that
are referenced in a saving provision (Section
Decisions by the Supreme Court of Canada have 3(3)). Lawful gifts typically include items of nomi-
noted the extremely broad scope of the terms nal value (eg, reasonable meals and entertain-
“benefit”, “advantage”, etc, and that they can ment expenses proportionate to norms for the
include non-criminal conduct, such as the giv- industry, cab fare, company promotional items,
ing or receipt of certain gifts or trivial favours etc) and reasonable travel and accommodation
(eg, the purchase of a cup of coffee or lunch, or to allow foreign public officials to inspect distant
offering someone a ride when they are caught company facilities or receive required training.
in the rain). As a result, the court has sought to
57 CHAMBERS.COM
The CFPOA historically contained an exception Unlike under the United Kingdom’s Bribery Act,
for facilitation payments made to foreign offi- failure to prevent bribery is not an offence under
cials. On 31 October 2017, this exception was Canadian law.
repealed. As a result, facilitation payments can
give rise to an offence under Section 3(1) of the Definition of Public Officials
CFPOA (as they can under the United Kingdom’s As previously noted, the CFPOA defines a for-
Bribery Act). eign public official in Section 2 as follows:
There are no de minimis or other exceptions • a person who holds a legislative, administra-
for the offences in the Criminal Code. However, tive or judicial position in a foreign state;
Canada’s federal and provincial governments • a person who performs public duties or func-
provide guidance on the acceptable provision tions for a foreign state, including a person
of gifts, hospitality and other expenses to certain employed by a board, commission, corpora-
public officials. For example, the federal Policy tion or other body or authority that is estab-
on Conflict of Interest and Post-Employment per- lished to perform a duty or function on behalf
mits public servants to accept “gifts, hospitality of the foreign state, or is performing such a
and other benefits […] if they are infrequent and duty or function; and
of minimal value, within the normal standards • an official or agent of a public international
of courtesy or protocol, arise out of activities or organisation that is formed by two or more
events related to the official duties of the public states or governments, or by two or more
servant concerned, and do not compromise or such public international organisations.
appear to compromise the integrity of the pub-
lic servant concerned or of his or her organisa- The second branch of this definition covers
tion” (Appendix B, Requirement 2.3). Similarly, many types of government agencies and state-
the Ontario conflict of interest rules permit pub- owned enterprises.
lic servants to accept “a gift of nominal value
given as an expression of courtesy or hospitality For the purposes of the Criminal Code offences
if doing so is reasonable in the circumstances” that criminalise bribery and corruption in the
(Ontario Regulation 382/07, Section 4(2)). public sphere (Sections 119–125), the definitions
of “office” and “official” in the Criminal Code
In assessing whether a gift is a benefit or advan- (Section 118) broadly include anyone holding
tage constituting a secret commission, factors any office or appointment under the govern-
of significance include the nature of the gift, the ment, a civil or military commission, a position
prior relationship, if any, between the giver and or any employment in a public department, or
the recipient, the manner in which the gift was appointed or elected to discharge a public duty.
made, the agent’s/employee’s function with their Employees of Crown corporations (state-owned
principal/employer, the nature of the giver’s deal- enterprises in Canada) or arm’s-length federal
ings with the recipient’s principal/employer, the business enterprises are not explicitly captured
connection, if any, between the recipient’s job by the definition of “office” or “official”. How-
and the giver’s dealing, and the state of mind of ever, they may be considered public officials if
the giver and the receiver (see, eg, R v Green- the nature of their position and employment fits
wood, 5 OR (3d) 71). within the definitions in the Criminal Code.
58 CHAMBERS.COM
Bribery Between Private Parties in a or risk of prejudice to the economic interests of

Commercial/Other Setting the victim is established (R v Olan [1978] 2 SCR
As previously noted, bribery of foreign public 1175, at para 13).
officials is an indictable criminal offence under
Section 3 of the CFPOA. 2.2 Influence-Peddling
The CFPOA does not criminalise influence-ped-
The CFPOA does not apply to bribery involving dling.
private parties in commercial settings.
Rather, Section 121 of the Criminal Code estab-
Bribery between private parties in a commercial lishes a number of offences involving frauds on
setting is captured by the secret commissions the government. Section 121(1)(a) specifically
offence in the Criminal Code (Section 426) as criminalises influence-peddling. The wording of
mentioned above. The general fraud offence the provision captures both the person supply-
in the Criminal Code also covers bribery in the ing or offering a bribe and the public official – as
private sphere: it is an offence for anyone to well as the official’s family members or anyone
defraud the public or any person, whether ascer- for the benefit of the official – receiving or offer-
tained or not, of any property, money, valuable ing to accept a bribe. Whether the official can
security, or service, by deceit, falsehood or other actually provide the outcome sought in the cir-
fraudulent means (Section 380). The Supreme cumstances is irrelevant.
Court of Canada has determined that “other
fraudulent means” is a term encompassing all 2.3 Financial Record-Keeping
other means which can properly be stigmatised The CFPOA includes an offence related to
as dishonest (R v Riesberry, 2015 SCC 65, at record-keeping. Section 4 of the Act criminal-
para 23). The two essential elements that must ises the hiding of payments, the falsification or
be established in a successful prosecution by destruction of records, and the knowing use of
the Crown are “dishonesty” and “deprivation” (R false documents for the purpose of either bribing
v Olan [1978] 2 SCR 1175, at para 13). Dishon- a foreign public official or hiding the bribery of a
est conduct involves the wrongful use of some- foreign public official.
thing in which another person has an interest
and has the effect, or risk, of depriving the other The Criminal Code contains an offence that
person of what is theirs. The use is wrongful if criminalises the destruction or falsification of
it is conduct that a reasonable decent person books and documents with the intent to defraud
would consider dishonest and unscrupulous (R (Section 397(1)) and there are general offences
v Zlatic [1993] 2 SCR 29). When the conduct is of forgery and using a false document (Sec-
based on “other fraudulent means”, dishonesty tions 366–368), but there is no financial record-
is to be measured against the objective stand- keeping offence specific to bribery or corruption
ard of what a reasonable person would consid- in the Criminal Code. The secret commissions
er being dishonest without regard for what the offence in the Criminal Code also contains
accused actually knew (R v Wolsey (2008), 233 a narrower offence covering the provision of
CCC (3d) 205 (BCCA)). Actual economic loss “a receipt, an account, or other writing” to an
is not required for there to be deprivation. This agent, or the agent’s use of such a record, with
element is satisfied when detriment, prejudice the intent of deceiving the agent’s principal (see
59 CHAMBERS.COM
Section 426(1)(b)). The Income Tax Act and cor- ponent of the offence of breach of trust by
porate statutes such as the Canada Business public officer.
Corporations Act also contain provisions related
to record-keeping. Public officials who abuse their position could
also be charged with the offence of frauds on
2.4 Public Officials the government under Section 121(1)(d) of the
The CFPOA only criminalises the supply side of Criminal Code. This provision applies if the pub-
corruption. The Act does not create any offenc- lic official purports to have influence with the
es, or impose specific obligations, on public government, a minister of the government, or an
officials. official, and accepts a bribe as consideration for
co-operating, assisting, exercising influence, or
Public officials in Canada are held to a high an act or omission in connection with business
standard in the exercise of their duties. At all lev- transactions with or relating to the government,
els of government (federal, provincial/territorial, claims against the government or benefits the
and municipal) public officials are governed by government is authorised or entitled to bestow,
codes of conduct and conflict of interest rules. or the appointment of a person, including the
public official themselves, to an office. In addi-
When public officials abuse or take advantage of tion, a public official who misappropriates public
their position in a manner that amounts to fraud funds could be charged with theft under Section
or a breach of trust, they can be charged under 330 of the Criminal Code.
Section 122 of the Criminal Code with breach of
trust by a public officer. In a 2006 decision, the 2.5 Intermediaries
Supreme Court of Canada clarified the constitu- Section 3 of the CFPOA and many of the Crimi-
ent elements of this offence as follows: nal Code provisions noted above establish
offences which may be committed directly by the
• the accused was an official (as defined in accused, or indirectly by the accused through
Section 118 of the Criminal Code); an intermediary. The use of an intermediary will
• the accused was acting in connection with generally not shield a company or individual from
the duties of their office; criminal liability.
• the accused breached the standard of
responsibility and conduct demanded of them An intermediary may be charged as a party to the
by the nature of the office; offence committed by another person if they aid
• the conduct of the accused represented or abet the commission of an offence (Section
a serious and marked departure from the 21 of the Criminal Code). An intermediary could
standards expected of an individual in the also be charged with conspiracy to commit an
accused’s position of public trust; and offence, which is a separate offence under Sec-
• the accused acted with the intention to use tion 465(1)(c) of the Criminal Code.
their public office for a purpose other than
the public good (for example, for a dishon- There are also offences for counselling another
est, partial, corrupt or oppressive purpose) (R person to commit an offence (Criminal Code
v Boulanger, 2006 SCC 32, at para 58). This Sections 22 and 464). Counselling has been
fifth element constitutes the mens rea com- interpreted to mean, “procure, solicit, or incite”
60 CHAMBERS.COM
another person to be a party to an offence. In and substantial link to Canada). However, the
certain situations, such offences could apply to 2013 amendments added a broader nationality
the intermediary or the party enlisting the inter- basis of jurisdiction. Section 5(1) of the CFPOA
mediary. specifically provides that Canadian citizens, per-
manent residents and corporations that commit
the offence of bribing a foreign public official,
3. Scope or breaching the accounting provision, outside
Canada (or who commit the offence of conspir-
3.1 Limitation Period ing or attempting to commit these offences, the
Under Canadian law, there is no statute of limi- offence of being an accessory to these offences
tations for indictable offences. Proceedings in after the fact, or the offence of counselling in
relation to summary offences (or hybrid offences relation to these offences) are deemed to have
where the prosecution elects to proceed by way committed the offence in Canada. Courts have
of summary conviction) must generally be insti- since confirmed the application of a broader
tuted within six months of the offence (Section nationality basis to jurisdiction (R v Karigar, 2017
786(2) of the Criminal Code). All of the bribery ONCA 576, at paras 27–28).
and corruption offences under the CFPOA and
the Criminal Code discussed in this chapter are 3.3 Corporate Liability
indictable offences only, except for the general There is corporate as well as individual liability
offence of fraud under Section 380 of the Crimi- for bribery and corruption offences under Cana-
nal Code, which is a hybrid offence. Fraud under dian law. The specific offences created by the
CAD5,000 can be prosecuted by way of sum- CFPOA can be committed by any “person” as
mary conviction. defined in Section 2 of the Criminal Code, as
can the Criminal Code offences. The definition
3.2 Geographical Reach of Applicable of “person” includes “organisations”, which in
Legislation turn is defined to encompass various types of
The default territorial principle underlying Can- entities including corporations.
ada’s criminal law (which is codified in Section
6(2) of the Criminal Code) is that no one can Section 22.2 of the Criminal Code extends crimi-
be convicted of an offence committed outside nal liability to a corporation (or other organisa-
Canada unless otherwise explicitly specified by tion) when a “senior officer”:
Parliament. However, “all that is necessary to
make an offence subject to the jurisdiction of • acting within the scope of their authority is a
the Canadian courts is that a significant portion party to an offence;
of the activities constituting that offence took • having the mental state required to be a party
place in Canada” (ie, that there is a “real and to an offence and acting within the scope of
substantial connection” to Canada) (R v Libman their authority, directs the work of other repre-
[1985] 2 SCR 178, at para 74). sentatives of the organisation so that they do
the act or make the omission specified in the
The CFPOA originally was based only on territo- offence; or
rial jurisdiction (ie, offences where the conduct • knowing that a representative of the organisa-
occurred in Canada or where there was a real tion is or is about to be a party to an offence,
61 CHAMBERS.COM
does not take all reasonable measures to may contest any required element of the con-
stop them from being a party to the offence. duct covered by each offence (ie, actus reus): for
example, contesting whether the alleged benefit
A senior officer is not only one of the directing does, in fact, confer a material economic advan-
minds of the corporation, but is defined to include tage.
a representative who plays an important role in
the establishment of an organisation’s policies or 4.2 Exceptions
is responsible for managing an important aspect The CFPOA contains exceptions to the offence
of the organisation’s activities. In the case of a of bribing a foreign public official as follows:
corporation, senior officers include directors,
the chief executive officer and the chief financial • where the benefit given is either permitted
officer (Section 2 of the Criminal Code). In addi- or required under the laws of the applicable
tion, courts have interpreted mid-level employ- foreign state or foreign public international
ees with significant managerial responsibility to organisation; or
meet this definition (see R v Pétroles Global Inc, • where payment was made to reimburse rea-
2015 QCCS 1618). sonable expenses incurred in the promotion
or demonstration of the person’s products
Whether the acquirer of a business can be held and services or the execution or performance
liable for pre-acquisition conduct of a corpo- of a contract between a person and the for-
ration depends upon the manner in which the eign state.
transaction is structured. In share acquisitions
and amalgamations, the potential liabilities con- None of the Criminal Code bribery or corruption
tinue to exist in the corporation. However, in an offences contains any exceptions.
asset acquisition, it will be necessary to assess
the contract between the parties to determine 4.3 De Minimis Exceptions
whether such potential liabilities were assumed Since the repeal of the facilitation payments
by the purchaser or retained by the vendor. exception, there are no de minimis exceptions
under Canadian law for any of the CFPOA offenc-
es. However, as previously discussed, there are
4. Defences and Exceptions certain exceptions under the CFPOA. The Crimi-
nal Code bribery and corruption offences also
4.1 Defences do not contain formal de minimis exceptions.
The CFPOA and Criminal Code offences dis-
cussed in previous sections all require a mental 4.4 Exempt Sectors/Industries
element of knowledge and intent (and certain Canada’s laws do not exempt any sectors or
offences require “corrupt” intent). As such, a industries from the CFPOA or the Criminal Code
number of defences recognised at common law bribery and corruption offences.
and in the Criminal Code are available for these
offences (for example, defences that negate 4.5 Safe Harbour or Amnesty Programme
proof of the prohibited act, such as duress, or No formal safe harbour, amnesty or other self-
that negate the proof of the mental element, reporting programmes have been established for
such as mistake of fact). In addition, defendants bribery or corruption offences by the authorities
62 CHAMBERS.COM
that enforce Canada’s anti-corruption laws (see fine to be imposed on corporations and individu-
5. Penalties). als in an amount at the discretion of the court.
Self-reporting, co-operation with an investiga- In addition, corporations convicted of a CFPOA

tion and compliance or remediation efforts are offence or certain Criminal Code offences face
all potential “mitigating factors” which may be debarment from bidding on public sector pro-
considered in the negotiation of a plea agree- jects.
ment with prosecutors, or by a court during
the sentencing process. For example, Griffiths The Canadian Government’s Integrity Regime
Energy International self-reported a bribe to the debars individuals and corporations from con-
RCMP that led to a plea to bribery under the tracting or subcontracting with federal govern-
CFPOA. The CAD10.4 million fine imposed by ment departments and agencies after being
the court reflected the company’s self-reporting convicted of CFPOA offences or certain Criminal
and co-operation, including the significant sum Code offences. The debarment period can range
of money saved by not having to investigate the from ten years (with a possible reduction of ineli-
matter and hold a full-blown trial (see R v Grif- gibility of up to five years) for convictions under
fiths Energy International [2013] AJ No 412, at the CFPOA and Sections 119, 120 and 426 of
paras 15–18, 21). the Criminal Code, to an open-ended period of
time for convictions under Sections 121, 124
As noted, Canada also recently enacted a and 380 of the Criminal Code.
Remediation Agreements regime under Part
XXII.1 of the Criminal Code. It allows prosecutors Various provincial and municipal governments in
and parties involved in corruption and various Canada have procurement regimes or codes of
other types of offences to negotiate resolutions conduct that include debarment rules. Convic-
which do not include a criminal conviction. Self- tions under the CFPOA or Criminal Code bribery
reporting is a significant factor in the exercise of and corruption offences will generally be prob-
prosecutorial discretion for such resolutions (see lematic under such regimes or codes.
5. Penalties).
CFPOA and the Criminal Code bribery and cor-
ruption offences may also have consequences
5. Penalties for firms’ activities abroad. For example, debar-
ment may arise on projects financed by the
5.1 Penalties on Conviction World Bank Group pursuant to the Bank’s fraud
The maximum penalties under Canada’s brib- and corruption policies, and cross-debarment
ery and corruption laws are very significant. by other multilateral development banks pursu-
The CFPOA offences and the offences of brib- ant to the Agreement for Mutual Enforcement of
ery of judicial officers, bribery of officers and Debarment Decisions.
fraud under the Criminal Code can be punished
by jail terms of up to 14 years for individuals. 5.2 Guidelines Applicable to the
Other Criminal Code offences discussed herein Assessment of Penalties
are subject to jail terms of up to five years. The The general principles and guidelines for sen-
CFPOA and the Criminal Code also provide for a tencing both corporations and individuals in
63 CHAMBERS.COM
the Criminal Code (Part XXIII, especially Sec- 6. Compliance and Disclosure
tions 718, 718.1, 718.2, 718.21, and 718.3) are
applicable to the CFPOA as well as the Criminal 6.1 National Legislation and Duties to
Code bribery and corruption offences. Generally, Prevent Corruption
there is no minimum or maximum fine for indict- The CFPOA and the Criminal Code do not
able offences. Maximum terms of imprisonment impose on individuals or corporations any com-
are established by statute (see 5.1 Penalties on pliance programme or other obligations to pre-
Conviction), but there are no minimums except vent corruption. As previously noted, failure to
for Section 380(1.1), which provides for a mini- prevent bribery is not an offence under Canadian
mum of two years’ imprisonment when the fraud law.
is over CAD1 million.
Nevertheless, well-managed companies in
In determining an appropriate sentence, the Canada will undertake risk assessments and
court will consider a number of factors, including implement compliance programmes to attempt
the gravity of the offence, any advantage realised to prevent the serious consequences that may
by the corporation or individual by committing arise from bribery or corruption. Under the Crimi-
the offence, the degree of planning, duration and nal Code, measures taken to reduce the likeli-
complexity of the offence, and whether there are hood of committing a subsequent offence are to
other penalties being imposed, or related con- be considered as a mitigating factor in sentenc-
sequences. ing a corporation (Section 718.21(j)).
In accordance with the principles of sentencing, 6.2 Regulation of Lobbying Activities

repetition of an offence after a previous convic- Canadian governments at all levels (federal, pro-
tion generally results in the imposition of a more vincial/territorial, and municipal) have broadly
significant sentence than the sentence previ- similar rules governing the lobbying of public
ously received (R v Wright (2010), 261 CCC (3d) officials.
333 (Man CA)).
Defining Lobbying
An offender who pleads guilty may present a While there are important distinctions between
joint recommendation with the Crown for an jurisdictions, at its core, Canadian lobbying law
appropriate sentence (otherwise known as a is about transparently capturing communica-
plea bargain). The sentencing judge is gener- tion with public officials with a view to influenc-
ally bound to accept the joint recommendation ing their decision-making process in specific
unless they decide that it brings the administra- areas. All sectors are concerned, as lobbying
tion of justice into disrepute or is contrary to the laws focus on the nature, content and purpose
public interest (R v Anthony-Cook, 2016 SCC 43, of communications to a public official, not the
at para 32). Instances where a sentence judge sector.
does not accept a joint recommendation are
exceedingly rare. Communication can take numerous forms; it
can be written or verbal, and in some cases can
include a campaign to encourage interested
members of the public to lobby (called “grass-
64 CHAMBERS.COM
roots lobbying”). Some definitions of lobbying • oral or written submissions that are a matter
specifically list what is included in the term of public record made to a government body/
“communication”. legislative assembly or committee;
• oral or written communications concerning
Examples of areas in which communication with the enforcement, interpretation or application
public officials could constitute lobbying are of any act or regulation by the government or
communications in respect of: a government entity;
• oral or written communications concerning
• the development of any legislative proposal the implementation or administration of any
by the government in question; programme, policy, directive or guideline by
• the introduction, passage, defeat or amend- the government or a government entity; and
ment of a bill or resolution; • oral or written communications in response to
• the making or amendment of a regulation; a request initiated by a public office holder for
• the development, establishment, amendment advice or comment on a matter.
or termination of any programme, policy,
directive or guideline of the government in To determine whether a specific act or commu-
question, or of a government entity, such as a nication is excluded from the definition of lob-
Crown corporation; bying, the relevant legislation of the jurisdiction
• the granting of a financial benefit or contract must be considered.
by or on behalf of the government in ques-
tion or a government entity, such as a Crown Types of Lobbyists
corporation; Individuals, corporations and not-for-profit
• a decision to transfer from the Crown for organisations can all lobby the government.
consideration all or part of, or any interest in The relationship between the lobbyist and the
or asset of, any business, enterprise or insti- entity that is ultimately responsible for the lob-
tution that provides goods or services to the bying activity will determine how some of the
Crown, a public entity or the public; rules apply. Note that the applicable categories
• a decision to have the private sector instead of lobbyists vary between jurisdictions.
of the Crown provide goods or services to the
government or a public entity; and In-house/organisation/enterprise lobbyists
• arranging a meeting between a public office In-house, organisation or enterprise lobbyists
holder and any other individual for the pur- (“in-house lobbyists”) are salaried employees of
poses of attempting to influence any of the for-profit corporations or not-for-profit organisa-
matters captured by the definition of lobby- tions who lobby on behalf of their employer. In
ing. certain jurisdictions, paid directors are also con-
sidered to be in-house lobbyists. Importantly, a
Exclusions full-time effort to lobby is not required in order
Not all forms of communication with public offi- for the rules to apply.
cials constitute lobbying. Common exclusions
from the definition of lobbying (ie, non-reportable Consultant lobbyists
communications with public officials) include: Consultant lobbyists are individuals (often law-
yers, accountants, or government relations/pub-
65 CHAMBERS.COM
lic affairs specialists) who are paid to lobby on to file a disclosure statement, filing a false or
behalf of a client. This can include independent misleading statement, and structuring payments
contractors who are not employees. to avoid triggering reporting requirements, are all
offences under this legislation, which are punish-
Registration Requirements for Lobbyists able on summary conviction by fines of up to
The core of all lobbying legislation is the require- CAD250,000.
ment to register. The relevant legislation will out-
line when registration is required, what informa- 6.4 Protection Afforded to Whistle-
tion must be disclosed, and who must register. In Blowers
some jurisdictions, in-house lobbyists are sub- There are limited protections for whistle-blow-
ject to a minimum threshold of lobbying activity ers under Canadian law. Section 425.1(1) of the
before registration requirements apply to them. Criminal Code and certain other specific legisla-
When registration and reporting is required, the tion (such as the federal Public Servants Disclo-
information that must be disclosed, and who sure Protection Act and Competition Act, and
must register, varies according to the type of the Public Service of Ontario Act, 2006) prevent
lobbyist. employers from threatening or taking retalia-
tory action to deter or punish whistle-blowing
6.3 Disclosure of Violations of Anti- employees.
bribery and Anti-corruption Provisions
Under Canadian law, no person has an obliga- 6.5 Incentives for Whistle-Blowers
tion to report an offence or assist the police vol- The Ontario Securities Commission (OSC) and
untarily in their investigation. the Canada Revenue Agency (CRA) operate
whistle-blower programmes that provide finan-
The CFPOA and the Criminal Code do not con- cial incentives to whistle-blowers under certain
tain any self-reporting requirements. However, conditions. However, Canadian securities com-
under the new remediation agreement regime, missions and taxation authorities do not have
whether a corporation self-reported is a factor enforcement powers for Canada’s bribery or cor-
for the prosecutor to consider in determining ruption offences.
whether negotiation of a remediation agreement
is in the public interest and appropriate in the cir- 6.6 Location of Relevant Provisions
cumstances. As previously noted, self-reporting Regarding Whistle-Blowing
and co-operation with an investigation are also Provisions regarding whistle-blowing can be
factors under general sentencing principles. found in Section 425.1(1) of the Criminal Code
and certain other specific legislation (such as
As of June 2015, the Extractive Sector Transpar- the federal Public Servants Disclosure Protec-
ency Measures Act requires that Canadian cor- tion Act and the Competition Act, and the Public
porations operating in the extractive sector meet Service of Ontario Act, 2006).
certain threshold conditions to disclose publicly,
on a yearly basis, specific payments made to all
governments in Canada and abroad. The pur-
pose of the Act is to enhance transparency and
deter corruption in the extractive sector. Failure
66 CHAMBERS.COM
7. Enforcement tion of guilty pleas (which are subject to court

approval) or remediation agreements.
7.1 Enforcement of Anti-bribery and Anti-
corruption Laws Prosecutors and police authorities often work
There is exclusively criminal enforcement of together to ensure investigations are complete
anti-bribery and anti-corruption laws in Cana- before charges are laid, so that prosecutors
da. There are no civil or administrative enforce- can bring cases to trial promptly. In Canada, an
ment bodies with responsibility for the CFPOA accused person has the right to be tried within
or offences under the Criminal Code. a reasonable period. In R v Jordan (2016 SCC
27), the Supreme Court of Canada established
7.2 Enforcement Body that this means a presumptive ceiling beyond
Canada’s national police force, the Royal Cana- which delay – from the charge to the actual
dian Mounted Police (RCMP), has sole author- or anticipated end of trial – is presumed to be
ity for enforcing the CFPOA. The RCMP also unreasonable. In the absence of exceptional
enforces the Criminal Code and assists other circumstances, the presumptive ceiling is 18
police forces with investigations, typically when months for cases tried in provincial courts and
enforcement efforts are national, trans-provincial 30 months for cases tried in superior courts.
or transnational in scope. The RCMP’s jurisdic-
tional powers are set out in the Royal Canadian 7.3 Process of Application for
Mounted Police Act. Documentation
Enforcement authorities’ powers to gather evi-
At the provincial level, major municipal or pro- dence using search warrants, production orders
vincial police services enforce the Criminal Code (subpoenas) and wire-tapping generally require
corruption and bribery provisions. advance authorisation by the courts (see, eg,
Criminal Code Sections 185, 487, 487.014).
Police authorities have broad powers of search, Production orders can only be used to compel
seizure, information-gathering (eg, by produc- records from persons who are not under inves-
tion orders or by wire-tapping) and arrest, which tigation.
are codified in the Criminal Code and are subject
to judicial oversight. 7.4 Discretion for Mitigation
Amendments to the Criminal Code in 2018 cre-
Prosecutions of CFPOA offences and Criminal ated the option of entering into a remediation
Code offences investigated by the RCMP are agreement (essentially a deferred prosecution
handled by the PPSC. The “Crown Attorney” agreement). This type of resolution, available
(prosecutor) offices within provincial ministries only for companies and not individuals, is likely
of attorneys general are generally responsible to be used for some cases under the CFPOA
for the prosecution of Criminal Code offences at and for Criminal Code bribery and corruption
the provincial level. Prosecutors review evidence offences where it may be appropriate to avoid
referred to them by police authorities and take the severity of criminal convictions and automat-
independent decisions regarding the laying of ic debarment consequences under applicable
charges, conduct of prosecutions, and negotia- government procurement regimes.
67 CHAMBERS.COM
Prosecutors have full discretion to initiate and 7.6 Recent Landmark Investigations or
conduct a prosecution and to negotiate remedi- Decisions involving Bribery or Corruption
ation agreements or guilty pleas (which are sub- Canadian construction and engineering giant
ject to approval by the court). Even if there is a SNC-Lavalin Group Inc has faced multiple sets
reasonable prospect of conviction, prosecutors of bribery charges in recent years. The company
can, at their sole discretion, refuse to conduct a was first charged with criminal fraud under Sec-
prosecution or stop the proceedings if a pros- tion 380(1)(a) of the Criminal Code and bribery
ecution would not best serve the public interest. contrary to Section 3(1)(b) of the CFPOA in Feb-
ruary 2015, in connection with millions of dollars
7.5 Jurisdictional Reach of the Body/ of alleged bribes for public officials in Libya.
Bodies
The scope of territorial and nationality-based SNC-Lavalin was not invited to negotiate a
jurisdiction under the CFPOA and applicable remediation agreement and, in May 2019, a
Criminal Code provisions is discussed in previ- judge of the Court of Quebec ruled at a prelimi-
ous sections. However, Canadian courts cannot nary inquiry that there was enough evidence to
exercise personal jurisdiction over individuals or send SNC-Lavalin to trial. In December 2019, the
corporations unless they are properly charged construction division of the company pleaded
and brought before the court in Canada. The guilty to the charge of criminal fraud and nego-
RCMP does not have any formal powers to take tiated a penalty of a CAD280 million fine (to be
enforcement action outside Canada. paid over five years) and a three-year probation
order. All charges against the parent company
The RCMP may co-operate with foreign policing and its international unit, and the charges under
agencies, as well as international organisations the CFPOA, were withdrawn as part of the guilty
such as the World Bank, in the investigation and plea and fine, which was approved by the court.
enforcement of the CFPOA and the Criminal
Code outside Canada. For example, Canada has In January 2020, Sami Bebawi, an SNC-Lavalin
mutual legal-assistance treaties with numerous executive, was sentenced to eight and a half
countries that facilitate cross-border criminal years’ imprisonment for fraud, corruption of
investigations. These treaties are implemented foreign officials and laundering the proceeds of
pursuant to the Mutual Legal Assistance in Crim- crime in connection with the company’s conduct
inal Matters Act. in Libya. Mr Bebawi was also fined CAD24.6 mil-
lion in lieu of the seizure of additional proceeds
Canada also has extradition treaties with numer- of crime. Failure to pay the fine within six months
ous countries (under the Extradition Act). Such would result in Mr Bebawi serving an additional
treaties allow Canada to seek the extradition of ten-year prison sentence. The convictions and
Canadian citizens or foreigners for purposes of sentence are currently under appeal.
prosecution of offences under Canadian laws,
including the CFPOA and the Criminal Code, in SNC-Lavalin was charged along with two for-
certain circumstances. mer executives in September 2021 with fraud
against the government under Section 121 of the
Criminal Code, and fraud under Section 380 of
the Criminal Code, among other offences. The
68 CHAMBERS.COM
charges involve allegations of bribes paid in con- ecution agreement sanctioned since the new
nection with a 2002 contract to refurbish Mon- legal mechanism became law in 2018 and the
treal’s Jacques Cartier Bridge. Unlike the previ- first handled by the federal prosecution service.
ous case, SNC-Lavalin was invited to negotiate
a remediation agreement. Between 2011 and 2015, the Commission of
Inquiry on the Awarding and Management of
In May 2022, Quebec prosecutors and SNC- Public Contracts in the Construction Industry
Lavalin received court approval of Canada’s first (the Charbonneau Commission) investigated
remediation agreement that will have SNC-Lava- and reported on widespread corruption and col-
lin pay close to CAD30 million and includes other lusion in the awarding and management of pub-
terms lasting three years. The payment amount lic construction contracts in Quebec. The final
will be allocated as follows: report made 60 recommendations to address
the problems exposed during the inquiry. More
• CAD 1,135,135 paid as a penalty; than 300 people and companies have been
• CAD 2,490,721 confiscated as proceeds of charged since 2011 by Quebec’s anti-corruption
crime; police force, Unité permanente anti-corruption
• CAD 3,492,380 paid as compensation to the (UPAC). In September 2020, the Court of Que-
victim; and bec ordered a stay of proceedings against Nath-
• CAD 5,440,541 paid as victim surcharge. alie Normandeau, a former cabinet minister in
Quebec, on corruption-related charges inves-
An independent monitor will monitor the com- tigated by the UPAC because the prosecution
pany for compliance with the agreement. The took too long. As previously noted, the Supreme
charges will be withdrawn if the conditions of Court of Canada’s 2016 decision in R v Jordan
the agreement have been met at the end of the established presumptive time limits between the
three-year term. laying of charges and the completion of a trial.
Normandeau had been charged in March 2016
Ultra Electronics Forensic Technology and four with fraud, corruption, conspiracy, breach of
of its executives were charged in September trust and fraud against the government in rela-
2022 under the CFPOA and the Criminal Code. tion to a contract award for a water-treatment
The charges were laid after an investigation by plant.
the RCMP’s sensitive and international investi-
gations section that began in 2018. The RCMP In September 2020, Ontario’s Serious Fraud
alleges that the corporation and the accused Office (SFO), a team of investigators and pros-
individuals “directed local agents in the Philip- ecutors dedicated to complex financial crimes,
pines to bribe foreign public officials to influence undertook what appears to be its first enforce-
and expedite” a multimillion-dollar contract. The ment activity since the SFO was established
company indicated that it entered into a reme- in mid-2019. Charles Debono was deported
diation agreement with the Public Prosecution to Canada from the Dominican Republic and
Service of Canada. The agreement is still subject convicted to serve seven years in jail for charg-
to approval by the Quebec Superior Court. If it is es of fraud over CAD5,000, laundering crime
approved by the court, the agreement with Ultra proceeds, bribery of an agent, personation
Electronics would be the second deferred pros- with intent, and using, dealing and acting on a
69 CHAMBERS.COM
forged document in connection with a CAD56- defend charges under the CFPOA at trial and
million debit terminal Ponzi scheme. He was be convicted. He was sentenced to three years’
also ordered to pay CAD26 million in restitution imprisonment. An application for leave to appeal
within five years of being released from prison. to the Supreme Court of Canada was dismissed
He will serve another seven-year sentence if he in 2018.
defaults on paying.
In January 2019, Robert Barra and Shailes
In November 2020, the RCMP charged Damodar Govinda were also convicted under the CFPOA
Arapakota for bribing a public official from Bot- in connection with the same conspiracy. Nota-
swana, contrary to Section 3(1) of the CFPOA. bly, Mr Barra and Mr Govinda are not Canadian
It is alleged that Mr Arapakota, a former execu- and were extradited from the United States and
tive from IMEX Systems Inc, provided financial the United Kingdom, respectively, to face trial
benefit for a Botswanan public official and his in Canada. Both received sentences of two and
family. New management of IMEX self-reported a half years’ imprisonment. However, in August
the allegations of Mr Arapakota’s conduct to the 2021 the Ontario Court of Appeal overturned
RCMP. their convictions and ordered new trials.
In June 2022, the Cullen Commission of Inquiry As previously noted, Sami Bebawi’s recent pros-
into Money Laundering in British Columbia ecution under the CFPOA resulted in a sentence
released its final report and recommendations. of eight and a half years (although this sentence
The Commission was established “in the wake was also for convictions on other charges under
of significant public concern about money laun- the Criminal Code, not just the CFPOA).
dering in British Columbia.” Over 133 days of
hearings, the Commission heard the testimony In a case that went all the way to the Supreme
of 199 witnesses and received over 1,000 exhib- Court of Canada, Bruce Carson, a senior aide
its. The Report makes 101 recommendations rel- to former Prime Minister Stephen Harper, was
evant to Canadian businesses. convicted of influence-peddling for using his
government contacts to promote the purchase
7.7 Level of Sanctions Imposed of water-treatment systems by indigenous com-
Canada does not yet have an extensive his- munities. In July 2018, Mr Carson was given a
tory of prosecutions under the CFPOA. Since suspended sentence, one year of probation, and
the adoption of the legislation, there have been was ordered to perform 100 hours of community
three guilty pleas: a fine of CAD25,000 against service.
Hydro-Kleen Group in 2005, a CAD9.5 million
fine and a three-year monitoring order against Recently, the Nova Scotia Court of Appeal
Niko Resources in 2011, and a CAD10.4 million increased the sentence to 42 months in jail for
fine against Griffiths Energy in 2013. Harold Dawson, who was convicted in 2019
of conferring an advantage on a government
In 2017, the Ontario Court of Appeal upheld employee (Bry’n Ross) contrary to Section 121(1)
a decision convicting Nazir Karigar under the (b) of the Criminal Code. Mr Ross was also sen-
CFPOA for conspiring to bribe a foreign pub- tenced, and to 36 months in jail. Mr Dawson had
lic official. Mr Karigar was the first person to provided Mr Ross with cash to ensure favour-
70 CHAMBERS.COM
able contracts for his companies in relation to a 8.2 Likely Changes to the Applicable
Department of National Defence heating plant. Legislation of the Enforcement Body
After the enactment of the remediation agree-
Many individuals have also been prosecuted ment provisions of the Criminal Code in 2018,
and found guilty of a range of fraud and bribery there are no changes or additions to Canada’s
offences under the Criminal Code as a result of anti-bribery regime on the immediate horizon.
the Charbonneau Commission and UPAC inves-
tigations. Sentences imposed range from condi- The SNC-Lavalin cases signal both a strong
tional sentences, to be served in the community, commitment to CFPOA enforcement, even when
to six years’ imprisonment, depending on the it involves a major Canadian-owned multination-
individual’s involvement in the offence as well al enterprise, and a turn towards the potential
as other aggravating factors. use of remediation agreements in appropriate
circumstances. The RCMP has also indicated
that it has numerous other CFPOA investigations
8. Review in progress, but it is not clear how many will lead
to prosecutions.
8.1 Assessment of the Applicable
Enforced Legislation
The OECD Working Group on Bribery issued its
Phase 3 Report on Canada’s implementation
of the OECD Anti-Bribery Convention in March
2011. The report made a number of recommen-
dations to strengthen the CFPOA and Canada’s
anti-bribery regime generally. Canada subse-
quently amended the CFPOA in June 2013, by
adding a nationality basis for jurisdiction, estab-
lishing new offences and increasing penalties,
among other changes. More recently, the elimi-
nation of the exception in the CFPOA for facilita-
tion payments was proclaimed into force on 31
October 2017.
71 CHAMBERS.COM
McMillan is a leading business law firm serving offences, economic sanctions, export/import
public, private and not-for-profit clients across controls and tax offences, as well as offences
key industries in Canada, the United States under health and safety, discrimination, im-
and internationally through its offices in Van- migration, financial services, energy, environ-
couver, Calgary, Toronto, Ottawa, Montreal and mental and other regulatory regimes. The team
Hong Kong. The firm represents corporations, also manages and defends against search war-
other organisations and executives at all stages rants, inspection orders, interviews given under
of criminal, quasi-criminal and regulatory in- statutory compulsion, wire-tapping orders, and
vestigations and prosecutions for all types of other investigative actions, and advises on risk
white-collar offences, including fraud, bribery management, regulatory compliance, reputa-
and corruption, money laundering, cartels and tion management and defamation, among other
price-fixing, insider trading or other securities matters.
Authors
Benjamin Bathgate is a partner Guy Pinsonnault is a partner in
in McMillan’s litigation and McMillan’s competition group,
dispute resolution group, a and a co-chair of the white-
co-chair of the white-collar collar defence and government
defence and government investigations group. He handles
investigations group and the full range of competition,
focuses on complex corporate and commercial white-collar crime and Canadian business
litigation in the banking and financial services regulation, litigation and advisory work, with a
industries. He has expertise in several particular focus on Canadian and international
specialised areas of litigation, including cartels, anti-corruption and commercial crime
commercial fraud and transactional disputes. matters. As a prosecutor for more than 30
Ben works extensively with domestic and years, Guy has extensive experience in dealing
international clients investigating and with local, national and cross-border corporate
prosecuting various forms of fraud, including crime investigations. He has appeared before
fraudulent conveyances, and assists in asset- Superior courts, the Federal Court, the Court
tracing and recovery. He has also worked on of Appeal of Quebec and the Supreme Court of
numerous high-profile corporate and securities Canada.
fraud cases, including one of Canada’s largest
ever securities fraud proceedings.
72 CHAMBERS.COM
Jamieson Virgin is a partner in Timothy Cullen is a partner in

McMillan’s litigation and dispute McMillan’s advocacy and
resolution group. He works on a litigation group, and a member
cross-Canada team handling a of the complex disputes and
full range of competition and regulatory regimes group as well
white-collar crime matters. He as the transportation group. His
has significant construction industry regulatory advisory and litigation practice
experience and leverages that specialised focuses on assisting clients in a range of
knowledge to assist industry stakeholders craft industries with compliance, inspections and
practical solutions to competition and white- investigations, regulatory prosecutions and
collar crime issues that they may encounter. private disputes related to lobbying,
Jamieson has appeared at all levels of court in government and public policy, vehicle safety
British Columbia, the courts of Alberta, and and emissions, public procurement and
numerous regulatory bodies and arbitral commercial and contract disputes. Timothy is
tribunals. a senior adviser and general counsel to
McMillan Vantage, a full-service national public
affairs firm affiliated with McMillan LLP. Before
joining the firm, he served in various roles on
Parliament Hill for nearly a decade.
McMillan
Brookfield Place
181 Bay Street
Suite 4400
Toronto
ON M5J 2T3
Canada
Tel: +1 416 865 7000

Email: info@mcmillan.ca
Web: www.mcmillan.ca
73 CHAMBERS.COM
CHILE
Bolivia Brazil
Law and Practice Paraguay
Contributed by:
Chile Santiago
Uruguay
Jorge Bofill Genzsch and César Ramos Argentina

Bofill Escobar Silva Abogados see p.89
Contents
2.1 Bribery p.76
4.1 Defences p.81
5. Penalties p.82
Penalties p.83
74 CHAMBERS.COM
CHILE Law and Practice
Contributed by: Jorge Bofill Genzsch and César Ramos, Bofill Escobar Silva Abogados
1. Legal Framework for Offences constitute precedent. Judgments are only bind-
ing in the case in which they are issued and only
1.1 International Conventions for the parties involved in that case.
Chile has signed up to several anti-bribery and
anti-corruption international conventions. Most The National Public Prosecutor, which is the enti-
relevant are the Inter-American Convention ty entrusted with the investigation and enforce-
Against Corruption of the Organization of Ameri- ment of criminal offences, has recently issued
can States (OAS), the Organisation for Economic new instructions to which public prosecutors are
Co-operation and Development (OECD) Con- subject in the context of anti-corruption inves-
vention on Combating Bribery of Foreign Public tigations (Oficio Fiscalía Nacional No 472-2020,
Officials in International Business Transactions 29 July 2020).
and the United Nations Convention against Cor-
ruption. These instructions are aimed at achieving an
effective, coherent and co-ordinated perfor-
1.2 National Legislation mance of the function of public prosecution.
The main legislation against corruption and Therefore, they are binding for prosecutors only.
bribery is set forth in the Código Penal (Criminal
Code), Law No 18,575 on Public Administra- The new instructions refer to relevant matters
tion, and Law No 18,834 on Statute Applicable regarding corruption crimes, such as the con-
to Public Officials. All offences are laid down in cept of public officer, ameliorating and aggravat-
legal texts. ing circumstances of criminal liability, whistle-
blowing, and several procedural matters, such
For example, bribery is considered a crime in the as the possibility of reaching agreements in
Criminal Code (Articles 248 to 251 sexies), but order to finish investigations without a trial, ie,
the same conduct is also prohibited under laws through a monetary settlement or deferred pros-
which regulate the activity of domestic public ecution agreements.
officials (especially Law No 18,575 and Law No
18,834) and is considered an infringement of the 1.4 Recent Key Amendments to National
probity and impartiality principles to which pub- Legislation
lic officials are subject, which provide adminis- Legislation on corruption-related crimes has
trative sanctions for such conduct. been subject to important amendments over the
past decade. The most noteworthy occurred in
It is also worth mentioning that Law No 20,393, 2009 and 2018, which were the modifications of
on Criminal Liability of Legal Entities, is applica- the Criminal Code and the enactment of Laws
ble to a specific list of offences, including among No 19,913, No 20,393 and No 21,121.
others the crimes of bribery, unlawful negotiation
and commercial bribery. In 2009, the Criminal Code was amended to
include the bribery of foreign public officials in
1.3 Guidelines for the Interpretation and the context of international business transac-
Enforcement of National Legislation tions as a criminal offence. During the same year,
There are no general guidelines. Judgments are Law No 20,393 on Criminal Liability of Legal
a source of interpretation of the law, but do not Entities was enacted, which considers bribery as
75 CHAMBERS.COM
one of the crimes that may give rise to criminal Law No 21,240 (20 June 2020) amended the
penalties for such entities. These amendments Criminal Code, establishing new and more
were a consequence of the adoption by Chilean severe penalties for those who fail to comply
law of the standards required by the OECD, of with sanitary measures in the event of an epi-
which Chile has been a full member since 2010. demic or pandemic. This new regulation incor-
porated Article 318 ter to the Criminal Code,
On 20 November 2018, Law No 21,121 was which penalises companies that order workers
published, amending the Criminal Code, Law under their supervision to attend their workplace
No 20,393, and Law No 19,913 on money laun- when those workers are in quarantine or in man-
dering, incorporating several changes regarding datory isolation ordered by the health authority.
bribery, bribery of foreign public officials (fol- The commission of this crime could also make
lowing recommendations issued by the OECD), the legal person criminally liable.
unlawful negotiation and money laundering,
including an increase of applicable penalties. Law No 21,459 (20 June 2022), in effect from
However, the most relevant change was the December 2022, introduced new informatic
introduction of commercial bribery and disloyal crimes to the catalogue of offences for which
administration as new punishable crimes. Also, legal entities can be criminally liable, contained
Law No 21,121 established the crime of bribery in Article 1 of Law No 20,393. Amongst the new
without counter-performance, which solved a punishable crimes this legislation includes differ-
common probatory difficulty regarding the con- ent varieties of hacking and other offences, such
nection of the payment with the act performed as the illegal accessing of computer systems,
by the public official. interference with the transmission of informa-
tion, attacking the integrity of data, informatic
Additionally, Laws No 21,227 and No 21,240, falsehood, informatic receiving, informatic fraud,
which were recently passed as a response to and the abuse of devices.
the COVID-19 pandemic, established criminal
offences that could carry criminal liability of legal
entities. 2. Classification and Constituent
Elements
Law No 21,227 (6 April 2020) regulates access
to unemployment insurance benefits. Article 2.1 Bribery
14 punishes those who, through simulation or The Chilean legal system contemplates a wide
deceit, obtain an economic benefit, such as an list of crimes related to corruption and bribery,
unemployment insurance, greater than that to for which the main and most relevant are embez-
which they are entitled. If the crime is committed zlement of public funds, grant fraud, unlawful
in interest or for the benefit of a company, the negotiation, bribery, commercial bribery and
legal person may be criminally liable, provided influence-peddling.
that the commission of the crime is a conse-
quence of the breach, by the company, of its All these crimes are defined in the Criminal Code
duties of direction and supervision over its work- and follow the general rules of punishability. In
ers. this respect, for an act of that kind to be punish-
able, it must have been carried out with intent
76 CHAMBERS.COM
(the Criminal Code only punishes acts that have manifestations of courtesy and good education,
been done with recklessness in specific cases, will not be considered as an offence.
almost none of which are related to corruption
and bribery; there is an exception in the case Chilean legislation does not include a specific
of embezzlement – see 2.4 Public Officials). obligation to prevent bribery, nor does it oblige
In crimes related to corruption and bribery, the companies to maintain compliance programmes.
Chilean criminal system does not require any Nonetheless, Law No 20,393 on Criminal Liability
kind of motive to be ascribed to the offender in of Legal Entities acknowledges the importance
order to impose a sanction. of compliance programmes, as it assumes that
management and supervisory duties of the legal
There is no general legal definition of bribery (or entity have been met if, prior to the commission
at least not just one). Bribery is punished in dif- of the offence, the legal entity has implemented
ferent provisions of the Criminal Code (Articles a crime-prevention model. A well-functioning
248, 248 bis, 249 and 250). The criminal con- compliance programme may be an exculpatory
duct is defined as giving, offering or consenting factor for the legal entity.
to give an economic benefit or a benefit of any
other nature. From the public officer’s perspec- Article 260 of the Criminal Code contains a
tive, it is receiving, offering to receive, or accept- broad definition of public official, which applies
ing receipt of that benefit, be it in favour of the to all offences committed by them. This concept
employee or a third person. All these conducts extends to all those who exercise a “public func-
shall be related, in the original conception of tion”, applying to all bodies created or depend-
the Criminal Code, to the performance or lack ent on the State. In this respect, it includes
of performance by the public officer of an act situations that clearly go beyond the restricted
according to their duties, against their duties, technical notion that administrative legislation
or a specific crime. However, Law No 21,121 confers to the term “public official”.
included as a new provision a basic form of brib-
ery consisting in the act of giving, offering, or Bribery of foreign officials constitutes an excep-
consenting to a benefit by reason of the position tion to the principle of territoriality generally
of the public employee, without any request of applicable in Chile. In that sense, Chilean courts
any conduct by the public officer as a counter- may have jurisdiction regarding the bribery of
performance for the benefit. In other words, the a foreign official committed abroad, either by a
mere fact of granting/consenting a benefit is Chilean national or a foreigner with residence
sanctioned as bribery. in Chile. The offence consists of the offering or
promising of a benefit, of economic or any other
With respect to the benefit, it can be an eco- nature, to a foreign public official in return for the
nomic benefit or of any other kind of benefit (ie, foreign public official’s performance or omission
social or sexual). of an act that would provide an unfair advantage
in an international transaction (or business deal)
An exception is stated in Article 251 sexies, to the offeror of the bribe.
according to which in some conducts, such as
giving or offering protocol donations, or those of One of the main novelties brought about by Law
little economic value that customs authorise as No 21,121 was the criminalisation of commercial
77 CHAMBERS.COM
bribery. It punishes an employee or mandatary The Comisión para el Mercado Financiero (Finan-
who requests or accepts receipt of an economic cial Market Commission) is the public entity that
or other benefit, for themself or for a third party, supervises corporations in these matters.
in order to favour or have favoured in the exer-
cise of their tasks the contracting with one bid- There are, nevertheless, specific criminal sanc-
der over another. tions for acts that consist of providing false or
misleading information to the market (including
2.2 Influence-Peddling false information contained in financials deliv-
Influence-peddling is punished in Article 240 ered to the Financial Markets Commission) in
bis of the Criminal Code. This rule sanctions the connection with publicly traded securities. The
public employee who, being directly or indirectly relevance of information in stock transactions is
interested in any kind of contract or operation in recognised in several provisions of the Securities
which another public employee must intervene, Market Law (Law No 18,045). This law includes
exercises influence on them to obtain a favour- several offences that violate the protection of
able decision for their interests. information in transactions of securities, includ-
ing adulteration, misuse and concealment or
In Chilean legislation there is no offence that improper disclosure of information to be con-
punishes a private person who seeks to influ- sidered in sales decisions or in the terms of com-
ence the decisions of a foreign public official. mercial acts involving publicly traded securities.
2.3 Financial Record-Keeping Articles 59 and 60 of Law No 18,045 contain

There is no specific criminal sanction related a catalogue of crimes related to stock market
to financial record-keeping. However, there abuse. Article 59 punishes the provision of false
are many administrative rules that impose on information to the market. Article 60 contains a
corporations an obligation to maintain correct series of offences involving the fraudulent acqui-
accounts and a duty to provide reliable financial sition of shares without making a tender offer in
information. those cases in which it is mandatory to do so,
the use or disclosure of privileged information
Likewise, there are criminal sanctions regarding to obtain benefits or avoiding a loss in transac-
partners of external auditing companies that tions of public offer values (insider trading), the
maliciously issue an opinion or provide false improper use of values in custody and the delib-
information on the financial situation or other erate concealment or elimination of accounting
matters on which they have expressed their records or custody of securities.
opinion, certification or report. In addition, those
who provide services in an external auditing firm The Chilean legal system defines privileged
and alter, conceal or destroy information of an information (insider trading) as any information
audited entity in order to obtain a false opinion related to one or more issuers of shares, to their
about its financial situation commit a criminal businesses or to one or more shares issued by
offence. them, that is not disclosed to the market and the
knowledge of which, by its nature, is capable of
influencing the quotation of the issued shares,
as well as the information held on the acquisition
78 CHAMBERS.COM
or disposal operations to be carried out by an which they intervene by reason of their posi-
institutional investor in the stock market. Law No tion (Article 239 of the Criminal Code).
18,045 assumes that the directors, managers, • Unlawful negotiation: this offence punishes
administrators, main executives and liquidators public employees who directly or indirectly
of an issuer of securities or an institutional inves- take an interest in any negotiation, action,
tor are in the possession of privileged informa- contract, operation or management in which
tion. they must intervene because of their position.
According to the prevailing doctrine, this pro-
2.4 Public Officials vision establishes a crime of abstract danger,
In addition to the different types of bribery, Chil- which is consummated with the mere execu-
ean legislation contemplates a wide catalogue tion of the conduct, without requiring the
of crimes regarding public officials; the most rel- verification of a result or damage to the fiscal
evant related to corruption are embezzlement of patrimony (Article 240 No 1 of the Criminal
public funds, grant fraud and unlawful negotia- Code).
tion.
2.5 Intermediaries
• Embezzlement of public funds includes: The Chilean Criminal Code distinguishes
(a) embezzlement by subtraction, which is between two classes of co-operators: (i) the co-
a crime committed by a public employee perpetrator, legally equated with the perpetra-
who subtracts, or consents to the sub- tor, although they do not take direct part in the
traction by another, of the funds or effects execution of the crime, and (ii) the accomplice
for which they are responsible (Article 233 in the strict legal sense.
of the Criminal Code);
(b) reckless embezzlement, which is a The co-perpetrator is the one who conspires with
crime committed by a public employee another and provides the means for the commis-
who, through inexcusable negligence or sion of the crime. The accomplice, conversely,
abandonment, provides an opportunity for is the one who is not included in the definition
another person to subtract the public or of co-perpetrator, but who also assists in the
private funds or effects under their charge execution of the act with previous or simultane-
(Article 234 of the Criminal Code); and ous actions. In the case of the co-perpetrator,
(c) embezzlement by distraction, which is a they are punished with the same penalty as the
crime committed by a public employee perpetrator, while the accomplice is punished
who applies the proceeds or effects at with a lower penalty.
their charge to their own use (Article 235
of the Criminal Code).
• Grant fraud: a crime committed by a public 3. Scope
employee who defrauds or consents to the
defrauding of the State, municipalities or 3.1 Limitation Period
public educational or charitable institutions, Limitation periods are established in considera-
whether by causing them loss or depriving tion of the nature of the criminal offence. Crimes
them of a legitimate profit, in operations in (crímenes) have a limitation period of 15 years
in cases where the law imposes a penalty of life
79 CHAMBERS.COM
imprisonment, or ten years in the other cases; 3.3 Corporate Liability

misdemeanours (simples delitos) are limited to Since the enactment of Law No 20,393, the list of
five years, and in the case of offences (faltas), offences for which a company can be held crim-
six months. The limitation period is suspended inally liable has been extended several times.
once a criminal procedure is directed against the Today, companies can be criminally liable for
defendant. bribery, money laundering, financing of terrorism,
receipt of stolen goods, disloyal administration,
Law No 21,212 introduced certain common rules commercial bribery, unlawful negotiation, misap-
for crimes committed by public officials, one of propriation, certain conducts that are related to
these being the suspension of the statute of limi- water pollution and illegal fishing activities and,
tations of the crime while the respective official is from December 2022 onward, computer crimes.
in office, in order to avoid impunity for the pas- As mentioned previously in 1.4 Recent Key
sage of time. Amendments to National Legislation, Laws No
21,227 and No 21,240 established new crimes in
If the accused leaves the country at any time the context of the COVID-19 pandemic, and Law
during the limitation period, the limitation period No 21,459 incorporated new offences related to
runs at half the speed, ie, two days abroad count computer crimes, all conducts for which legal
as one for the purposes of calculating the limita- entities can be criminally liable.
tion period.
Regarding all the above-mentioned offences, the
3.2 Geographical Reach of Applicable public prosecutor may seek both the individual
Legislation responsibility of those who performed the con-
In principle, only crimes committed in Chile can duct and the criminal responsibility of the com-
be prosecuted before Chilean courts. There are pany. However, the Public Prosecutor’s Office
only a few exceptions to this. The extra-territo- has no institutional guidelines that state that
rial reach of Chilean criminal law is specifically either individuals or companies must be prefer-
regulated in the Código Orgánico de Tribunales entially prosecuted. Moreover, managers are not
(Code of Organisation of Courts), including criminally responsible for the mere fact that the
crimes committed abroad by Chileans against company is convicted of the crime.
Chileans, if the offender returns to Chile without
having been prosecuted abroad, in cases where There is no special provision dealing with the
bribes are accepted by Chilean public officials possibility of the same lawyers representing the
abroad or the bribery of a foreign public official legal entities and the natural persons involved,
committed by a Chilean. and joint representation is common, except
where the defence strategies are incompatible
In addition, most of Chilean legal literature and (the Bar Code of Ethics and the Criminal Proce-
jurisprudence understands that the Chilean state dure Code are applicable).
can prosecute crimes if the execution of a crimi-
nal act begins in Chile, even though its effects In the case of a reorganisation, merger, acquisi-
occur in another country, or if the execution of a tion, division or dissolution of a company where
crime begins abroad, but it has consequences one of the sanctioned crimes was committed,
in Chile.
80 CHAMBERS.COM
Law No 20,393 provides that the responsibility Effective co-operation with the investigation
for such acts is transmitted to the successor. is a special mitigating circumstance in bribery
cases. The co-operation has effectively to serve
the purpose of clarifying the investigated case,
4. Defences and Exceptions identifying the offenders, preventing the perpe-
tration of the crime or facilitating the confiscation
4.1 Defences of goods or assets deriving from the offence.
There are no special defences available for indi- This mitigating circumstance is not available for
viduals charged in connection with bribery or high-ranking and elected public officers, judges
corruption offences. In that respect, offenders and public prosecutors.
have the same defences available as for other
crimes (ie, mitigating circumstances such as 4.2 Exceptions
not having prior convictions, material collabora- In general, the Chilean criminal system does not
tion with the investigation, self-indictment, etc). contemplate exceptions of any kind regarding
Defendants have ample rights of defence, they bribery or corruption offences. However, article
are granted access to the file from the beginning 251 sexies of the Criminal Code presents a spe-
of the investigation and have broad access to an cial case.
attorney, including the Public Criminal Defence.
4.3 De Minimis Exceptions
In connection with legal entities, they may be Article 251 sexies of the Criminal Code incorpo-
exempted from criminal liability, inter alia con- rates the logic of de minimis exception into the
cerning bribery cases, if, before the criminal Chilean system. The provision allows conducts
offence was executed, they adopted an appro- that could constitute crimes of bribery or cor-
priate compliance programme aimed at avoid- ruption, when they are in respect of official or
ing the occurrence of that particular crime. Such protocolary donations or of little economic value
prevention programmes may be certified by and are customary as manifestations of cour-
external entities registered for these purposes tesy and good manners, leaving trifling conduct
before the Financial Market Commission. without penalty.
However, Law No 20,393 on Criminal Liability of However, foreign officials or public servants are
Legal Entities expressly makes certain mitigat- explicitly left out of the scope of this provision.
ing circumstances available, such as to repair
with extreme diligence the damage caused by 4.4 Exempt Sectors/Industries
the offence or the adoption of measures to avoid The Chilean criminal system does not contem-
the reiteration of the offence after the offence plate restrictions with respect to bribery or cor-
has been committed but before the beginning ruption offences within the scope of a specific
of the trial. Also, self-reporting of the offence sector or industry.
by the legal representatives of the company
to the authorities before they are aware that a 4.5 Safe Harbour or Amnesty Programme
legal proceeding has been initiated against the Companies are not subject to the supervision
company may also be argued as a mitigating by regulatory entities for compliance with anti-
circumstance. corruption laws. It is beyond the Prosecutor’s
81 CHAMBERS.COM
Office to issue regulations or measures to create benefit is offered or given, and 61 days to
incentives to self-report a known or suspected three years, in the case where the benefit
violation. is consented to. In addition, a fine from
100% to 200% of the benefit (where the
According to Law No 20,393 on Criminal Liability benefit is not an economic one, the fine is
of Legal Entities, self-reporting may constitute a from 50 UTM to 500 UTM) and restriction
mitigating circumstance if it is performed by the from working as a public employee from
legal representatives of the company before the five years and one day to seven years
applicable proceeding is initiated. shall also be imposed;
(c) for bribery that consists in omitting or
having omitted an act proper to the office
5. Penalties of the public employee, or to perform or
for having performed an act in breach
5.1 Penalties on Conviction of the duties of their office, including
For individuals, penalties for bribery, embezzle- exercising influence over another public
ment, grant fraud and unlawful negotiation are employee in order to obtain a decision
as follows. that may generate a profit for a third party,
penalties range from three years and one
• Bribery: the penalty for the briber will mainly day to ten years of imprisonment, if the
depend on the kind of bribery and the eco- benefit is offered or given, and 541 days
nomic amount of benefit: to five years, if the benefit is consented
(a) for “bribery without counter-perfor- to. In addition, a fine of between 200%
mance”, ie, the crime that consists of the and 400% of the benefit (where the
mere fact of giving, offering, or consent- benefit is not an economic one, the fine is
ing to a benefit by reason of the position from 100 UTM to 1,000 UTM) and restric-
of the public employee, the penalty for tion from working as a public employee
the briber is 541 days to three years of from seven years and one day to ten
imprisonment, where the benefit is offered years shall be imposed;
or given, and 61 to 540 days, where the (d) for bribery that consists in offering or
benefit is consented to. In addition, a fine consenting to a benefit for the public of-
equal to the benefit must be imposed ficial to commit some specific offences
(where the benefit is not an economic (referred to in Article 249), penalties range
one, the fine is from 25 monthly tax units from three years and one day to ten years
(UTM) to 250 UTM) and restriction from of imprisonment, if the benefit is offered
working as a public employee from three or given, and 541 days to five years, if the
years and one day to five years; benefit is consented to. In addition, a fine
(b) for bribery that consists in giving, offer- must be imposed, equal to 400% of the
ing or consenting to a benefit for a public benefit (if the benefit is not an economic
official to perform or for having performed one, the fine is from 150 UTM to 1,500
an act proper to their office, the briber will UTM) and restriction from working as a
be punished with 541 days to five years public employee for life;
of imprisonment, in the case where the (e) bribery of foreign officials is sanction-
82 CHAMBERS.COM
able with imprisonment from three years tion” will be applied.

and one day to ten years, restriction from • Grant fraud: the penalty will depend on the
working as a public employee from seven amount deceived. The default penalty is from
years and one day to ten years, and a 541 days to five years of imprisonment, but if
fine from 200% to 400% of the amount of the damage exceeds USD2,700, the pen-
the bribe. If the benefit offered it is not an alty is from three years and one day to ten
economic one, the fines will range from years; if the damage exceeds USD27,000, the
100 UTM to 1,000 UTM; and penalty is from five years and one day to 15
(f) according to Article 251 quater of the years. In any event, it carries a fine of half of
Criminal Code, any person that is con- the total amount of the damage caused and
victed of the aforementioned crimes will restriction from working as a public employee
be barred from working in companies that from five years and one day to ten years.
have entered into contracts with the state, • Unlawful negotiation: the penalty associated
or if the state has a majority holding, or with the crime is imprisonment from 541 days
in companies that grant a service to the to five years, a fine of half of the total amount
state, or provide a public service. of the damage caused and restriction from
• Embezzlement of public funds: working as a public employee from five years
(a) embezzlement by subtraction: penalties and one day to ten years.
depend on the amount of the subtrac-
tion. If it is less than USD270, the penalty It is worth saying that all sentences of more than
of imprisonment ranges from 541 days five years and one day are effectively served in
to five years, if it exceeds USD270 and jail (no benefits or agreements with the prosecu-
does not reach USD2,700, the penalty is tor are allowed).
three years and one day to ten years, and
if it exceeds USD27,000, the penalty is With respect to legal entities, according to Law
five years and one day to 15 years. In all No 20,393 on Criminal Liability of Legal Entities,
cases, a fine of 200% of the amount sub- the available penalties for corporate entities, in
tracted and restriction from working as a the case of acts of bribery, include the imposi-
public employee from five years and one tion of fines (of up to approximately USD20 mil-
day to seven years must be imposed; lion for the worst cases), temporary prohibition
(b) reckless embezzlement: there is an to enter into contracts with governmental bod-
obligation to return the amount or effects ies and/or temporary loss of the right to receive
misappropriated and restriction from governmental benefits, and even in some cases
working as a public employee from 61 dissolution of the company.
days to three years; and
(c) embezzlement by distraction: it carries 5.2 Guidelines Applicable to the
a fine of 50% to 100% of the amount of Assessment of Penalties
the damage caused and restriction from As previously stated, each crime has a specific
working as a public employee from five penalty established by law. The Criminal Code
years and one day to seven years. If the contemplates general rules for penalty assess-
refund has not been verified, the penalties ment, including mitigating and aggravating fac-
indicated in “embezzlement by subtrac- tors, such as recidivism. In that respect, the pen-
83 CHAMBERS.COM
alty is determined applying the following factors: • the designation of a compliance officer;
the penalty assigned by law to the crime, the • a definition of the powers and intervention
degree of development of the crime (attempted methods of the compliance officer;
crimes have a lower penalty), the kind of criminal • a programme in order to avoid the commis-
intervention (perpetrator, co-operator or accom- sion of crimes inside the company; and
plice), mitigating and aggravating circumstanc- • the definition of a way to supervise and certify
es, and the extent of the damage caused by the the compliance programme.
crime.
6.2 Regulation of Lobbying Activities
The law contemplates the possibility of reach- Lobbying activities are regulated by Law No
ing an agreement in order to terminate the case 20,730 (since 2014), which concerns all the
without going to trial, either through a monetary steps taken to promote private interests before
settlement or deferred prosecution agreements. public servants and authorities. The basic prin-
ciples of this regulation are to give publicity to
Plea agreements, however, are available when and create the obligation of keeping a registry
the conviction sought by the Prosecutor’s of the following:
Office does not exceed five years of imprison-
ment. When defendants acknowledge the facts • meetings and audiences requested by lob-
for which they are being prosecuted, they may byists and particular interest managers that
apply for a reduced conviction, with the authori- seek to influence public decision-making
sation of the judge. processes;
• travel undertaken by authorities and public
There are no other guidelines that judges and/or servants in that capacity; and
prosecutors should follow in any of these situ- • gifts received by virtue of their position.
ations.
The Law prescribes administrative sanctions for
public officials who violate the obligation of reg-
6. Compliance and Disclosure istry or publicity as the law requires, providing
sanctions such as fines, making the offender’s
6.1 National Legislation and Duties to identity known on the official website of the
Prevent Corruption service in question, and giving account of the
Pursuant to Law No 20,393 on Criminal Liability infraction in the public account rendered by the
of Legal Entities, the existence of a compliance service, amongst others.
programme may exempt a company from crimi-
nal liability to the extent it fulfils the requirements Lastly, the Law explicitly indicates that its provi-
stated by law. sions do not preclude the eventual criminal liabil-
ity that the conduct in question may lead to, ie,
According to Article 4° of Law No 20,939, com- cases of bribery and incompatible negotiation.
pliance programmes should have (for having the
aforementioned exemption effect) at least the
following elements:
84 CHAMBERS.COM
6.3 Disclosure of Violations of Anti- the prosecutor to obtain more lenient treatment
bribery and Anti-corruption Provisions by entering, for example, into agreements with
Regarding individuals, self-reporting or sub- the Public Prosecutor’s Office, which may imply
stantial co-operation in the context of a criminal a deferred prosecution or a reduced penalty in
investigation may be considered as mitigating the context of a plea agreement. The only limita-
factors when considering the extent of criminal tion on these settlements is determined by law
responsibility. for cases where the possible sanction on the
defendant exceeds three years’ imprisonment
Law No 20,393 on Criminal Liability of Legal Enti- in the case of deferred prosecution agreements
ties provides incentive mechanisms for compa- and five years of imprisonment in the case of a
nies to self-denounce. Thus, if the managers of plea agreement.
a company report their own misconduct before
the start of a criminal prosecution, they will have To create incentives to obtain information that
the right to a reduced sentence. can boost and strengthen anti-corruption inves-
tigations, Law No 21,121 recognises effective
6.4 Protection Afforded to Whistle- co-operation with the investigation as a special
Blowers mitigating circumstance in bribery cases, which
In the absence of legal regulation, whistle-blow- can significantly reduce the applicable penalty.
ing is not a widespread practice. The Chilean Such co-operation has effectively to serve the
criminal procedural system allows the prosecu- purpose of clarifying the investigated case, iden-
tor to enter into agreements with individuals, tifying the offenders, preventing the perpetration
generally approved by the judge or court, but of the crime or facilitating the confiscation of
this is more of a general rule than a direct regula- goods or assets deriving from the offence.
tion to protect whistle-blowers.
In connection with administrative sanctions,
There is no regulation of the foregoing in the there are certain provisions aimed at protecting
private sector, so individuals who report suspi- whistle-blowers who hold a public office when
cious or illegal conduct within a company will reporting crimes or administrative infringements
depend on the company’s internal policies. Due to the competent authorities. However, this pro-
to the increased application of compliance protection is very limited, as it only applies to public
grammes in recent years, it has become more officers and only considers the suspension of
common for companies to have systems which the ability to apply certain disciplinary measures
protect whistle-blowers. against such persons for a period of up to 90
days after the investigation initiated by the report
6.5 Incentives for Whistle-Blowers of the whistle-blower has finished. The identity
There are no protocols or regulations issued and the information that the whistle-blower pro-
by enforcement authorities granting incentives vide have to be kept confidential if requested by
for whistle-blowers specifically in connection the person who provides the information.
with anti-corruption violations. As is the case
in all kinds of criminal investigation (and not However, substantial co-operation with the
only anti-corruption cases), individuals or cor- investigation is considered as a mitigating cir-
porate entities may decide to co-operate with cumstance that may lower the applicable pen-
85 CHAMBERS.COM
alty. In practice, co-operation may also play a from exercising a public office and imprison-
role in the willingness of the prosecutor to offer ment.
an alternative resolution for the case and not go
to trial. Administrative liability in the case of individuals
is in general only applicable for anti-corruption
6.6 Location of Relevant Provisions violations committed by public servants and is
Regarding Whistle-Blowing enforced by the General Comptroller’s Office.
There have been attempts to include whistle- However, as is the case for corporate entities,
blower protection in legislation. However, these there are certain special administrative penalties
protections have had a rather limited effect, as that may be applicable to individuals in general
they only refer to certain public officers and only in the context of violations to limits applicable to
consider a suspension of the ability to apply cer- the financing of political campaigns.
tain disciplinary measures against these persons
for a period of up to 90 days after the investiga- The law does not contemplate civil enforcement
tion initiated by the report of the whistle-blower by government agencies. However, anyone who
has ended. The whistle-blower may request that suffers damage by a conduct – whether com-
their identity and the information that they pro- mitted by entities or individuals – that contra-
vide be kept confidential. These provisions, in venes anti-corruption laws may file a civil action
an administrative way, are regulated in Law No against that entity, pursuant to general tort law.
18,834 on Statute Applicable to Public Officials.
7.2 Enforcement Body
The public bodies in charge of the prosecu-
7. Enforcement tion of the crimes and administrative infractions
previously mentioned are the Public Prosecu-
7.1 Enforcement of Anti-bribery and Anti- tor’s Office and the Comptroller General of the
corruption Laws Republic, respectively. The interaction between
In general, Chilean law does not provide for those two public bodies is not expressly regu-
administrative sanctions for corporate entities lated, but each of them falls within its exclusive
in the case of violation of anti-corruption laws. sphere of competence: the Public Prosecutor
However, they may face administrative penalties investigates and pursues the punishment of the
in cases of violation of specific administrative conducts that constitute a crime, and the Comp-
provisions which indirectly aim to avoid poten- troller General of the Republic investigates and
tial corruption or conflicts of interest. This is the sanctions the conducts that constitute only an
case, for example, with violations of the recently administrative fault.
introduced provision that prohibits corporate
entities from financing political campaigns or 7.3 Process of Application for
parties, which may be punished with monetary Documentation
fines. The process to acquire information or docu-
mentation is relatively similar, whether it comes
Individuals may also face criminal prosecution, from the Comptroller General of the Republic
risking penalties that include fines, prohibition or the Public Prosecutor. Both agencies direct
a request for information to the person or legal
86 CHAMBERS.COM
entity, for the delivery of which they will give a It was a landmark case because it changed the
deadline. As stated previously, in the case of the way in which bribery is understood, to the extent
Public Prosecutor’s Office, if the person denies that legal reform followed, in order to adjust the
or delays the delivery of a record the prosecutor conduct sanctioned, as well as shifting the way
may request the competent tribunal to author- in which compliance policies are understood.
ise the seizure of them, which entails the aid of The tribunal convicted a legal entity (CORPES-
public force. CA) for its lack of commitment to the prevention
of crimes within its structure, which was deter-
7.4 Discretion for Mitigation mined by a deficient compliance policy. This lat-
The administrative body – the Comptroller Gen- ter circumstance was found to be determinant in
eral of the Republic – has little discretion to miti- the analysis of the crimes for which the execu-
gate the fulfilment of its powers; that is, it must tives were convicted, such as Mr Francisco
investigate – and punish in its case – any cases Mujica, who entered into a plea agreement and
of corruption that may arise in accordance with did not face jail time.
the law. However, as has been described in pre-
vious sections, the Public Prosecutor’s Office Regarding landmark investigations, the Itelecom
is entitled to mitigate the enforcement of crimi- case has generated interest regarding investiga-
nal law through different mechanisms (see 1.3 tion of the bribery of several public servants by
Guidelines for the Interpretation and Enforce- the executives of a legal entity, involving various
ment of National Legislation, 5.2 Guidelines municipalities. In this case, the mitigating cir-
Applicable to the Assessment of Penalties, and cumstance of Article 260 quater of the Criminal
6.5 Incentives for Whistle-Blowers). Code (substantial collaboration with the clarifi-
cation of the facts) was recognised for the first
7.5 Jurisdictional Reach of the Body/ time since the enactment of the anti-corruption
Bodies law. This circumstance is a qualified version of
As previously mentioned, the area of jurisdiction the general mitigating circumstance consist-
of each public agency depends on whether the ing in collaboration with the clarification of the
acts of corruption constitute only administrative facts, which has to be explicitly recognised by
offences (in which case only the Comptroller the prosecutor, and Itelecom becomes a model
General of the Republic is involved) or also con- case for the recognition of this circumstance for
stitute criminal offences (in which case the Pub- future cases.
lic Prosecutor’s Office is involved and litigates
before the courts with criminal jurisdiction). 7.7 Level of Sanctions Imposed
Many of the recent cases of bribery or corruption
7.6 Recent Landmark Investigations or have ended with plea agreements and convicted
Decisions involving Bribery or Corruption people were not sentenced to jail, but severe
As far as landmark decisions go, in 2021 COR- penalties of fines and restrictions were imposed.
PESCA ended leaving many lessons. The case
was about the illegal financing of politics and
resulted in convictions for the crimes of bribery
of public officials and tax fraud.
87 CHAMBERS.COM
8. Review In this context, Congress is currently discuss-

ing a legal reform (Boletin Número 13.205-07)
8.1 Assessment of the Applicable which aims to systematise economic crimes and
Enforced Legislation offences against the environment. The reform
Many of the modifications enacted by Law No intends to restrict the effect of mitigating and
21,121 were adopted with the purpose of fulfill- aggravating factors, mostly unrelated to busi-
ing international commitments in the matter of ness crime, replacing them with a specific cata-
corruption, and as a reaction to certain cases logue.
of corruption that have occurred in recent times
in Chile. In addition to this, it limits the applicability of
alternatives to imprisonment, such as probation,
The current legislation is severe with corruption introduces the general confiscation of profits,
and bribery and is expected to be more effective, reforms the system of fines and introduces rel-
but it is still too early to give an informed opinion. evant changes to the statute of liability of legal
persons, eliminating the requirement of the
8.2 Likely Changes to the Applicable benefit of the company, and extending both the
Legislation of the Enforcement Body catalogue of crimes and of persons whose inter-
As previously noted, changes in corruption and vention generates the liability of the legal person.
bribery legislation have been made only recent-
ly. In addition, there are two relevant projects in Finally, modifications are introduced in different
progress. economic crimes, including the introduction of
the statute of environmental crimes, the regula-
The first one seeks to establish a new Criminal tion of the criminal protection of business secre-
Code. The current Criminal Code was enacted cy, and a relevant modification to bankruptcy
in 1875 and, although it has undergone constant crimes and crimes against the securities market.
modification and has had to be complemented
by multiple laws that incorporate new crimes, Likewise, several crimes currently in force are
there is consensus among all actors on the need modified in order to improve their wording and
for a modern criminal code. Consequently, since solve the difficulties of interpretation and appli-
2013, three drafts of a new criminal code have cation that have arisen in practice. Also, a crime
been presented as part of an initiative driven by of misleading advertising is introduced in the
the Ministry of Justice, the latest of which was Consumer Law and criminal protection is includ-
submitted in October 2018. Two commissions ed against cases of labour exploitation.
in which academics and distinguished practi-
tioners drafted a modern Criminal Code were
chaired by Mr Jorge Bofill.
88 CHAMBERS.COM
Bofill Escobar Silva Abogados is a leading Chil- of corporate investigations being carried out
ean law firm that focuses on the resolution of by in-house compliance teams. The firm has
complex and cross-border business disputes, distinctive experience with disputes involving
before local and foreign courts, governmental highly technical matters, with multiple parties,
authorities, and international arbitration tribu- in several languages in numerous jurisdictions,
nals. The firm is currently active in a wide range and inter-related litigation, working with experts
of high-profile cases, covering almost all indus- in multiple fields. The diverse backgrounds and
tries and markets, including antitrust, natural re- skills of Bofill Escobar Silva’s lawyers provide
sources, energy, mining, construction, finance, a strategic, comprehensive and innovative ap-
and securities. The firm also has vast experi- proach to conflict resolution, particularly valu-
ence advising clients in white-collar and anti- able for clients when litigation is not the best
corruption cases, as well as conducting internal option available.
investigations or acting as the external adviser
Authors
Jorge Bofill Genzsch is an César Ramos is a distinguished
experienced dispute resolution attorney in the area of white-
attorney in the areas of white- collar crime. He has broad
collar crime, corporate experience designing legal
investigations, civil litigation, strategies and providing clients
international arbitration, and with legal counsel and
mediation. Mr Bofill is often requested as an representation in highly complex cases with a
expert by the Chilean Senate’s Committee on high public profile. In addition to his experience
Constitution and Legislation. Examples of his in criminal litigation, he has also worked for the
involvement in these matters are the complete Studies Department of the Public Criminal
revamping of the Chilean criminal procedure Defence Service and the Justice Ministry’s
system and the statute on criminal liability of Legal Division. He has sat on technical and
legal entities, among many others. In April legislative advice commissions pertaining to
2015, Mr Bofill was selected as a member of criminal matters and criminal procedure,
the panel of experts appointed by the including the Criminal Procedures Code
Secretary-General of the United Nations to Reform Commission convened by the Justice
assess the system of administration of justice Ministry in 2018. In addition, Mr Ramos is a
of the United Nations. He has a doctoral professor in criminal law at Universidad Diego
degree from Friedrich-Alexander University Portales Law School.
Erlangen-Nürnberg, Germany, summa cum
laude.
89 CHAMBERS.COM
Bofill Escobar Silva Abogados

Avenida Apoquindo 3472
Piso 19
CP 7550105
Las Condes
Santiago
Chile
Tel: +56 2 2483 9000

Email: besabogados.cl
Web: besabogados.cl
90 CHAMBERS.COM
CHINA
Law and Practice
Contributed by:
Alan Zhou, Jacky Li, Weiwei Gu,
Steven Zhu and Jenny Chen
Global Law Office see p.108
Contents
2.1 Bribery p.93
4.1 Defences p.99
5. Penalties p.101
Penalties p.101
91 CHAMBERS.COM
CHINA Law and Practice
Contributed by: Alan Zhou, Jacky Li, Weiwei Gu, Steven Zhu and Jenny Chen, Global Law Office
1. Legal Framework for Offences 1.2 National Legislation

There is currently no independent and consoli-
1.1 International Conventions dated statute in China that is similar to, for exam-
In December 2000, the Chinese government ple, the Foreign Corrupt Practices Act (FCPA)
signed the United Nations Convention against or the UK Bribery Act. Bribery and corruption
Transnational Organised Crime (the “Conven- in China are governed by multiple authorities in
tion”), which took effect in China on 13 Octo- accordance with various laws and legislation.
ber 2003. While the Convention is universally
applicable to all transnational organised crimes, The legal framework can be divided into three
corruption is one of its main focuses, requiring levels, depending on the severity of the offences
States to take measures through legislation and and the identity of the individuals involved. Firstly,
enforcement to promote anti-corruption. the Anti-unfair Competition Law and other laws
and regulations under civil, administrative, and
As for the international conventions specially economic spheres are the foundations for the
regulating corruption that China has signed widespread administrative enforcement against
up to, the United Nations Convention against commercial bribery in China. Secondly, the
Corruption (the “Anti-corruption Convention”) Criminal Law and the corresponding legislative
officially took effect in China on 12 February and judicial interpretations, such as the Inter-
2006. China was actively involved in the forma- pretation of the Supreme People’s Court and
tion stage of the Anti-corruption Convention, the Supreme People’s Procuratorate on Several
and was among the first countries to ratify it, Issues concerning the Application of Law in Han-
except for one reservation on paragraph 2 of dling of Criminal Cases of Embezzlement and
Article 66 regarding a dispute-settlement chan- Bribery and the Circular of the Supreme Peo-
nel. The Anti-corruption Convention is the first ple’s Court and the Supreme People’s Procura-
and only legally binding universal anti-corruption torate on Issuing Opinions on Issues concerning
instrument with the framework established on the Application of Law in Handling of Criminal
five pillars: Preventive Measures, Criminalisation Cases of Commercial Briberies stipulate criminal
and Law Enforcement, International Co-opera- violations and criminal offences. Thirdly, there
tion, Asset Recovery, and Technical Assistance are disciplines and regulations promulgated by
and Information Exchange. Ten years on form the Central Committee of the Communist Party
China’s ratification of the Anti-Corruption Con- of China (CPC), which are binding on all CPC
vention, in 2016, the United Nations Office on members and set a much lower threshold for
Drugs and Crime issued a status review report the constitution of corruption-related violations.
on China’s implementation of the Anti-Corrup-
tion Convention, and China’s efforts in and dedi- 1.3 Guidelines for the Interpretation and
cation to combating corruption through active Enforcement of National Legislation
law enforcement, successive international co- There are no official guidelines on the interpre-
operation and sustainable good practices have tation and enforcement of anti-corruption laws
been well recognised. in China.
92 CHAMBERS.COM
Supervisory authorities in various industries notation of bribery varies from criminal law and
would publish certain notices and working plans administrative law perspectives.
for the enforcement actions.
From the criminal law perspective, there are a
1.4 Recent Key Amendments to National total of ten crimes relating to bribery, which gen-
Legislation erally forbid the act of offering a bribe to any
There have been no significant legislative state functionary and non-state functionary, and
amendments to the key corruption statutes in the receiving of that bribe by any state function-
2022. ary and non-state functionary. For example, any
state functionary who extorts property from oth-
China enacted the International Criminal Justice ers by taking advantage of his or her position
Assistance Law (ICJAL) in October 2018. Article or illegally accepts others’ property in return for
4 of the ICJAL expressly prohibits institutions, securing benefits for them shall be convicted of
organisations and individuals in China from acceptance of bribes.
providing evidence materials and assistance
provided in this law to foreign countries with- From the administrative law perspective, in a
out the consent of China’s competent authori- broad sense, bribery refers to offering or tak-
ties. Moreover, the ICJAL applies to a variety of ing money or goods and other acts conducted
activities in criminal proceedings. This has had for the purpose of offering or obtaining trading
a significant impact on common internal investi- opportunities or other economic benefits, in vio-
gations conducted within companies for foreign lation of the fair competition principle.
law considerations, such as the FCPA.
Public Official
Another notable amendment is the revision to The law distinguishes between the bribery of a
the Anti-unfair Competition Law in January 2018. public official and that of an ordinary individual.
In particular, Article 7 has excluded the situation There is a specific term for public official in Chi-
where an entity offers commercial interests (eg, na, which is “state functionary”, which means
discounts) to its transaction counterparties (as persons who perform a public service in state
opposed to those transaction counterparties’ organs, state-owned enterprises and institu-
employees) even in a secret manner (eg, off the tions, and other persons who perform a pub-
book) which was previously recognised as brib- lic service according to law. The Criminal Law
ery and thus prohibited. defines the boundary of crimes related to the
bribery of a state functionary and the bribery of
an ordinary individual, and also stipulates dif-
2. Classification and Constituent ferent crimes, depending on the involvement of
Elements duty or influence of the state functionary. For
example, an individual offering bribes to a state
2.1 Bribery functionary will be convicted of the crime of
Definition of a Bribe offering bribes to a state functionary, and will
The current administrative law and criminal law be subject to criminal liabilities of up to life-time
have different definitions of bribery, and the con- imprisonment, along with confiscation of prop-
erty. With respect to the act of offering bribes to
93 CHAMBERS.COM
an executive in a private entity, it will constitute ties, advantages or other interests could poten-
the crime of offering bribes to a non-state func- tially be deemed as bribery.
tionary, and will be subject to criminal liabilities
ranging from criminal detention (a less punitive 2.2 Influence-Peddling
form of imprisonment, involving incarceration at From a criminal-law perspective, with respect
a police station for up to six months with occa- to influence-peddling practices, there are sev-
sional home visits) to imprisonment of up to eral crimes stipulated in the Criminal Law, the
ten years, along with a monetary fine where the conviction of which needs to take various con-
amount of the bribes is large. siderations into account, such as whether the
person conducting the influence-peddling is a
Bribery of Foreign Public Officials state or non-state functionary or any person who
Further, according to the Criminal Law, anyone has a close relationship with the state function-
giving any property to a functionary of a foreign ary, and the specific manifestations of the influ-
country or an official of an international public ence on decision-making. For example, any of
organisation for any improper commercial ben- the close relatives of the state functionary, or
efit will be convicted of the crime of bribery of other persons closely related to that state func-
foreign public officials and international pub- tionary, who secure illegitimate benefits for an
lic organisation officials, and will be subject to entrusting person through that state function-
imprisonment of up to ten years and a monetary ary’s performance of his or her duties or through
fine. another state functionary’s performance of his
or her duties by taking advantage of that state
Hospitality Expenditures, Gifts and functionary’s functions, powers or position, and
Promotional Expenditures, and Facilitation extort from the entrusting person or accept the
Payments entrusting person’s money or property, shall be
Hospitality and promotional expenditures would convicted of the crime of accepting bribes via
not necessarily constitute bribery if they were influence. Anyone who, for the purpose of secur-
incurred in ordinary business circumstances ing illegitimate benefits, offers bribes to any of
such as maintaining a client relationship, or the close relatives of the state functionary or
promoting products and services, and are rea- other persons closely related to that state func-
sonable in scope and accurately recorded in the tionary, or any state functionaries who have been
books and records. removed from their positions, their close rela-
tives, or other persons closely related to them,
For gifts, small advertising gifts with a value of shall be convicted of the crime of offering bribes
less than RMB200 are permitted under the Pro- to persons with influence.
visional Regulations on the Prohibition of Com-
mercial Bribery and are generally recognised by From the administrative-law perspective, influ-
the enforcement authorities in practice. ence-peddling is prohibited because it is cate-
gorised as a form of commercial bribery in viola-
There is no official definition for facilitation pay- tion of the fair-competition principle. A business
ments in China. In practice, any payment that is operator bribing the organisations or individuals
made in exchange for illegal business opportuni- who take advantage of their functional authority
or influence to impact a transaction may face a
94 CHAMBERS.COM
fine of up to RMB3 million, confiscation of illegal not necessarily involved with acts of corruption.
gains, and revocation of their business licence In addition, in accordance with the Anti-unfair
where circumstances are severe. Competition Law, where a business operator
gives a discount to its transaction counterparty
2.3 Financial Record-Keeping or pays a commission to a middleman, it shall
Inaccurate Corporate Books and Records truthfully record that discount and commission
With respect to inaccurate corporate records, the in its account books. The same requirements
Criminal Law stipulates multiple different crimes. also apply to the counterparty or middleman
For example, anyone concealing or intentionally receiving the discount or commission.
destroying account books or financial reports
that are required to be kept in accordance with Disseminating False Information
the law, if the circumstances are severe (eg, the In respect of the offences of false information
money involved is more than RMB500,000), shall dissemination, from the criminal law perspec-
be sentenced to fixed-term imprisonment of up tive, whoever fabricates and spreads false
to five years, and concurrently or separately, a information that adversely affects securities or
fine of up to RMB200,000. Entities committing futures trading, thus disrupting the securities or
the aforesaid crime shall also be fined, with the futures trading market, if the consequences are
directly accountable persons being punished. severe (eg, losses caused to investors exceed-
Moreover, if during the process of its liquida- ing RMB50,000), shall be sentenced to fixed-
tion, an enterprise records false information in term imprisonment and will have a fine of up to
its balance sheet or inventory of assets, caus- RMB100,000 imposed.
ing serious harm to the interest of the creditors
(eg, causing economic losses of more than From the perspective of administrative law,
RMB500,000), that enterprise shall be convict- the legal liabilities related to the dissemination
ed of the crime of impairing liquidation, and will of false information are mainly regulated in the
have a fine of up to RMB200,000 imposed, with Securities Law. Specifically, making use of false
its directly accountable persons to be sentenced or uncertain significant information to induce
to fixed-term imprisonment of up to five years. It investors into securities trading is strictly pro-
should be noted that the aforementioned crimes hibited as a market-manipulating practice, and
are not necessarily related to corruption, and are the violator shall be ordered to dispose of the
separately and independently stipulated under illegally held securities pursuant to the law, with
the Criminal Law. illegal gains confiscated and a fine imposed. In
the case that the aforesaid violator is a company
From the perspective of administrative law, com- or other organisation, the directly accountable
panies forging or tampering with accounting doc- persons will receive a warning and will have a
uments, account books and other accounting fine of up to RMB5 million imposed concurrent-
materials, or providing false financial account- ly. In addition, anyone disseminating fraudulent
ing reports, shall be criticised by a notice and information to disrupt the order of the securi-
may have a fine of up to RMB100,000 imposed, ties market is subject to such legal liabilities as
with its directly accountable persons subject to imposition of a fine and confiscation of illegal
a fine of up to RMB50,000. Likewise, the forego- gains concurrently.
ing legal liabilities exist independently and are
95 CHAMBERS.COM
2.4 Public Officials interests of the state and the people, the maxi-
Misappropriation of public funds by any state mum punishment will be the death penalty.
functionary as a result of taking advantage of
his or her position would result in that state Under the Criminal Law, favouritism is an aggra-
functionary being convicted of the crime of vating factor (but not an independent crime)
misappropriation of public funds. The crime of when state functionaries commit the crime of
misappropriation of public funds contains three abusing power or the crime of negligence of
specific categories – ie, (i) misappropriation of duty. The crime of abusing power refers to the
public funds for the state functionary’s own use state functionaries’ decisions on and handling of
or for conducting illegal activities, (ii) misap- matters beyond their authority in violation of the
propriating a relatively large amount of public law, and the crime of negligence of duty refers
funds for profit-making activities, and (iii) mis- to negligence of duty by state functionaries who
appropriating a relatively large amount of public are seriously irresponsible and fail to perform or
funds without returning it after the lapse of three conscientiously perform their duties. The state
months. The state functionary in question who functionaries committing the crime of abusing
is convicted of the crime would be sentenced power or the crime of negligence of duty, thus
to imprisonment of up to a term of life. Where causing heavy losses to the interests of the state
the aforesaid misappropriated funds or materials and the people, could be sentenced to fixed-
were allocated for significant public purposes, term imprisonment of up to seven years. With
such as disaster relief, emergency rescue, flood the aggravating factor of favouritism, the term
prevention and control, special care for disabled of the imprisonment could be up to ten years. In
servicemen and women and the families of revo- addition, the Criminal Law also stipulates sev-
lutionary martyrs and servicemen and women, eral crimes committed by state functionaries in
aid to the poor, migration and social relief, the specific government functions through practis-
criminal shall be given a heavier punishment. ing favouritism, such as the crime of failing to
collect or collecting insufficient tax by practising
In accordance with the Criminal Law, any state favouritism.
functionary who extorts or accepts money or
property from another person by taking advan- 2.5 Intermediaries
tage of his or her position in order to seek ben- With respect to the commission of bribery
efits for that person, or by illegally accepting through an intermediary, depending on the iden-
rebates or service charges of various descrip- tity of the intermediary and how the intermedi-
tions, would be convicted of accepting bribes. ary works, the Criminal Law generally stipulates
the following three kinds of crimes: (i) the crime
In accordance with the Criminal Law, any state of mediatory bribery, (ii) the crime of accepting
functionary who unlawfully takes public prop- bribes by using influence, and (iii) the crime of
erty into his or her possession by embezzle- introducing bribes.
ment, theft, fraud or any other means, by tak-
ing advantage of his or her position, shall be The crime of mediatory bribery is a sub-cate-
convicted of corruption; and, where the amount gory of the crime of accepting bribery, and the
involved is extremely huge (over RMB3 million) key characteristic of the former is that, when
and extremely severe losses are caused to the conducting the crime of mediatory bribery, the
96 CHAMBERS.COM
state functionary, by taking advantage of his or transaction opportunities or competitive advan-

her own powers or position, secures illegitimate tages, will be subject to administrative penalties,
benefits for an entrusting person through anoth- as this would constitute commercial bribery.
er state functionary’s performance of duties,
(instead of his or her own performance of duty).
In this regard, it should be noted that the state 3. Scope
functionary whose performance of duty has
been taken advantage of should not be aware 3.1 Limitation Period
of the existence of bribery, otherwise he or she The statute of limitation in the Criminal Law is
would also be convicted of the crime. stipulated according to the gravity of the maxi-
mum legally prescribed punishment and shall be
The crime of accepting bribery by using influ- calculated from the date when the crime is com-
ence is an independent crime, the key charac- pleted. The maximum period is 20 years which
teristic of which is that the person accepting the shall apply to crimes for which the maximum
bribery is not a state functionary but the state legally prescribed punishment is life imprison-
functionary’s close relative or any other person ment or the death penalty. For example, for the
who has a close relationship with that state func- crime of offering bribery to a state functionary,
tionary. As a person who has a close relationship the period is further divided into three grades:
with the state functionary, by using his or her five years, ten years, and 20 years, depending
influence, the perpetrator seeks improper ben- on the maximum legally prescribed punishment.
efits through the performance of any duty of the Expiry of the limitation period does not render
state functionary or any other state functionary. prosecution entirely impossible. For example, for
a crime for which the maximum statutory pun-
The crime of introducing a bribe is also an inde- ishment is life imprisonment or the death pen-
pendent crime. Whoever introduces a bribe to a alty, even if 20 years have elapsed, the crimi-
state functionary, if the circumstances are seri- nal suspect may still be prosecuted upon the
ous, shall be sentenced to fixed-term imprison- approval of the Supreme People’s Procurator-
ment of not more than three years or criminal ate. In addition, where a criminal suspect com-
detention. In practice, where the intermediary is mits a new crime after the occurrence of a crime
neither a state functionary, nor one who has a but before the expiry of the limitation period, the
close relationship with the state functionary, he limitation period of the former crime shall also
or she would be convicted of the crime of intro- be re-calculated from the date of the new crime.
ducing bribery by introducing and facilitating a Under circumstances where a criminal suspect
bribery-related transaction. escapes after the case is filed by relevant judicial
authorities or where a victim brings a complaint
From the perspective of administrative law, against a criminal suspect, the limitation period
explicitly paying the intermediary a commission shall not apply.
which has been truthfully recorded into account
books does not fall within the scope of commer- From the perspective of administrative law,
cial bribery. However, anyone who offers bribery where an act in violation of the administrative
to a third party who has influence on the trans- law is not discovered within two years from the
action counterparty, for the purpose of seeking
97 CHAMBERS.COM
date when the illegal act is ended, no administra- cally, whether it is the company’s decision to
tive penalty shall be imposed. conduct the bribery), the possession of illegal
gains, and whether the bribes are offered in the
3.2 Geographical Reach of Applicable name of the company or the individual employ-
Legislation ee. If the charge is raised against the individual
The Criminal Law mainly adopts the principle of employee, the company would not bear legal
territorial jurisdiction over criminal offences, sup- liabilities. However, if the charge is against the
plemented by extra-territorial jurisdiction in cir- company as a unit crime, the so-called “dual
cumstances where the perpetrator is a Chinese punishment system” would apply – ie, not only
citizen or a foreign national commits a crime would a monetary penalty be imposed on the
against China or a Chinese citizen. Article 10 of company, but also the main responsible persons
the Criminal Law stipulates the principle of Pas- (ie, the legal representative, and other persons
sive Recognition of Foreign Criminal Judgments, in charge) could be subject to criminal detention
stating that any Chinese citizen who commits or imprisonment.
a crime outside the territory of China may still
be investigated for his or her criminal liabilities The administrative enforcement differs, as there
under Chinese laws, even if he or she has already is a default mechanism in place; namely, that
been tried in a foreign country. However, if he or the acts of bribery committed by a company’s
she has already received criminal punishment in employees shall be deemed as the acts of the
the foreign country, he or she may be exempted company, unless the company has evidence to
from punishment or given a mitigated punish- prove that such acts of its employees were not
ment. Article 8 further specifies the principle of made in search of transaction opportunities or
Protective Jurisdiction, indicating that the Crimi- competitive advantages for the company. Fur-
nal Law may be applicable to any foreigner who thermore, under the newly revised Administra-
commits a crime outside the territory and territo- tive Penalty Law, where the company concerned
rial waters and space of China against China or has sufficient evidence to prove that it has
against any Chinese citizens, if, for that crime, committed no subjective fault, no administra-
this Law prescribes a minimum punishment of tive penalty shall be imposed on the company.
fixed-term imprisonment of not less than three Only the company would have administrative
years; however, this does not apply to a crime liabilities imposed on it, including a fine ranging
that is not punishable according to the laws of from RMB100,000 to RMB3 million, confiscation
the place where it was committed. of illegal gains, and revocation of its business
licence where circumstances are severe.
There is generally no extra-territorial application
from an administrative law perspective. With respect to whether the corporate’s legal
liabilities will be pursued when it is merged or
3.3 Corporate Liability divided after committing an offence, on the crim-
On a criminal level, bribery committed by an inal level, as long as an entity that assumes the
employee of a company could be deemed rights and obligations of that predecessor entity
as either an individual crime or a unit crime, exists, the criminal liability of the predecessor
depending on various factors, including whether entity and the relevant responsible persons shall
the company is engaged in the bribery (specifi- still be pursued. The predecessor entity shall still
98 CHAMBERS.COM
be listed as the defendant, and the legal repre- cies for substantiating commercial bribery
sentative or the person chiefly in charge of the mainly focus on (i) whether there is any lure of
new entity that succeeds the rights and obliga- improper interests, and (ii) whether there is any
tions of the predecessor entity shall be the litiga- illegal purpose to obtain business opportunities
tion representative. As for the successor entity, it or competitive advantages. The key for differ-
shall bear the criminal liability of the predecessor entiating between legitimate interests exchange
entity to the extent of the property it inherited. and inducement for illegitimate interests lies in
whether the interests exchanged have potential
In terms of administrative liability, the general influence on fair competition in the market, or the
principle may be found in the Implementation interest and benefits of the consumers. Notably,
Regulations of the Customs of the People’s the Anti-unfair Competition Law adopts the new
Republic of China on Administrative Penalties, method of listing all the possible scenarios of
which specifies that the predecessor entity shall the statutory bribery-receiving parties, including
be the liable subject, and the successor entity (i) “employee of a transaction counterparty”, (ii)
that assumes the rights and obligations shall “any entity or individual entrusted by the coun-
be the person subject to the property penalty. terparty”, and (iii) “any entity or individual that is
Based on law-enforcement practice, this princi- likely to take advantage of powers or influence to
ple may also be applicable in other areas. affect a transaction”, and that in its literal mean-
ing excludes the counterparty itself as the brib-
ery-receiving party. Therefore, considering the
4. Defences and Exceptions above-mentioned, the corresponding defences
for the company could be based on the nature
4.1 Defences of the bribery-receiving party, the non-existence
For the criminal offence of bribery, the Criminal of the exchange of illegitimate interests, and the
Law explicitly stipulates that any person who lack of potential influence on fair competition or
provides benefits to a state functionary as a consumer’s interests. In addition, another possi-
result of extortion by the state functionary, and ble defence for the company could be sustained
does not obtain an undue advantage, would not in the Anti-unfair Competition Law if a compa-
be criminalised for bribery. In addition, any briber ny has evidence to prove that such acts of the
who, before he or she is investigated for criminal employee are irrelevant to seeking transaction
liabilities, voluntarily confesses his or her act of opportunities or competitive advantages for the
offering bribes may be given a mitigated punish- company, and under the newly revised Admin-
ment or be exempted from punishment. Even istrative Penalty Law where a company has evi-
without voluntary surrender, as previously men- dence to prove that it has no subjective fault.
tioned, a criminal suspect who truthfully con-
fesses his or her crimes may be given a lighter 4.2 Exceptions
penalty and may be given a mitigated penalty if Although under the Anti-unfair Competition Law,
any extremely severe consequence is avoided the counterparty of a transaction does not fall
due to his or her truthful confession. into the scope of the bribery-receiving party, due
to the stricter requirements in some industry-
In a commercial context, the criteria commonly specific laws and regulations such as the Drug
used by the administrative enforcement agen- Administration Law, offering unlawful interests
99 CHAMBERS.COM
to the counterparty, such as offering interests to employees is not related to seeking transaction
public hospitals by a pharmaceutical company, opportunities or competitive advantages for the
could still be deemed as bribery. company. However, no specified regulations or
judicial interpretations regarding what evidence
In respect of voluntary surrender or confession would be most valid have been made available.
of one’s crimes, the court is also empowered In practice, some multi-national and local com-
not to mitigate the penalty in the case that the panies have already implemented compliance
circumstances of the crime are severe or even programmes and preventive measures such
flagrant. as providing regular compliance training and
requiring employees’ written compliance com-
4.3 De Minimis Exceptions mitment letters in preparation for any potential
The Criminal Law sets forth the threshold for legal liability concerns. Furthermore, it has been
prosecuting bribery and corruption offences. For suggested by the enforcement authorities that, if
example, the threshold amount for bribing a non- a business operator has formulated legal, com-
state functionary is RMB60,000 (USD8,500), and pliant and reasonable measures, and has taken
the threshold amount for bribing a state func- effective measures for supervision, and does not
tionary is RMB30,000 (USD4,250). connive at the staff’s bribery, or do so in a dis-
guised form, the company could be relieved of
In comparison, the Anti-unfair Competition Law legal liabilities.
does not stipulate the threshold of the bribery
amount. One relevant exception is in regard to Since March 2020, the Supreme People’s Procu-
small advertising gifts that are permitted by the ratorate has been promoting pilot programmes
Provisional Regulations on the Prohibition of on corporate compliance reforms, including
Commercial Bribery, which are usually worth less “non-arrest based on compliance”, “non-pros-
than RMB200 in practice. Other than that, Arti- ecution based on compliance”, and “leniency
cle 83 of the Discipline Rules for the Communist application based on pleading guilty”. In the
Party of China stipulates that payment, cash, or pilot regions, the People’s Procuratorates can
shopping cards that might potentially influence conduct compliance visits to the companies
their execution of duty would be strictly prohib- involved in the case, reach compliance supervi-
ited, which seems to set aside an exception for sion agreements with the companies, request
such a payment in a relatively small amount, with the companies to establish or improve their
less likelihood of it being deemed as bribery. compliance systems within a certain period of
time, and review and evaluate the results. Based
4.4 Exempt Sectors/Industries on the circumstances of the case and the results
There are no sectors or industries exempt from of the review, the People’s Procuratorates would
the aforementioned offences. determine whether to arrest, prosecute or pro-
pose a lighter punishment.
4.5 Safe Harbour or Amnesty Programme
According to the Anti-unfair Competition Law, According to a representative case issued by
the bribery of employees of a company shall the Supreme People’s Procuratorate, the sales
be deemed as the act of the company, unless team of a company in Shenzhen was investi-
there is evidence to prove that the bribery of gated for having committed bribery in order to
100 CHAMBERS.COM
gain advantage for a transaction. The People’s property. Similarly, for crimes committed by an
Procuratorate signed a compliance supervision entity, a fine is imposed on the entity itself and
agreement with the company and issued a deci- criminal detention is imposed on its responsible
sion not to prosecute the company’s principals. persons.
The company subsequently carried out a series
of actions to establish and improve compliance 5.2 Guidelines Applicable to the
systems under the supervision of the People’s Assessment of Penalties
Procuratorate. The guidelines to assess criminal liability are
mainly based on the provisions of the Criminal
Law and relevant judicial interpretations, while,
5. Penalties in respect of administrative liability, the assess-
ment guidelines are mainly based on the dis-
5.1 Penalties on Conviction cretion benchmark for administrative penalties
From the perspective of administrative law, formulated by each province and municipality.
where a business operator bribes any other
party in violation of the Anti-unfair Competition For the same crime, the Criminal Law usually
Law, the supervision and inspection authority stipulates multiple levels of punishment (with
shall confiscate its illegal gains, and impose on minimum and maximum sentences for each
it a fine of between RMB100,000 and RMB3 level) according to the gravity of the circum-
million. Where the circumstance is severe, its stances – ie, ordinary circumstances, severe
business licence shall be revoked. Moreover, circumstances and extremely severe circum-
there is a general article in the Anti-unfair Com- stances. Judicial interpretations would provide
petition Law stipulating that business operators the details for the level of gravity. To take bribery
that have caused damages to others shall be as an example, the Criminal Law stipulates that
subject to the civil liabilities, but without any anyone who commits the crime of offering bribes
further specification of the details. Unlike other shall be sentenced to fixed-term imprisonment
jurisdictions such as the United States where of not more than five years or criminal deten-
the enforcement authorities would implement tion, with a fine; if illegal gains are obtained and
the civil penalties on the offenders, civil conse- the circumstances are severe, or severe loss is
quences in China are generally resolved through caused to the interests of the State, he or she
civil disputes where the aggrieved party of the shall be sentenced to fixed-term imprisonment
bribery could bring a lawsuit in court or use other ranging from five to ten years and a fine; if the
alternative dispute-resolution channels. circumstances are extremely severe, or the
State has suffered extremely severe loss in its
From the perspective of criminal law, there are interests, he or she shall be sentenced to fixed-
ten different crimes regarding commercial brib- term imprisonment of more than ten years or
ery stipulated in the Criminal Law, with corre- life imprisonment, a fine, and confiscation of his
sponding criminal penalties for each one. In or her property concurrently. Further, the judi-
sum, the consequences of crime include depri- cial interpretation provides the determining fac-
vation of liberty and property. For individuals, the tors for “severe circumstances” and “extremely
consequences include criminal detention or life severe circumstances”, which mainly refer to the
imprisonment, as well as fines or confiscation of amount of the bribes offered.
101 CHAMBERS.COM
In addition, the Criminal Law also stipulates 6. Compliance and Disclosure

the application of heavier or lighter punishment
within the limits of the prescribed punishment. 6.1 National Legislation and Duties to
For example, the judicial interpretation considers Prevent Corruption
factors such as offering bribes to three or more Early in June 2017, the Shenzhen municipal gov-
persons or offering bribes to judicial functionar- ernment published the Shenzhen Standard for
ies to impact judicial decisions as aggravated Anti-Bribery Management Systems (the “Shen-
circumstances, and applies a heavier punish- zhen Standard”) as a recommended practice.
ment accordingly. Also, voluntary confession of The Shenzhen Standard was drafted based on
a crime and adoption of measures actively to ISO 37001 Anti-bribery Management Systems,
reduce the losses caused by the crime would developed by ISO technical committee ISO/TC
generally be seen as factors for considering a 309. The recommended elements of an effective
lighter punishment. corporate compliance programme include due
diligence on third parties, financial and opera-
As for the administrative punishment, many tional internal control, standardisation on the
provinces and cities have formulated their local gift and entertainment policies, management of
administrative punishment discretion bench- business partners, an effective reporting mecha-
mark within the scope of administrative punish- nism, a proper investigation process, a crisis-
ment stipulated by laws and regulations. Taking management process, and corrective measures
Shanghai Municipality as an example, at the for discovered issues.
beginning of 2020, the Shanghai Administration
for Market Regulation (AMR) issued the Stand- In November 2018, the State-Owned Assets
ards and Factors to Assessing and Determin- Supervision and Administration Commission of
ing Administrative Penalty in Market Regulation the State Council (SASAC), which is the govern-
Enforcement (the “Standards”), which provides ing authority for all state-owned enterprises in
practical metrics on how to determine the level China, released a compliance guidance for all
of an administrative penalty to an individual and state-owned enterprises governed by the central
an entity violating the Anti-Unfair Competition government. Although the compliance guidance
Law and other laws that the AMR is responsible applies primarily to state-owned enterprises
for enforcing. The Standards set out three levels governed by the central government, other com-
of administrative penalty – ie, low, middle, and panies can also use it as a primary reference
high. A few factors are taken into account when for establishing sound compliance systems. A
the AMR evaluates the penalty level, including wider range of compliance issues are identified
the number of recipients accepting bribes and as the key focuses, including anti-corruption
the times of that bribery, the duration of ille- and bribery, anti-unfair competition and the like.
gal acts, the amount of bribery or transaction The compliance guidance also outlines specific
amount involved, whether such bribery is sub- requirements for policy development, the estab-
ject to the risk of causing personal or property lishment of risk identification and response sys-
damage, and the impact on the whole society. tems, audits, accountability, compliance train-
ing, compliance assessment and continuous
improvement.
102 CHAMBERS.COM
Subsequently in August 2022, the SASAC violations of anti-bribery and anti-corruption

released the Measures for Compliance Man- provisions. However, if there are administra-
agement of State-Owned Enterprises Governed tive or criminal investigations initiated against
by the Central Government which constitutes a listed company, the Securities Law and the
a compulsory legal regulation. Compared with Administrative Measures on Information Dis-
the aforementioned compliance guidance, it closure by Listed Companies stipulates explicit
indicates the importance of several aspects, information-disclosure obligations. In addition,
including the enhancement of the leadership the listed company shall disclose and state the
of the CPC, adjustment of the organisation and cause, the current status, and the likely effect of
responsibilities regarding compliance manage- the event in a timely manner.
ment, development of a sound compliance man-
agement system, establishment of an overall 6.4 Protection Afforded to Whistle-
operating mechanism integrating compliance Blowers
and legal management, internal control and For the protection of whistle-blowers, some
risk management, etc. It is noteworthy that the specific rules such as the Rules of the Supreme
promulgation of this regulation could be deemed People’s Procuratorate on Protecting the Citi-
to be in line with relevant international standards zens’ Tip-Off Rights were formulated to provide a
such as ISO 37301:2021 Compliance manage- comprehensive mechanism from both substan-
ment systems — Requirements with guidance tial and procedural levels. Enforcement authori-
for use. ties are required to keep confidential the identity
of the whistle-blowers throughout the reporting
The Criminal Law and administrative regulations handling process. In addition, the authorities are
do not provide specific legal consequences for required to take measures to ensure the safety
failure to prevent bribery. Nevertheless, if brib- of the whistle-blower and their close relatives
ery occurs, it would be subject to corresponding whenever and wherever necessary. Retaliation
legal liabilities as previously discussed. against the whistle-blowers is entirely prohibited
by law, and legal liabilities such as administrative
6.2 Regulation of Lobbying Activities punishment, criminal detention or imprisonment
This is not applicable in China. can be imposed.
6.3 Disclosure of Violations of Anti- 6.5 Incentives for Whistle-Blowers

bribery and Anti-corruption Provisions On 9 April 2016, the Supreme People’s Procu-
From the perspective of criminal law, accord- ratorate, the Ministry of Public Security and
ing to the Criminal Procedure Law, any entity or the Ministry of Finance jointly issued the Sev-
individual, upon discovering the facts of a crime eral Provisions on the Protection and Reward
or a criminal suspect, shall have a duty to report of Whistle-Blowers of Duty-Related Crimes
the case or provide information to a public secu- (the “Provisions”), improving the protection and
rity organ, a people’s procuratorate or a people’s reward system for real-name whistle-blowers
court. of duty-related crimes. According to the Pro-
visions, rewards for whistle-blowers of duty-
From the perspective of administrative law, there related crimes shall be granted by the People’s
is no explicit requirement for self-disclosing the Procuratorates. Generally, the amount of reward
103 CHAMBERS.COM
for each case shall not exceed RMB200,000; 6.6 Location of Relevant Provisions
where the informant has made significant con- Regarding Whistle-Blowing
tributions, upon approval, a reward of more than The provisions regarding whistle-blowing can be
RMB200,000 (but not exceeding RMB500,000) found in the Constitution, the Criminal Proce-
may be granted. Where the informant has made dure Law, the Anti-unfair Competition Law, the
particularly significant contributions, upon Rules of the Supreme People’s Procuratorate
approval of the Supreme People’s Procurator- on Protecting the Citizens’ Tip-Off Rights, and
ate, the amount of reward shall not be limited by Several Provisions on the Protection and Reward
the aforementioned amount. of Whistle-Blowers of Duty-Related Crimes and
the Interim Measures for Rewards for Whistle-
On 30 July 2021, the State Administration for blower Reports of Major Violations in the Field
Market Regulation and the Ministry of Finance of Market Regulation.
jointly issued the Interim Measures for Rewards
for Whistle-blower Reports of Major Violations in
the Field of Market Regulation (the “Measures”) 7. Enforcement
to improve the system of rewarding whistle-
blowing against major violations in the market 7.1 Enforcement of Anti-bribery and Anti-
regulation field. The Measures took effect on 1 corruption Laws
December 2021. According to the Measures, There is criminal and administrative enforcement
rewards for whistle-blowing against major viola- of anti-bribery and anti-corruption in China; civil
tions in the market regulation field shall be given prosecution of such offences is not applicable
by market regulatory authorities at all levels. The in China.
rewards for whistle-blowing are classified into
three grades, based on the facts of the viola- 7.2 Enforcement Body
tion, relevant evidence, consistency between the From the perspective of administrative law,
content of the whistle-blowing and the facts, as offences with respect to bribery and corrup-
well as severity of the whistle-blowing matters. tion are mainly investigated and penalised by
Whistle-blowers would to be rewarded with 1%, the State Administration for Market Regula-
3% and 5% of the confiscated fines respectively, tion (SAMR). The SAMR was established on
depending on the grade. For cases without fines 21 March 2018, and merges and undertakes
or confiscated funds, the amounts of rewards the responsibilities previously held by multiple
from Grade I to Grade III shall not be less than authorities.
RMB5,000, RMB3,000 and RMB1,000 respec-
tively. For any matter reported by employees, the From the perspective of criminal law, illegal
reward criteria may be increased corresponding- acts not involving state functionaries shall be
ly. The upper limit of the reward for whistle-blow- investigated and handled by the Public Security
ing for each case is RMB1 million. Compared Bureau (PSB) and transferred to the prosecution
with the Provisions issued on 9 April 2016, the department of the People’s Procuratorate (the
Measures increases the amounts of rewards for “Procuratorate”) for prosecution. Criminal cas-
whistle-blowing to encourage the public further es involving state functionaries were previously
actively to report major violations. investigated and prosecuted by the Procurator-
ate (of which the anti-corruption division shall be
104 CHAMBERS.COM
responsible for investigations, and the prosecu- prescribed in the Criminal Law. For example,
tion division shall be responsible for prosecu- Article 164 of the Criminal Law provides that
tion), whilst the authority for criminal investiga- any briber who confesses the bribery voluntarily
tion has been transitioned to the Supervisory prior to prosecution may be given a mitigated
Commission in accordance with the Supervision punishment or be exempted from punishment.
Law that entered into force on 20 March 2018,
with the prosecution duty still being performed For administrative cases, Article 32 of the Admin-
by the Procuratorate. istrative Penalty Law provides that any party who
eliminates or reduces the harmful consequences
It is worth noting that, for the same miscon- of the illegal behaviour, was coerced or tricked
duct committed by a company, the criminal and by others to commit illegal acts, confesses the
administrative regimes are mutually exclusive. illegal behaviour voluntarily, or has performed
The regulatory framework for the conversion meritorious service, may be given a mitigated
between administrative and criminal cases is punishment or be exempted from punishment.
established by the Regulations on the Transfer
of Suspected Criminal Cases by Administrative 7.5 Jurisdictional Reach of the Body/
Law Enforcement Agencies and other relevant Bodies
regulations. According to these regulations, Investigation in criminal cases shall be conduct-
while investigating an administrative case, if the ed by the PSB, except for a case regarding a
administrative agency suspects that the case crime committed by a state functionary, by tak-
should be prosecuted as a criminal case, based ing advantage of his or her functions, and will
on the required elements, such as the amount be investigated by the Supervisory Commission
involved and the conduct patterns or the conse- according to the Criminal Law and the Supervi-
quences, the case must be transferred to a PSB sion Law.
and the PSB will examine the cases transferred.
Likewise, if a PSB discovers that a case should With respect to the administrative cases, the
not be criminally prosecuted but may be poten- investigation shall be generally conducted by the
tially subject to administrative liability, it shall Administration for Market Regulation of county
transfer the case to the relevant administrative level and above. However, for administrative vio-
agency for further investigation and handling. lations involving state functionaries, they shall
also be investigated by the Supervisory Com-
7.3 Process of Application for mission in accordance with the Supervision Law.
Documentation Other industrial supervision authorities such as
This is not applicable in China. the China Banking and Insurance Supervision
and Regulatory Commission are empowered
7.4 Discretion for Mitigation with the investigating powers for specific indus-
Article 67 of the Criminal Law generally encour- tries that do not involve state functionaries.
ages self-reporting of criminal activity by stip- Unless the violation is escalated to criminal level
ulating mitigation or even exemption from the upon investigation, it will not involve any further
criminal penalties under voluntary confession prosecution process.
circumstances. Similar principles and approach-
es may also be found in some other provisions
105 CHAMBERS.COM
7.6 Recent Landmark Investigations or • promote the investigation of the offer and
Decisions involving Bribery or Corruption acceptance of bribes at the same time;
Over the past few years, as regularly reiterated • make full use of reporting clues;
by China’s top leadership, China has had zero • timely transfer those clues for the rectification
tolerance for corruption and bribery, and anti- of malpractice found in the work to relevant
corruption has been and will be a key area for disciplinary, inspection and supervisory bod-
law enforcement. ies and judicial organs; and
• therefore, accelerate the connection of imple-
The Sixth Plenary Session of the 19th Central menting regulations, disciplines, and laws.
Commission for Discipline Inspection reaffirmed
the importance of maintaining a strong and per- 7.7 Level of Sanctions Imposed
sistent crackdown on corruption. The impor- From the criminal law perspective, based on
tance of the following actions and sectors was the relevant statistics, the average length of
explicitly emphasised: investigating and pun- a sentence for the crime of offering bribes in
ishing corruption in infrastructure construction the healthcare industry ranges from probation
and public resource transactions, continuously to imprisonment of up to ten years. The aver-
promoting corruption governance in the finan- age sentence for the crime of offering bribes to
cial sector, deepening anti-corruption efforts non-state functionary ranges from probation to
in state-owned enterprises, and strengthening imprisonment of up to three years. For the crime
special rectification of corruption in areas such of offering bribery by an entity, the majority of
as grain purchase and sales. In addition, it was the persons in change would have probation
recommended that the implementation of a imposed upon them and the minority would be
“blacklist” system for bribe-offerors be explored. sentenced to criminal detention or imprisonment
The enhancement of international co-operation of up to five years.
was also mentioned in this plenary session.
From the administrative law perspective, the
Notably, based on the published criminal judg- sanctions imposed on companies in the health-
ments from 2013 to 2019, there were more than care industry, for example, have usually included
3,000 cases against perpetrators in the health- a fine ranging from RMB100,000 to RMB3 million
care industry. In May 2022, the National Health and confiscation of illegal gains. Revocation of
Commission, the Ministry of Industry and Infor- a business licence is rarely imposed in practice.
mation Technology, the Ministry of Public Secu-
rity and the other six central government authori-
ties jointly issued the Notice on the Issuance of 8. Review
Work Points for Correcting Unhealthy Practices
in the Field of Medical Purchases and Sales and 8.1 Assessment of the Applicable
in Medical Services in 2022 (the “Notice”). The Enforced Legislation
Notice clearly proposes to crack down on illegal Each year, the Supreme People’s Court and the
activities in all aspects of “manufacturing, sales, Supreme People’s Procuratorate issue a work-
marketing and use” of medical products. As is ing report to the National People’s Congress,
reiterated in the Notice, it is imperative to: which includes a summary of the number of
106 CHAMBERS.COM
anti-corruption cases and focus of their work in bribery. For example, before the revision of the
the previous year. Anti-unfair Competition Law in 2018, the Interim
Provisions on Prohibition of Commercial Bribery
According to the publicly available working (the “Interim Provisions”) was another important
reports issued throughout the past few years, the legal authority in enforcement actions. However,
general trend of anti-corruption law enforcement after the revision in 2018, the Anti-unfair Com-
has been to maintain a high-handed attitude to petition Law now takes a different approach in
punish corruption and accurately to reflect the determining commercial bribery, with conflicting
criminal policy of combining punishment with articles against the Interim Provisions. In order
leniency. In terms of legislation, importance will to resolve such conflicts in different pieces of
be attached to the mechanism for the connec- legislation, the SAMR has included the revision
tion between national supervision and criminal of the Interim Provisions in the legislative plan
justice, and the working mechanism for the com- in 2019, but this has not yet been promulgated.
mutation, parole and temporary serving of the
sentence outside prison for duty-related criminal In addition, more detailed implementing rules for
offenders will be improved, in order to put an end the Anti-unfair Competition Law, as well as spe-
to under-the-table operations. In terms of judicial rules for respective industries, are expected
cial decisions, punishment of bribery crimes by to be formulated by national and local authori-
applying the procedure of confiscation of illegal ties to resolve the issues identified during the
gains and life imprisonment will be intensified. In enforcement actions.
addition, attention will be paid to cases involv-
ing people’s livelihoods, such as embezzlement Notably, the Supreme People’s Procuratorate
and land-requisition compensation, subsidies is continuing to promote pilot programmes on
for dilapidated houses and subsidies for agri- corporate compliance reforms, which will help to
cultural supplies. alleviate the risk of criminal liabilities for a com-
pany if it adopts a robust and effective compli-
8.2 Likely Changes to the Applicable ance programme. Furthermore, it is expected
Legislation of the Enforcement Body that such a system would be incorporated into
The main legislation efforts that are foresee- the legislation plan once the pilot programmes
able should be reducing inconsistencies among have been completed successfully and the relat-
relevant laws and regulations on commercial ed framework takes shape.
107 CHAMBERS.COM
Global Law Office dates back to the establish- enced in meeting all aspects of public and pri-
ment of the Legal Consultant Office of China vate enterprises’ regulatory compliance needs,
Council for the Promotion of International Trade including risk assessment, compliance policy,
(CCPIT) in 1979, when it became the first Chi- reporting, training and investigation. The firm
nese law firm ever approved by the PRC gov- has resolved dozens of government investiga-
ernment and has retained the privilege of cli- tion cases relating to anti-corruption, antitrust,
ents’ trust in various areas over four decades. promotion and advertising, insider trading, and
The firm has offices in Shanghai, Beijing, Shen- food and drug safety by the Chinese authorities,
zhen and Chengdu, with 160 partners and over as well as cross-border investigations in multi-
600 lawyers across China. The firm is experi- ple jurisdictions.
Authors
Alan Zhou is a partner at Global Jacky Li is a partner at Global
Law Office, based in Shanghai. Law Office based in Shanghai,
His practice is focused in the focusing his practice in the
areas of general corporate, areas of regulatory compliance,
transactions, compliance and internal and government
risk control. As an expert on investigations, risk control,
legal issues surrounding compliance and M&A competition law and dispute resolution. He is
in China, Mr Zhou has extensive experience in well versed in handling complex compliance
solving complex and challenging issues and investigations/projects in connection with
advising on creative and strategic solutions. He anti-corruption, antitrust, white-collar crime,
has a particularly strong background in the life data and cybersecurity, assisting multinational
sciences and healthcare industries. As a and Chinese state-owned enterprises in
participant or as an external counsel, Mr Zhou identifying potential wrongdoers, assessing
has been engaged by local authorities and parameters of legal liability, and interacting
industrial associations for advice on legislation with multi-jurisdiction government authorities.
and industrial standards related to online Mr Li is a certified fraud examiner of the US
hospitals, digital marketing, medical insurance ACFE, a certified expert of the UK Law
reform, medical representative management, Reviews Expert Panel, and a standing member
and other compliance matters. of the Shanghai Bar Association Law and
Compliance Committee.
108 CHAMBERS.COM
Weiwei Gu is a partner at Global Jenny Chen is an of counsel at

Law Office, based in Shanghai. Global Law Office, based in
His main practice areas include Shanghai, mainly focusing her
dispute resolution, compliance, practice on compliance,
antitrust and employment. Mr government investigations,
Gu has dealt with hundreds of internal investigations and data
cases in the area of commercial dispute security. Ms Chen is well-versed in conducting
resolution. He assists both multinational investigations into anti-corruption, the FCPA,
enterprises and major Chinese enterprises, data falsification, financial frauds, occupational
such as IFC, Deutsche Bank, Standard embezzlement, self-dealing and trade secrets,
Chartered, BNP, UBSS, and CDB Capital. Mr from Chinese and relevant foreign-law
Gu has rich experience in government perspectives. She has extensive experience in
investigations, particularly regarding anti- cybersecurity and data compliance, assisting
corruption and antitrust matters. He also numerous large enterprises in identifying and
advises his clients on regulatory matters such responding to potential cybersecurity risks and
as conducting internal investigations and incidents, establishing data compliance
developing risk-control procedures. He has management systems and structures. She has
particular experience in labour and handled multiple large-scale projects in
employment law. e-discovery, cross-border data protection and
security, and sensitive information review,
providing sophisticated and comprehensive
Steven Zhu is a partner at compliance solutions to clients.
Global Law Office, based in
Beijing. He focuses his practice
on cross-border M&A,
compliance and regulatory, and
media and entertainment. Mr
Zhu has extensive experience in assisting a
variety of multinational companies and major
Chinese companies in structuring and
negotiating cross-border transactions, such as
foreign direct investment (including inbound
into and outbound from China), JVs and VC/PE
investments. He routinely advises multinational
companies and major Chinese companies on a
variety of compliance and regulatory matters,
including anti-corruption (eg, FCPA and PRC
anti-bribery laws) and the World Bank Sanction
System.
109 CHAMBERS.COM
Global Law Office

35th, 36th Floor, One ICC
Shanghai ICC 999
Middle Huai Hai Road
Xuhui District
Shanghai 200031
PRC
Tel: +86 21 2310 8211

Fax: +86 21 2310 8299
Email: Alanzhou@glo.com.cn
Web: www.glo.com.cn
110 CHAMBERS.COM
CHINA Trends and Developments
Trends and Developments

Contributed by:
Michelle Gon
Han Kun Law Offices see p.113
Recent Enforcement Trends in PRC as the focus shifts to prohibiting bribery in its
Compliance Practice entirety by penalising both the offer and accept-
Several ongoing trends this year that might ance of bribes.
have a significant impact on companies doing
business in China are of particular note in the As highlighted in the Notice by the National
anti-corruption space. Multinational companies Supervisory Commission and the Supreme
(MNCs) should be cautious regarding adoption People’s Procuratorate of Issuing Model Cases
of compliance programmes in China, localisation Involving Crimes of Offering Bribes, published
often means much more than simply translat- on 31 March 2022, the offering of bribes can
ing headquarters-issued manuals or codes of be punished by imprisonment, fines, forfeiture
conduct; rather, it must be tailored to be cohe- of illegal gains, and the suspension of future
sive with local laws and customs. A coherent bidding rights in government procurement pro-
compliance programme should be integral to grammes.
the business entity from top to bottom and not
scattered across multiple departments that may Non-prosecution pilot programme for
have conflicting interests or procedures. corporate compliance
The Supreme People’s Procuratorate started
Penalties for both offering and accepting a pilot programme for the non-prosecution of
bribes corporate compliance matters in 2020 for select
Many MNCs have experience with the US For- cities. After two years of trials, it has recently
eign Corrupt Practices Act (FCPA), UK Bribery been announced that the pilot programme shall
Act, the French Saipan Act, etc, and formu- be scheduled for widespread adoption in China.
late their compliance programmes accordingly.
However, unlike FCPA enforcement, PRC crimi- The pilot programme offers leniency or non-
nal law targets both the briber and the bribed prosecution of minor offences provided that the
recipients who may or may not be government companies involved plea for leniency through
officials. Additionally, the PRC Anti-unfair Com- admission of the offences, along with instituting
petition Law includes administrative sanctions procedures or programmes that ensure future
on both commercial bribes offered to govern- compliance, such as retaining third-party audi-
ment officials and private sector bribes or kick- tors to supervise the implementation of such
back receivers. programmes. This leniency pilot programme
may pave the way for companies that could oth-
Traditionally, PRC law enforcement has prac- erwise find their IPO dreams wrecked by criminal
tised a policy of being lenient on the offeror of convictions on non-compliance matters.
bribes to encourage co-operation in the inves-
tigation of bribery crimes involving government
officials; however, this may no longer be the case
111 CHAMBERS.COM
Contributed by: Michelle Gon, Han Kun Law Offices
Mandatory compliance programmes for ductor manufacturing in China. Perhaps the

state-owned enterprises most shocking change is the prohibition of US
The State-Owned Assets Supervision and persons supporting such commercial projects.
Administration Commission has recently pub- Currently, it is unclear how the BIS intends to
lished the Measures for the Compliance Man- implement such permit programmes for US per-
agement of Central Enterprises, effective from 1 sonnel already working in China.
October 2022. The measures require all central
state-owned enterprises to implement compli- Major US semiconductor equipment manufac-
ance programmes that become integral to busi- turers have significant business interests in Chi-
ness management and for general counsels to na; however, they have suspended equipment
serve concurrently as chief compliance officers. support operations in China following the BIS
Following the requirement at the national level, announcement on October 7, 2022. Their stock
this trend will likely trickle down to local levels, prices have fallen significantly since. Some US
provincial and municipal state-owned enter- semiconductor manufacturers have responded
prises as well as private enterprises have also by creating specific products for the PRC market
adopted compliance programmes. by lowering technical specifications.
Continuing to combat corruption It is also unclear how China will respond. Previ-
After the conclusion of the 20th National Con- ously, China has promulgated data protection
gress of the Chinese Communist Party, the Chi- laws and the Anti-Foreign Sanctions Law which
nese government reaffirmed its efforts to combat may create extra challenges for multinational
corruption and it has continued to proceed with corporations operating in China and attempt-
several high-profile cases such as the arrest of ing to ensure compliance in both countries.
Shanghai’s chief prosecutor and the removal For example, if a PRC entity wishes to comply
of the deputy governor of the People’s Bank of with BIS on-site audit requests to be removed
China. from the Unverified List, it may find itself pitted
against the Data Security Law and other national
The Central Commission for Discipline Inspec- security concerns raised by various PRC gov-
tion (CCDI) of the Chinese Communist Party ernment agencies. Trying to navigate through
has released rules for permanently integrating these legal minefields between multiple com-
CCDI investigators in government agencies in peting jurisdictions or authorities would likely
June. Multiple provinces and municipalities have require local expertise working together with the
responded that they will fully co-operate with impacted entity.
CCDI investigations and will actively conduct
retrospective reviews of previous officials, going In sum, compliance is becoming a more impor-
back up to 30 years. tant area, not just for MNCs doing business in
China, but also for Chinese companies, whether
Tighter US export control policies and or not they are state-owned. Becoming more
possible PRC countermeasures transparent and cleaner in the business arena
The Bureau of Industry and Security (BIS) will reduce corruption and unfair business prac-
announced new measures to tighten export tices and so safeguard a fair competition envi-
control on advanced computing and semicon- ronment.
112 CHAMBERS.COM
Contributed by: Michelle Gon, Han Kun Law Offices
Han Kun Law Offices is a leading full-service client/wealth management, intellectual property
law firm in China. Over the years, Han Kun has and dispute resolution. Han Kun has more than
been widely recognised as a leader in complex 700 professionals located in six offices in Bei-
cross-border and domestic transactions. Han jing, Shanghai, Shenzhen, Haikou, Wuhan and
Kun’s practice areas include private equity, Hong Kong. The firm’s lawyers are graduates of
mergers and acquisitions, international and do- top universities and have extensive experience
mestic capital markets, investment funds, asset in complex cross-border transactions and dis-
management, antitrust/competition, banking pute resolution as counsel to both Chinese and
and finance, aviation finance, foreign direct in- foreign clients.
vestment, compliance, data protection, private
Author
Michelle Gon is a senior medical devices, life sciences and healthcare,
attorney with more than three to agriculture, food and beverage, cruise lines,
decades of experience in the manufacturing, semi-conductor manufacturing
Greater China markets. and hi-tech. Before joining Han Kun, Michelle
Michelle’s practice includes was a senior partner at other leading
representing clients in international law firms. She also formerly
complicated and challenging compliance and served as the Chief Legal Officer/Vice
regulatory matters, including anti-corruption, President of Semiconductor Manufacturing
anti-unfair competition, anti-monopoly, anti- International Corporation (“SMIC”), and an
fraud, export control, trade sanctions and International Attorney for McDonald’s
corporate governance areas. Her client’s Corporation, headquartered in Illinois.
businesses range from pharmaceuticals,
Han Kun Law Offices

33/F
HKRI Centre Two
HKRI Taikoo Hui
288 Shimen Road (No 1)
Shanghai,
PRC
Tel: +86 21 6080 0909

Fax: +86 21 6080 0999
Email: shanghai@hankunlaw.com
Web: www.hankunlaw.com
113 CHAMBERS.COM
COLOMBIA
Nicaragua
Law and Practice Panama
Venezuela
Costa Rica
Contributed by: Bogota
Fabio Humar Jaramillo and Juan Camilo Casas Duarte Colombia

Fabio Humar Abogados see p.122 Ecuador Brazil
Peru
Contents
1. Legal Framework for Offences p.115 5.2 Guidelines Applicable to the Assessment of
1.1 International Conventions p.115 Penalties p.118
1.2 National Legislation p.115 6. Compliance and Disclosure p.119
1.3 Guidelines for the Interpretation and 6.1 National Legislation and Duties to Prevent
Enforcement of National Legislation p.115 Corruption p.119
1.4 Recent Key Amendments to National 6.2 Regulation of Lobbying Activities p.119
Legislation p.115
6.3 Disclosure of Violations of Anti-bribery and
2. Classification and Constituent Anti-corruption Provisions p.119
Elements p.115 6.4 Protection Afforded to Whistle-Blowers p.119
2.1 Bribery p.115 6.5 Incentives for Whistle-Blowers p.119
2.2 Influence-Peddling p.116 6.6 Location of Relevant Provisions Regarding
2.3 Financial Record-Keeping p.116 Whistle-Blowing p.120
2.4 Public Officials p.116 7. Enforcement p.120
2.5 Intermediaries p.117 7.1 Enforcement of Anti-bribery and Anti-
3. Scope p.117
3.1 Limitation Period p.117
7.3 Process of Application for Documentation p.120
3.2 Geographical Reach of Applicable Legislation p.117
7.4 Discretion for Mitigation p.120
3.3 Corporate Liability p.117
7.5 Jurisdictional Reach of the Body/Bodies p.120
4. Defences and Exceptions p.117 7.6 Recent Landmark Investigations or Decisions
4.1 Defences p.117 involving Bribery or Corruption p.120
4.2 Exceptions p.118 7.7 Level of Sanctions Imposed p.121
4.3 De Minimis Exceptions p.118
8. Review p.121
4.4 Exempt Sectors/Industries p.118
8.1 Assessment of the Applicable Enforced
4.5 Safe Harbour or Amnesty Programme p.118 Legislation p.121
5. Penalties p.118 8.2 Likely Changes to the Applicable Legislation
114 CHAMBERS.COM
COLOMBIA Law and Practice
Contributed by: Fabio Humar Jaramillo and Juan Camilo Casas Duarte, Fabio Humar Abogados
1. Legal Framework for Offences an investigative guide for the offences related
to corruption. The document sets out the con-
1.1 International Conventions text of the corruption phenomenon and several
Colombia has endorsed the following anti-cor- investigative and procedural instruments were
ruption conventions: developed to assist the attorney in prosecuting
these offences. It is worth stating that the guide
• the United Nations Convention against Cor- is not a standard, and it is not legally binding for
ruption – UNODC; the investigation and prosecution of this type of
• Inter-American Convention Against Corrup- offences.
tion;
• OECD Anti-Bribery Convention. On the other hand, precedent of the Supreme
Court of Justice – Criminal Appellate Division
1.2 National Legislation grants valuable tools for the interpretation of the
The national legislation anti-corruption is mainly different criminal definitions. For example, the
found in Law 1474 of 2014 (the “Anti-Corruption Court has established that for offences against
Statute”). In this Statute there are measures of a public administration, interpretation should be
criminal, contractual and administrative nature made from the civil service perspective and its
and from public policy intended to fight this relationship with the offence and not from the
deplorable phenomenon. Regarding offences “formal” quality that the active subject (individual
related to corruption, this Law amends or adds or public official) may hold.
provisions to the Criminal Code (Law 599 of
2000): therefore, all criminal conduct, including 1.4 Recent Key Amendments to National
that referred to, can be consulted in the Code. Legislation
As indicated in 1.2 National Legislation, the Law
Law 1778 of 2016 established rules on the 2195 of 2022 was issued. This Law intends to
administrative accountability of legal persons for implement provisions for preventing corruption
acts of corruption. The Law enables Superin- through strengthening in the structuring and co-
tendency of Corporations in order to investigate ordination of public institutions, promoting the
and administratively sanction these offences. legality culture and creating effective regulatory
mechanisms for reparation for damages caused
Finally, Law 2195 of 2022 was established by acts of corruption.
whereby action was taken with regard to trans-
parency, prevention and the fight against cor-
ruption; and other provisions are established 2. Classification and Constituent
where administrative, criminal and public policy Elements
are implemented to complement the Anti-Cor-
ruption Statute. 2.1 Bribery
In Colombia there are four types of bribery.
1.3 Guidelines for the Interpretation and
Enforcement of National Legislation • Active bribery: public official prosecuted for
The United Nations Office on Drugs and Crime accepting or receiving any bribe in return for
and the Office of the Attorney General drafted
115 CHAMBERS.COM
delaying or omitting an activity in their posi- cutes individuals who influence a public official
tion. in order to obtain economic benefits. In the lat-
• Passive bribery: public official prosecuted for ter case, this means that if the individual seeks
accepting or receiving any bribe in return for non-economic benefits, the conduct is not pun-
making an activity in their position. ishable.
• Bribery by giving or offering: the individual
is prosecuted for offering money to a public Influence-peddling by foreign public officials is
official for delaying, omitting or making an not considered as criminal in Colombia. Never-
activity in their position. theless, those acts can be administratively pros-
• Tacit bribery: the individual is prosecuted for ecuted by the Superintendency of Corporations
bribing a public official on an issue of inter- under Law 1778 of 2016.
est to the individual; the public official who
accepts the bribe is prosecuted. 2.3 Financial Record-Keeping
Document forgery is established in Section III of
Article 20 of the criminal law establishes that Header IX Criminal Code. Depending on the enti-
public officials are “members of public corpo- ty’s nature, the forgery can be public or private.
ration, employees and State workers and their Using forged documents to obtain an adminis-
decentralised territorial entities and by services, trative or legal decision is a procedural violation.
for these purposes the public officials are mem-
bers of public force, individuals that exercise 2.4 Public Officials
public functions permanently or temporarily, Section I of Header XV Criminal Code sets out
officers and workers of Banco de la República, the different modes of embezzlement.
the members of the National Citizens Commis-
sion for the Fight against Corruption”. • Embezzlement by appropriation: consists in
the public official, by virtue of their role, seiz-
Every particular case should involve analysis of ing government or individual property entrust-
whether the public functions of the active indi- ed for management or possession.
vidual are related to the bribe purpose. It should • Embezzlement by usage: consists in the
be considered whether the bribe offered has the public official improperly using government or
potential of corrupting the public official. individual property given to them by virtue of
their role.
Finally, it should be indicated that Article 433 • Embezzlement by different official applica-
of the criminal law prosecutes the transactional tion: this mode occurs when the public official
bribe. uses government or individual property given
to them by virtue of their role for a different
2.2 Influence-Peddling use than established.
Articles 411 and 411-A of the criminal law pros- • Culpable embezzlement: consists in the
ecutes influence-peddling. The first provision is public official by negligence allowing loss and
directed against a public official who uses the damage on government or individual property
influence derived from their position or tasks entrusted to them by virtue of their role.
to obtain benefits from a public official for their
benefit or for a third party. The second prose-
116 CHAMBERS.COM
2.5 Intermediaries • There are offences against national secu-

Commission of an offence can occur through rity and the existence of the state, against
an intermediary. The perpetrator is considered the constitutional system, against the social
as anyone who uses a third party as an instru- economic order, or of national currency coun-
ment for the commission of an offence, provided terfeiting, terrorism financing, and resources
that at least one of the following three conditions management for terrorism, even if there were
occurs: acquittal or conviction abroad of a sentence
more minor than established in Colombian
• the person used as an instrument should act Law.
under error; • The person serving the Colombian State has
• the person used as an instrument is immune immunity acknowledged by international law
from prosecution; or and commits an offence abroad.
• an organised power apparatus was used. • The person serving the Colombian State does
not have immunity and has not been judged
In addition, the actual perpetrator is criminally abroad for that offence.
accountable for coercing the perpetrator as well • The citizen, in either of the situations men-
as those who help to commit the offence, no tioned above, is in Colombia after committing
matter if they are not a public official. an offence abroad, when Colombian criminal
law has convicted them with a term of impris-
onment whose minimum is not less than two
3. Scope years and they have not been judged abroad.
3.1 Limitation Period 3.3 Corporate Liability

The statutory limitation is estimated in accord- In Colombia there is no criminal accountability
ance with the maximum sentence for the for a legal person, but that does not mean there
offence. The limitation starts from the date the are no consequences. Article 91 of Law 906 of
events occurred. Where the defendant is a pub- 2004 (Criminal Procedure Code) establishes
lic official, the limitation will be increased by half; suspension and liquidation of the legal person
the limitation will not exceed 20 years. when used for punishable acts.
It should be mentioned that if a charge is allo-

cated, the limitation is suspended and will be 4. Defences and Exceptions
counted by half. When judgment is established
and an appeal for cassation is filed, the limitation 4.1 Defences
will be suspended for five years. Defences for this type of offence depend on
the circumstances of the case. Usually, what is
3.2 Geographical Reach of Applicable sought is to discredit the materiality of the con-
Legislation duct, in other words, prove that the defendant
The Colombian criminal law governs nationwide. acted according to law. Another defence is to
However, it can govern abroad in the following distort the defendant’s deceit by establishing
circumstances. that the offender did not have knowledge about
the offence: for instance, the offender did not
117 CHAMBERS.COM
know that the public funds were lost. An individ- other defendants, under total or partial immu-
ual with public tasks might have a viable defence nity; and
by proving that their official tasks are not linked • when the perpetrator or participant in bribery
with the alleged offence. makes the relevant denunciation which acts
as the origin of the criminal investigation, pro-
4.2 Exceptions viding useful evidence for the trial and serving
As indicated above, there are no specific defenc- as witness, as long as they voluntarily and
es for this type of offences, as they depend on comprehensively repair the damage caused.
the circumstances of the case. To this effect, it
depends on the factual framework and the evi-
dence obtained in order to discredit the defenc- 5. Penalties
es. Nevertheless, there are no legal constraints
for not having a defence. 5.1 Penalties on Conviction
Penalties are established in the criminal code.
4.3 De Minimis Exceptions For this type of offences, the penalties are mainly
Colombian criminal law has the principle of detri- prison and a fine.
ment as limit; therefore, the criminal law is not
relevant when there is no real damage or real For bribery by appropriation, the penalties vary
danger to the public administration. This can be between 64 and 540 months of imprisonment
seen when a public official appropriates property and a fine up to 50.000 statutory monthly mini-
of little value. For instance: mum wage depending on the amount. In case of
bribery, the penalties are from 48 to 144 months
• taking stationery items; of imprisonment and a fine from 66.66 to 150
• breaking a good of little value through mini- statutory monthly minimum wage depending on
mal negligence and the public official fixes it; modality.
or
• accepting a socially acceptable gift which has 5.2 Guidelines Applicable to the
no potential to corrupt (a candy, a coffee, a Assessment of Penalties
pencil, etc). The penalties for all offences have a scope for
mobility. The Criminal Code establishes some
4.4 Exempt Sectors/Industries guidelines based on proportionality, reasona-
There is no industry exempt from committing bleness, damage caused, severity of deceit or
this type of offences. guilt for establishing a fair penalty. In accordance
with Law 2197 of 2022, guidelines establish the
4.5 Safe Harbour or Amnesty Programme penalty if the defendant has been convicted
Law 906 of 2004 has the legal concept of dis- of a fraudulent offence within the previous 60
cretionary principle, which can be applied in the months.
following cases:
• when the defendant until before starting the

trial commits to serve as witness against the
118 CHAMBERS.COM
6. Compliance and Disclosure 6.2 Regulation of Lobbying Activities

Lobbying activities are not specially regulated by
6.1 National Legislation and Duties to domestic law. However, when doing these activi-
Prevent Corruption ties, the crime regulations should be observed
Law 1778 of 2016 establishes that the Super- in order to avoiding committing the offences of
intendency of Corporations has liability for pro- influence-peddling or bribery.
moting the implementation of transparency and
business ethics programmes that include mech- 6.3 Disclosure of Violations of Anti-
anisms and standards for internal audits and the bribery and Anti-corruption Provisions
prevention of transnational bribery. Article 67 of the Criminal Procedure Code estab-
lishes the liability of reporting, meaning every
Through external circular letter, the Superintend- person should report to the authorities about
ency of Corporations issued a “Guide oriented any known offences that should be investigated.
on implementing compliance programmes for
preventing offences established in Article 2 of 6.4 Protection Afforded to Whistle-
Law 1778 of 2016”. It established: Blowers
Constitutional Article 250 establishes the liability
• liability of implementing compliance proof the Attorney for protecting victims and wit-
grammes based on: nesses. The Criminal Procedure Code allows for
(a) identification and segmentation of risks; the imposition of preventive custody when there
(b) risks measurement; is risk to the victim or witnesses. Decree 63 of
(c) development of policies in accordance 2007 established the witness protection law in
with risks; criminal prosecution. This allows implementation
(d) policies assessment; and of the following measures:
(e) upgrading of policies;
• implementation of reporting channels; • restraining of the risks;
• personnel training; • temporary or permanent relocation of the wit-
• protection for employees who decide not ness inside or outside the country;
to participate in any transnational bribery • change of identity;
offence; and • modification of physical features; and
• assignment of specific liabilities to employees • other necessary measures for protecting their
exposed to transnational bribery. life, as well as physical, psychological, and
working safety.
The infringement of those liabilities in no way
constitutes an offence. However, a company 6.5 Incentives for Whistle-Blowers
can be subjected to financial penalties by the As a general rule, there are no incentives for
Superintendency of Corporations. If an offence whistle-blowers in cases of bribery or corruption,
of transnational bribery is committed and the excepting when there are rewards programmes
company’s directors know about the situation from authorities for prosecution of criminal
and do not report it, they will be accountable for offences.
favouring which has a penalty ranging from 16
to 72 months of imprisonment.
119 CHAMBERS.COM
6.6 Location of Relevant Provisions 7.3 Process of Application for

Regarding Whistle-Blowing Documentation
The relevant provisions for making reports of Every entity has investigation powers for fulfilling
irregularities are established in the Criminal Pro- their constitutional and legal liabilities. If neces-
cedure Code and Criminal Code. sary, they can impose requirements on com-
panies for collecting information/documenta-
tion, verification, and questioning, among other
7. Enforcement activities.
7.1 Enforcement of Anti-bribery and Anti- 7.4 Discretion for Mitigation

corruption Laws Every entity has the option of offering incentives
Enforcement is implemented administratively for those who report, compensate, and serve as
and criminally: witness, in order to solve corruption offences.
These incentives might be reduction of the pen-
• in criminal jurisdiction through criminal pros- alty until partial or total immunity from prosecu-
ecutions established in Law 600 of 2000, and tion.
906 of 2004; and
• administratively, laws are applied under 7.5 Jurisdictional Reach of the Body/
administrative, disciplinary and fiscal respon- Bodies
sibility. The Attorney General’s Office is an authority
belonging to the judicial branch. However, it
7.2 Enforcement Body cannot make substantive decisions regarding
The enforcement bodies are as follows. criminal liability, as this is within the jurisdiction
of criminal judges. The other entities have an
• Attorney General’s Office: entity in charge of administrative nature.
investigating and prosecuting the commission
of offences. 7.6 Recent Landmark Investigations or
• General Procurator of the Nation: investi- Decisions involving Bribery or Corruption
gates, prosecutes and disciplines public The current jurisprudence relevant to corruption
officials. offences is from 25 May 2022 under file number
• Comptroller General of the Republic: in 54153. In this proceeding a local attorney from
charge of carrying out fiscal accountability Tumaco (Nariño) was investigated for commit-
proceedings. ting bribery and breach of public duty. According
• Superintendency of Corporations: carries out to the judgment, the attorney received money
inspections and monitors companies that for: (i) granting release to people captured for
should implement compliance programmes influence-peddling, (ii) accusing defendants of a
for the prevention of transnational bribery. lesser offence, and (iii) giving a money seizure.
• General Auditing Office: in charge of surveil- The court established that the reception of bribes
lance of fiscal management. can be proven through evidence; when analys-
ing the convergence of the indicated offences, it
could be inferred that the public official received
bribes.
120 CHAMBERS.COM
Recently, a former congressman was convicted final recipients, effective or real, of the company,
for bribing a judge of the Supreme Court of Jus- despite being established by Law 2010 of 2019.
tice and sentenced to 72 months of imprison-
ment. For the same acts a former judge bribed Combining the above findings, the report makes
was convicted and sentenced to 116 months some suggestions:
and 12 days of imprisonment and a fine of 94.48
statutory monthly minimum wage. • improvement of information systems;
• improvement of issuing time for court and
7.7 Level of Sanctions Imposed administrative rulings;
As indicated in earlier sections, criminal account- • establishing legislation for improving the
ability is exclusive to natural persons without protection of natural and legal persons that
limiting reference to Article 91 of the Criminal report acts of corruption; and
Procedure Code that establishes suspension of • increasing public discussion about the crimi-
legal persons used for committing an offence. nal accountability of legal persons.
The penalty for this type of offence for natural
persons is a term of imprisonment, with no pos- 8.2 Likely Changes to the Applicable
sibility of penal alternatives. The offences have Legislation of the Enforcement Body
penalties of up to 50,000 statutory monthly mini- It is likely that there will be changes to the anti-
mum wage. In any case, if the criminal behav- corruption legislation. Unfortunately, this crimi-
iour affects national assets, the defendant will be nal phenomenon is the one that has affected the
subject to permanent disqualification from exer- Colombian community the most; acts of corrup-
cising public tasks or obtaining state contracts. tion exposed by the media cause uneasiness in
public opinion. The Colombian legislative culture
is characterised by using criminal law to fight
8. Review acts of criminality, usually with more repressive
measures. Therefore, it is likely that new criminal
8.1 Assessment of the Applicable definitions will be established or benefits might
Enforced Legislation be limited for this type of offences.
In 2020, the OECD carried out a report named
“Exporting Corruption” where Colombia’s situ-
ation was assessed regarding the fight against
corruption. In that assessment, although there
was recognition of progress in inter-institutional
co-operation and the efforts of the Attorney Gen-
eral’s Office for securing convictions for these
offences, the truth is that the assessment was
not positive. The OECD found weaknesses in the
completeness of the information as there are no
databases with figures regarding transnational
bribery; the court and administrative rulings are
issued too late; there are no public records of the
121 CHAMBERS.COM
Fabio Humar Abogados has extensive expe- Abogados also act in matters related to fiscal
rience in representing both national and inter- investigations and disciplinary investigations,
national clients before different authorities in as well as in criminal implications related to
criminal and administrative investigations. The antitrust and public tender law matters. Led by
firm also acts for companies in analysis, man- Fabio Humar, the team has worked in the public
agement and implementation of legal/political sector, in different positions, either as prosecu-
risk management systems. The team advises in tors, judges or attorneys. This background al-
the public sector, and thus brings what it has lows the law firm to be in tune with the reality of
learned to private litigation, offering the client justice in Colombia, and hence offer solutions
solutions that have been successfully tested in based on evidence and the operation of the Co-
government and state settings. Fabio Humar lombian legal system.
Authors
Fabio Humar Jaramillo is a Juan Camilo Casas Duarte is a
lawyer specialising in criminal specialist in criminal law, with
law, with litigation experience in more than four years’
the United States. A former experience working in important
District Attorney, Humar has a companies in the public sector
background in the Financial and prestigious law firms. Within
Crimes Unit, Money Laundering, and Economic the team of Fabio Humar Abogados, Juan has
Order, as well as the Copyright Unit and worked in corporate litigation, and, in
Individual Liberties Unit. His accuracy and particular, cases related to money laundering,
detailed work are delivered as the result of cybercrime, public and private corruption.
academic excellence in postgraduate studies During his professional career, he has served
in criminal law, constitutional law, as a lecturer and author of various legal
administrative law and economic law; as well publications. Given his combined experience,
as continuing education in different subjects Juan’s perspective when approaching cases is
related to criminal law. Fabio is ranked as a comprehensive, combining academic vision
leading litigator in criminal law and white-collar with professional praxis.
crimes.
122 CHAMBERS.COM
Fabio Humar Abogados

Calle 67 # 7 – 35 OF.
1204
Bogotá
110231
Colombia
Tel: +57 310 228 0188

Email: Fhumar@fabiohumar.com
Web: www.fabiohumar.com/
123 CHAMBERS.COM
COLOMBIA Trends and Developments

Contributed by:
Fabio Humar Jaramillo and Juan Camilo Casas Duarte
Fabio Humar Abogados see p.130
The Eternal Fight Against Corruption in omy, protecting free competition and autonomy
Colombia of will.
Corruption is a globalised phenomenon from
which Colombia does not escape, and which The structure of the Colombian State as set
has forced the design of strategies, internal as forth in the Political Constitution denotes a state
well as of adoption of international instruments, founded on values that advocate human dignity,
aimed at controlling this scourge that crosses solidarity, equality “within a legal, democratic
national borders. and participatory framework that guarantees
a just political, economic and social order...”;
Corruption is a phenomenon of perception, this means that all actions of public servants as
as are most criminal phenomena; the ease of instruments to fulfil state purposes and individu-
access to the media today makes this phenom- als as a people subject to a series of impera-
enon more strident and generates a social and tive and dispositive mandates, are aimed at the
moral sanction that requires the State to adopt transparency of behaviour in pursuit of the com-
more efficient mitigation and control measures mon good.
to demonstrate a forceful fight against corrup-
tion. Colombia has assumed a series of international
commitments through agreements, monitoring
The different forms of corruption have required mechanisms and follow-up on commitments.
the adoption of efficient systems to combat This denotes its commitment as an international
them and, above all, to prevent normalisation actor in the fight against corruption. We have the
within society. A range of binding constitutional United Nations Convention against Corruption –
values for both individuals and public servants, UNCAC, the Inter-American Convention Against
such as the principles of administrative function, Corruption, the OECD Anti-Bribery Convention
constitute the basis in Colombia’s legal system and its Recommendation to Strengthen the Fight
for the adoption of sanctioning regimes, wheth- Against Corruption of Foreign Public Officials
er administrative or criminal, without, on some in International Business Transactions, among
occasions, one excluding the other. other instruments.
This breadth in the concept of corruption means Within this normative framework, both con-
a breadth of actors, sectors and behaviours that stitutional and of international instruments, in
in their entirety make up corruption. This implies compliance with the principle of conventional-
the adoption of measures, whether legislative, ity, Colombia has adopted a series of legislative
administrative, international instruments or con- measures to address this phenomenon, whether
ventional control. These measures result in the through the creation of entities, laws, or crimi-
fulfilment of state tasks, either as an actor (public nal, administrative and fiscal sanctions, which
corruption) or as a guard of the national econ- for several years have been strengthened.
124 CHAMBERS.COM
In Colombia there is no definition of corruption of the public function and the participation of
in any of the laws that can be taken as a ref- citizens in the construction of public policies and
erence to understand what behaviours can be in the daily work of the administration. Its tools
considered as conduct constituting corruption. include the right of petition, popular actions, cit-
While many of these laws refer to conduct that izen oversight, the principles of administrative
constitutes corruption, there is no clarity on its function such as administrative morality, govern-
definition. We can find elements common to the ment programmes, development plans, and the
concept of public and private corruption: planned execution of public resources. As nor-
mative aspects of the Political Constitution: the
From an extensive review of literature, it was system of checks and balances of the branches
concluded that among the essential elements of public power, the control bodies that no longer
of corruption there are at least: (i) the abuse or depend on the executive power, administrative
misuse of entrusted power, which can be public decentralisation, the popular election of leaders
or private; and (ii) private benefit or gain, which of territorial entities, among others. In short, the
may be personal or for a third party, and which human being as the first and last reason for the
does not necessarily have to be monetary. On action of the state.
the contrary, there is still no unanimity in relation
to the need for: (i) the existence of interaction At the level of rules, Colombia has the Discipli-
between a public and a private actor; and (ii) nary Code and the Code of Fiscal Responsibil-
direct damage to the general interest being gen- ity, the first sanctioning the behaviour of public
erated or not. In any case, the current trend is servants in accordance with their functional duty,
to gradually reduce the elements of the essence and the Code of Fiscal Responsibility intended
of the concept, in order to achieve a dynamic for the protection of public resources by public
conception of the phenomenon of corruption, servants. These two Codes are part of the ius
which takes into account the great capacity for puniendiof the state and are closely linked to the
mutation of the forms in which corruption takes fight against corruption. Likewise, we have the
shape. (Newman Pont, Vivian and Ángel Aran- Code of Extinction of Ownership, which is an in
go, and María Paula, On corruption in Colom- rem action that pursues the property of people
bia: conceptual framework, diagnosis and policy who have enriched themselves through the com-
proposals (2017). mission of crimes, whether they have used the
property for the execution of the crimes, or they
The phenomenon of corruption is of long stand- have acquired it with money from such criminal
ing in Colombia, from its foundation as a Repub- conduct, or for compensation due to the impos-
lic to the present. The constitutional designs sibility of pursuing the aforementioned property.
and legislation based on these constitutions are
intended, more in public than in private, to con- However, the most serious sanctions adopted
trol abusive behaviours implying deviation from are those defined in the Criminal Code, which
the pursuit of the general interest. In the evolu- as ultima ratioimplies the greatest interference
tion of the Colombian State, from a state of law in the fundamental rights of the human being,
to a social and democratic state of law, with a such as freedom. Although there is no protected
marked pluralist and participatory approach, it legal right in the Colombian Criminal Code called
seeks to generate transparency in the actions “corruption “, we do find crimes that have, in a
125 CHAMBERS.COM
direct manner, the objective of combating cor- making compatible two concepts that were tra-
ruption, such as those provided for in crimes ditionally considered separate: morality and law.
against public administration.
As for Private Corruption, this concept has been
Among these we find the crimes of Proper Brib- developed in recent times because the concept
ery, Improper Bribery, Illicit Enrichment, Prevari- of corruption had formerly been associated only
cation by Action, Prevarication by Omission, with public administration. In this way, the fight
Embezzlement by Appropriation, and crimes against corruption has been extended to the
related to state contracting, such as Undue Inter- private sphere, either by association with public
est in the Conclusion of Contracts and Contract servants or between private persons.
Without the Fulfilment of Legal Requirements,
and Influence-Peddling, among others. Article 333 of the Political Constitution enshrines
the freedom of economic activity and of private
Additionally, in the execution of sentences of initiative “within the limits of the common good”.
public servants and intervening parties con- For this purpose, free competition is a right. In
victed of crimes against public administration, this sense, rules have been developed to prevent
the laws have hardened the access to benefits abuses of dominant position in the market or to
and pre-agreements, such as house imprison- prevent the entry of new competitors.
ment or conditional suspension of sentence,
to the point of denying them for these crimes. The Constitutional framework for the economic
Likewise, administrative sanctions such as the activity of private persons has allowed the devel-
permanent inability to contract with the state. opment of a series of instruments to punish,
The principle of negative general prevention of either administratively or criminally, conduct that
punishment applies. violates the legal system. The Criminal Code,
which has not made progress in criminalising the
Since these crimes are related to the functional conduct of legal persons, has adopted measures
duty of public servants, statutes have been legal- to punish the administrators of legal persons
ly created, such as those for public procurement, involved in the commission of crimes. Based
processing of urban planning licences, and the on the doctrine of acting for another, Article 29
Organic Statute of the Public Budget, to mention of the Criminal Code allows the prosecution of
a few, which regulate the procedure that public members of representative bodies authorised in
servants must follow in order to reduce the dis- accordance with the corporate by-laws.
cretion of their actions, constituting a limitation
on the exorbitant power of the state. Law 2195 of 2022, “By means of which measures
are adopted in matters of transparency, preven-
Mention must also be made of the construction tion and fight against corruption”, was recent-
of public ethics derived from Article 209 of the ly issued, adopting administrative sanction-
Constitution, for which an Internal Management ing measures against legal persons, including
Control system was created, aimed at creating branches of foreign companies, in three events,
and strengthening the issue of morality and eth- for crimes committed directly or indirectly: con-
ics as the basis of the public servant’s actions, viction or firm principle of opportunity for crimes
against public administration, the environment,
126 CHAMBERS.COM
the economic and social order; financing of ter- law, since although guarantees of ius puniendi
rorism and organised crime groups; administra- are applied, they are more flexible in administra-
tion of resources related to terrorist and organ- tive sanctioning law than in criminal law.
ised crime activities; private corruption; unfair
administration, among others. In the year 2011, the so-called Anti-Corruption
Statute, Law 1474, was issued, introducing
As already mentioned, the penalties provided a series of administrative and judicial meas-
for in the Criminal Code for legal persons are ures to prevent and punish corrupt acts. These
applicable when the crimes have been commit- measures are both administrative and criminal.
ted by members of the management bodies. Notably, this law creates crimes such as Private
It is understood that the provisions of this law Corruption, Unfair Administration, and Use of
apply when the indicated crimes are committed Privileged Information, among others. These
by such employees, that is, by those who have three crimes have in common that they occur in
decision-making capacity within the companies. the corporate sphere.
The second event proceeds when the legal per- Private corruption arises for giving or offering to
son benefits directly or indirectly from the com- managers, administrators, employees or advisers
mission of the crime for a conduct committed by of a company, association or foundation a gift or
its administrators or officials. In this event, the any unjustified benefit to favour the person or
base of employees who can engage the admin- a third party, to the detriment of the company,
istrative liability of the legal entity is broadened. association of foundation. The same penalty
applies to the employee, adviser, manager or
The third event is generated when the company administrator who has the initiative of request-
tolerated the commission of the conduct by ing the gift or benefit.
action or omission in the application of its risk
controls, that is, the self-management system of With this crime, the crime of Bribery is trans-
prevention of the risk of asset laundering, preferred to the private context and its purpose is
vention of terrorism and other behaviours. The to prevent the employees of a company from
principle of due diligence must be applied. deploying a conduct that violates the interests
of the company and to have them behave in
These sanctions are intended to prevent legal accordance with the role that corresponds to
persons from being used as an instrument or them, that is, to strive, in contracting processes
front for the commission of crimes. Having legis- or negotiations of any kind, to obtain benefits
lation where only natural persons are responsible and profits for the company. Therefore (i) that a
for criminal behaviour, it is necessary to move gift or benefit is sought, and (ii) that damage is
towards criminalisation of the conduct deployed caused to the company, are defined as norma-
by legal persons, which undoubtedly generates tive elements of the crime.
serious dogmatic problems that countries such
as Spain have already overcome; but such provi- The crime of Unfair Administration is also
sions are still not incorporated in Colombian leg- intended to protect companies. Loyalty and
islation. That is why sanctions on legal persons due diligence of employees of any level in the
are regulated in the administrative sanctioning management of the business are sought. The
127 CHAMBERS.COM
difficulty of the crime consists in that the action technological advances, science and telecom-
(incurring obligations or disposing fraudulently) munications, which have modified international
is established on property of the company but trade and the relationships derived from it, with
the assessable damage is on the equity of the the consequent transnationalisation of crime.
partners. It is forgotten in the definition of the Economic growth led to the need to create
conduct that to damage the property of the part- supranational crimes to protect legal assets of
ners, the company property must be damaged, interest to criminal law.
without this damage being part of the crime and,
therefore, of the criminal sanction, so that an This implies developing mechanisms of co-
improper administration that only damages the operation between states and jointly signing
company equity does not generate a sanction. international instruments to sanction this type of
conduct, but it will always depend on the will of
To conclude the three crimes mentioned, we the states, the sanctions to be imposed and the
have the crime of Use of Privileged Information, constitutionally established form of the state. It
that is, confidential information that has been must be noted that the sentences handed down
known by the employee in the exercise of the abroad for this crime do not have the force of res
employee’s role within the company. This crime judicata in Colombia, so that investigations may
does not require damage to the company equi- be carried out for these same facts.
ty. Such information must be used, but the use
must also be improper. This crime includes the Likewise, through Law 1778 of 2016, adminis-
use of information by those persons who work trative liability rules were issued against legal
with shares, securities or instruments registered persons for transnational bribery. This includes
in the National Securities Registry. sanctions against parent companies for actions
of their affiliates and, similarly, affiliates are
The configuration of these crimes demonstrates sanctioned for acts of their parent companies.
the progress of the state in combating corruption It must be noted that this action is autonomous
on all fronts, in both the public and the private, at and independent and does not depend on the
the level of natural persons as well as in the cor- results of other proceedings.
porate sphere. This means that the phenomenon
of corruption is shaping the way of legislating Colombia has adopted a series of measures at
and the need to establish new forms of unlawful the international level and in domestic law to
acts, whether administrative or criminal, to avert prevent and combat acts of corruption, in the
this form of delinquency. public and private spheres, by acts of natural
or legal persons. It can be considered that the
Finally, it is important to highlight the crime of measures adopted are insufficient in the face
transnational bribery, a conduct that is estab- of the increasing acts of corruption, which are
lished as a criminal offence as well as an admin- made visible by the ease of access to the media,
istrative offence. In our legal system, it was but the outlined measures that have been adopt-
criminalised in Article 433 of the Criminal Code ed correspond to a constitutional and domes-
in order to punish bribery of international public tic order architecture based on human dignity
servants. This is a product of the globalisation and the common interest that are affected by
of the economy given the opening of borders,
128 CHAMBERS.COM
all these behaviours diverted to benefit in a par-

ticular way the active subjects of the behaviours.
There are many sectors in which corruption is

present and that have forced the adoption of
combating measures. Although not mentioned
in the article, it does not mean that instruments
have not been adopted to attack corruption. As
indicated, the advance of acts of corruption has
modified the legal assets that the state must
protect, and therefore legislation and the legal
system must be creative in generating controls
and measures that may be adapted to the con-
tinuous changes in interpersonal and commer-
cial relationships.
129 CHAMBERS.COM
Fabio Humar Abogados has extensive expe- Abogados also act in matters related to fiscal
rience in representing both national and inter- investigations and disciplinary investigations,
national clients before different authorities in as well as in criminal implications related to
criminal and administrative investigations. The antitrust and public tender law matters. Led by
firm also acts for companies in analysis, man- Fabio Humar, the team has worked in the public
agement and implementation of legal/political sector, in different positions, either as prosecu-
risk management systems. The team advises in tors, judges or attorneys. This background al-
the public sector, and thus brings what it has lows the law firm to be in tune with the reality of
learned to private litigation, offering the client justice in Colombia, and hence offer solutions
solutions that have been successfully tested in based on evidence and the operation of the Co-
government and state settings. Fabio Humar lombian legal system.
Authors
Fabio Humar Jaramillo is a Juan Camilo Casas Duarte is a
lawyer specialising in criminal specialist in criminal law, with
law, with litigation experience in more than four years’
the United States. A former experience working in important
District Attorney, Humar has a companies in the public sector
background in the Financial and prestigious law firms. Within
Crimes Unit, Money Laundering, and Economic the team of Fabio Humar Abogados, Juan has
Order, as well as the Copyright Unit and worked in corporate litigation, and, in
Individual Liberties Unit. His accuracy and particular, cases related to money laundering,
detailed work are delivered as the result of cybercrime, public and private corruption.
academic excellence in postgraduate studies During his professional career, he has served
in criminal law, constitutional law, as a lecturer and author of various legal
administrative law and economic law; as well publications. Given his combined experience,
as continuing education in different subjects Juan’s perspective when approaching cases is
related to criminal law. Fabio is ranked as a comprehensive, combining academic vision
leading litigator in criminal law and white-collar with professional praxis.
crimes.
130 CHAMBERS.COM
Fabio Humar Abogados

Calle 67 # 7 – 35 OF. 1204
Bogotá
110231
Colombia
Tel: +57 310 228 0188

Email: Fhumar@fabiohumar.com
Web: www.fabiohumar.com/
131 CHAMBERS.COM
FRANCE
Belgium
Law and Practice Paris

Germany
Contributed by: France Switzerland
Kiril Bougartchev, Emmanuel Moyne, Edward Italy

Huylebrouck and Joséphine Doncieux
Bougartchev Moyne Associés see p.154 Spain
Contents
2. Classification and Constituent
Elements p.136 6.6 Location of Relevant Provisions Regarding
2.1 Bribery p.136
2.2 Influence-Peddling p.137 7. Enforcement p.147
2.3 Financial Record-Keeping p.137 7.1 Enforcement of Anti-bribery and Anti-
2.4 Public Officials p.137 corruption Laws p.147
2.5 Intermediaries p.138 7.2 Enforcement Body p.147
3. Scope p.138
7.6 Recent Landmark Investigations or Decisions
3.3 Corporate Liability p.139 involving Bribery or Corruption p.149
4. Defences and Exceptions p.140 7.7 Level of Sanctions Imposed p.152
4.1 Defences p.140 8. Review p.152
4.2 Exceptions p.140 8.1 Assessment of the Applicable Enforced
4.3 De Minimis Exceptions p.140 Legislation p.152
4.4 Exempt Sectors/Industries p.140 8.2 Likely Changes to the Applicable Legislation
4.5 Safe Harbour or Amnesty Programme p.140 of the Enforcement Body p.153
5. Penalties p.142
Penalties p.143
132 CHAMBERS.COM
FRANCE Law and Practice
Contributed by: Kiril Bougartchev, Emmanuel Moyne, Edward Huylebrouck and Joséphine Doncieux,
1. Legal Framework for Offences 1.2 National Legislation

The main national legal provisions relating to
1.1 International Conventions anti-bribery and anti-corruption are enshrined in
France has ratified a number of international the Penal Code and the Code of Criminal Pro-
treaties relating to bribery and corruption, includ- cedure.
ing the following key agreements:
Law No 2016-1691 (the “Sapin II Law”) was
• the EU Convention on the Fight Against Cor- signed on 9 December 2016 and entered into
ruption Involving Officials of the European force on 11 December 2016 in respect of most
Communities or Officials of Member States of its provisions. The Sapin II Law strove to make
(signed by France on 26 May 1997, approved further progress in the fight against corruption
by Law No 99-423 of 27 May 1999 and rati- by:
fied on 4 August 2000);
• the OECD Convention on Combating Bribery • introducing a new duty to prevent bribery
of Foreign Public Officials in International or influence-peddling in France or abroad
Business Transactions (signed by France on for chairs, chief executives and managers
17 December 1997, approved by Law No of large private and public companies in the
99-424 of 27 May 1999 and ratified on 31 July form of setting up a comprehensive compli-
2000); ance programme;
• the Council of Europe Criminal Law Conven- • creating the French Anti-corruption Agency
tion on Corruption of 27 January 1999 (signed (Agence Française Anticorruption, or AFA) to
by France on 9 September 1999, approved monitor the quality and efficiency of compli-
by Law No 2005-104 of 11 February 2005 ance measures implemented within the com-
and ratified on 25 April 2008); panies and public entities concerned;
• the Council of Europe Civil Law Convention • introducing the offence of influence-peddling
on Corruption of 4 November 1999 (signed by of foreign public officials, along with a new
France on 26 November 1999, approved by ancillary penalty consisting of a compliance
Law No 2005-103 of 11 February 2005 and programme (programme de mise en con-
ratified on 25 April 2008); formité);
• the Additional Protocol to the Criminal Law • extending French judges’ jurisdiction over
Convention on Corruption (signed by France acts of bribery and influence-peddling com-
on 15 May 2003, approved by Law No 2007- mitted abroad;
1154 of 1 August 2007 and ratified on 25 April • introducing a new ADR mechanism known as
2008); and a “judicial public interest agreement” (con-
• the United Nations Convention Against Cor- vention judiciaire d’intérêt public, or CJIP)
ruption of 31 October 2003 (signed by France for legal entities suspected of acts of bribery,
on 9 December 2003, approved by Law No influence-peddling, or laundering of tax fraud
2005-743 of 4 July 2005 and ratified on 11 proceeds (extended to tax fraud in 2018 and
July 2005). to environmental offences in 2020 by Law No
2020-1672); and
• strengthening the protection of whistle-blow-
ers – this was further reinforced by Law No
133 CHAMBERS.COM
2022-401 aimed at improving the protection less, these time limits may be suspended, espe-
of whistle-blowers. cially in the event of a request for international
judicial assistance.
Law No 2020-1672 relating to the European
Public Prosecutor’s Office, environmental jus- Under the same law, in the event of a police
tice and specialised criminal justice was signed search of a law firm, legal privilege is not enforce-
on 24 December 2020, entered into force on 26 able against investigative measures concerning
December 2020, and provided for the following. tax fraud, influence-peddling, corruption and
laundering if the documents shared by the law-
• The implementation of the European Public yer or their client were used for the purpose of
Prosecutor’s Office (EPPO), which is respon- committing (or facilitating the commission of) the
sible for investigating, prosecuting and aforementioned offences.
bringing to justice the perpetrators of – and
accomplices to – criminal offences affecting 1.3 Guidelines for the Interpretation and
the financial interests of the EU, which are Enforcement of National Legislation
provided for in Directive (EU) 2017/1371 and On 26 June 2019, the AFA and the National
include: Financial Prosecutor’s Office released the first
(a) misappropriation of EU funds; joint guidelines on the application of CJIPs, with
(b) active and passive bribery; the aim of encouraging legal entities to adopt
(c) transnational VAT fraud when at least two such a co-operative approach towards the
EU member states are involved and more French authorities.
than EUR10 million are at stake;
(d) customs offences and related money In its first decision (rendered on 4 July 2019), the
laundering. Enforcement Committee of the AFA confirmed
• The abolition of the requirement for legal enti- that AFA recommendations are not legally bind-
ties to acknowledge facts and criminal qualifi- ing – even though public institutions and com-
cation upon reaching a judicial public interest panies are encouraged to follow them.
agreement at the end of the judicial investi-
gation. The removal of such a requirement, On 12 January 2021, the AFA published new
which only existed within the framework of a recommendations, which are based on three
judicial investigation, fully asserts the autono- inseparable pillars:
my of the CJIP procedure in relation to that of
the “appearance on prior admission of guilt” • the commitment of the management body to
procedure (comparution sur reconnaissance preventing corruption;
préalable de culpabilité, or CRPC). • the use of risk-mapping to acknowledge the
risks of corruption to which the company is
More recently, Law No 2021-1729 of 22 Decem- exposed through a risk map; and
ber 2021 for confidence in the judicial institution • the internal management of such risks
regulated the time limits for preliminary investi- through the measures implemented by the
gations, which are now limited to two years for Sapin II Law.
ordinary cases. A one-year extension can be
authorised by the Public Prosecutor. Nonethe-
134 CHAMBERS.COM
On 7 March 2022, the AFA and the National and a college of 22 European Prosecutors.
Financial Prosecutor’s Office jointly released a The French European Prosecutor is Frédéric
practical guide to anti-corruption internal inves- Baab.
tigations, which aims to contribute to: • The decentralised level is made up of Euro-
pean Delegated Prosecutors (EDPs), who are
• the effectiveness of an internal alert within located in each of the participating EU coun-
companies and institutions; and tries and in charge of investigating, prosecut-
• the quality of their compliance programmes ing and bringing to judgment cases where
as a whole. the financial interests of the EU are at stake.
Among the 82 EDPs appointed, four have
In April 2022, the AFA published a guide that been appointed in France (namely Emmanuel
addressed anti-corruption accounting controls, Chirat, Mona Popescu Boulin, Cécile Soriano
which should be established by deepening or and Savid Touvet). Law No 2020-1672 dated
complementing existing accounting controls in 24 December 2020 created an unprecedent-
order to target risk scenarios highlighted in the ed procedural framework in France, mixing
risk map. investigations (enquête) and judicial inquiry
(instruction). The four EDPs carry out the
In July 2022, ahead of France hosting the 2023 duties of the Public Prosecutor, in addition to
Rugby World Cup and the 2024 Olympic Games, those of the advocates general at the court of
the AFA and the Ministry for Sports released two appeal.
joint guides aimed at helping sports federations
and the Ministry of Sport to prevent and detect Indeed, the EDP replaces the investigating judge
probity offences during the organisation of com- (juge d’instruction), who is no longer involved.
petitions or the conduct of public policies pro- The EDP takes the judge’s place in making the
moting sport. necessary decisions regarding indictment (mise
en examen), interviews and confrontations, hear-
The AFA released a guide entitled Public Offi- ing of witnesses, admissibility of civil claims and
cials: The Risks Of Breaches Of Probity Concern- hearing of the plaintiff (recevabilité de la con-
ing Gifts And Invitations on 15 September 2022 stitution de partie civile et audition de la partie
to help public officials identify the risk scenarios civile), transport, letters rogatory (commission
to which they may be exposed when accepting rogatoire), forensic investigations, judicial super-
hospitality and define a set of appropriate rules vision (contrôle judiciaire), search warrants and
to protect themselves against such. summons.
1.4 Recent Key Amendments to National However, the power to place under house arrest
Legislation (assignation à résidence) or to issue arrest war-
The EPPO commenced its activities on 1 June rants (mandats d’arrêt) is assigned to the cus-
2021. The supranational prosecutor’s office tody judge (juge des libertés et de la détention),
operates on two levels. who also retains jurisdiction over pre-trial cus-
tody.
• The central level, located in Luxembourg,
comprises the European Chief Prosecutor
135 CHAMBERS.COM
At the end of the inquiry, the EDP will decide on the “bundle of indicators” method (méthode du
the direction of the case and issue an order – in faisceau d’indices) to determine the existence of
much the same way as an investigation judge – a bribe. The following indicators were therefore
under the supervision of a Permanent Chamber, considered relevant in a case involving three liti-
which consists of the Chief Prosecutor and two gious consultancy contracts:
European Prosecutors. In accordance with the
decision taken by the Permanent Chamber, the • the absence or inadequacy of precise and
EDP can close the case, bring the case before conclusive documents;
the Criminal Court of Paris, or propose alterna- • the inadequacy of the consultant’s material
tive measures to prosecution. and human resources in relation to the impor-
tance of the work claimed;
• the percentage-based remuneration; and
2. Classification and Constituent • the unjustified obtaining of the contract by the
Elements consultant’s client.
2.1 Bribery The same Court of Appeal specified that the

Under French criminal law, the prosecution of bundle of indicators identified in this decision is
bribery revolves around the status of the per- not exhaustive and that the court may consider
son bribed so that a specific offence exists for other elements in order to determine whether
each type of person. The French legislator has a bribe took place (Paris Court of Appeal, 15
criminalised bribery of domestic public officials September 2020, No 19/09058).
(Articles 433-1 and 432-11 of the Penal Code),
bribery of domestic judicial staff (Article 434-9 In each situation, a distinction is made between
of the Penal Code), bribery of domestic private active bribery and passive bribery, which allows
individuals (Articles 445-1 and 445-2 of the for the separate prosecution of the bribe-giver
Penal Code), bribery of foreign or international and the bribe-taker.
public officials (Articles 435-1 and 435-3 of the
Penal Code) and bribery of foreign or interna- Active bribery is the act of:
tional judicial staff (Articles 435-7 and 435-9 of
the Penal Code). • unlawfully offering advantages directly or
indirectly to a public official, judicial official
A bribe can be defined as any offer, promise, or private individual for the benefit of that
donation, gift or reward unlawfully offered or person (or a third party) in order to induce
requested that will induce or reward the perfor- them to perform or refrain from performing –
mance or the non-performance by a person of or because they have performed or refrained
an act pertaining to their position. from performing – any act pertaining to their
position, duties, mandate or activities (or
The scope of bribery is extensive under French facilitated thereby); or
law, covering all kinds of advantages irrespective • accepting the proposal of a person who
of their magnitude. In a decision handed down unlawfully requests – directly or indirectly at
in 2018 (Paris Court of Appeal, 10 April 2018, No any time – any such advantages in exchange
16/11182), the Paris Court of Appeal instituted for these acts.
136 CHAMBERS.COM
In contrast, passive bribery is the act whereby a • following the Sapin II Law, a public official
public official, judicial official or private individual from a foreign state (Articles 435-4 and 435-2
unlawfully requests or accepts advantages on of the Penal Code).
their own or a third party’s behalf either directly
or indirectly in order to perform or refrain from Furthermore, the Penal Code provides for spe-
performing – or because that person has per- cific offences if the influence-peddler is a public
formed or refrained from performing – any act official and the decision-maker is a domestic
pertaining to their position, duties, mandate or authority or public administration (Articles 433-
activities (or facilitated thereby). The mere receipt 1 and 432-11-2° of the Penal Code).
of a bribe thus constitutes an offence in itself.
2.3 Financial Record-Keeping
Bribery is also punishable when it only involves In practice, corruption may lead to accounting
private parties. stratagems that involve using false invoices in
order to conceal the benefits obtained or paid
The scope of French anti-bribery law encom- in financial statements. Therefore, it is also an
passes all managers, employees, volunteers and offence for the chair, directors, members of the
learned professionals, regardless of the entity executive or supervisory board, de jure or de
to which those persons are attached (be it an facto managers to publish or provide the share-
individual, legal entity, or grouping without legal holders with annual accounts that do not accu-
personality). rately reflect the company’s results. Individuals
may incur a prison term of up to five years and
2.2 Influence-Peddling a fine of up to EUR375,000 and additional pen-
influence-peddling (trafic d’influence) is an alties (Article L.241-3-3° and Article L.242-6-2°
offence that occurs when any private person or of the Commercial Code), whereas legal entities
official, who has real or apparent influence on the may incur a fine of up to EUR1.876 million.
decision-making of an authority, exchanges this
influence for an undue advantage (ie, an offer, 2.4 Public Officials
promise, donation, gift or reward). The French The following behaviours by public officials may
legislator has criminalised active and passive constitute criminal offences under French anti-
influence-peddling where the decision-maker is: corruption law:
• a domestic authority or public administration • embezzlement of public funds (concussion)

(Article 433-2 of the Penal Code); (Article 432-10 of the Penal Code);
• a domestic judicial official (Article 434-9-1 of • unlawful taking of interests (prise illégale
the Penal Code); d’intérêts) (Article 432-12 of the Penal Code);
• public official from a public international • misappropriation of public funds
organisation (Articles 435-4 and 435-2 of the (détournement de fonds publics) (Article 432-
Penal Code); 15 of the Penal Code); and
• a judicial official from an international court • favouritism (favoritisme) (Article 432-14 of the
(Articles 435-8 and 435-10 of the Penal Penal Code).
Code); or
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Following the High Authority for Transparency in 3. Scope

Public Life (HATVP)’s proposal, the definition of
the offence of unlawful taking of interests was 3.1 Limitation Period
modified by Law No 2021-1729, as follows: “The As of 1 March 2017, the limitation period for cor-
act, by a person in charge of public authority ruption offences was increased from three years
or entrusted with a public service mission or by to six years after the date the offence was com-
a person invested with a public elective man- mitted (Article 8 of the Code of Criminal Proce-
date, of taking, receiving or keeping, directly or dure).
indirectly, an interest likely to compromise their
impartiality, independence or objectivity in a In addition, to enable prosecution, the starting
company or in a transaction for which they have, point of the limitation period for secret (occultes)
at the time of the act, in whole or in part, the and concealed (dissimulées) offences has been
responsibility of ensuring the supervision, admin- delayed to the date on which they were or could
istration, liquidation or payment.” have been discovered (Article 9-1 of the Code of
Criminal Procedure). Nonetheless, in any event,
Therefore, in order to warrant prosecution, the prosecution against offences such as bribery
interest in question must be “likely to compro- would be time-barred 12 years after the date on
mise their impartiality, independence or objectiv- which the offence was committed.
ity”, whereas the previous law referred to “any
interest” (Article 432-12 of the Penal Code). 3.2 Geographical Reach of Applicable
Legislation
2.5 Intermediaries As a general rule, the perpetrator of an offence
Prosecution may concern parties (other than can be subject to criminal prosecution in France
the bribe-giver and the bribe-taker) who were when:
involved to varying degrees in committing the
offence. Specifically, under French criminal law, • the offence or any of its constituent elements
an individual or legal entity who knowingly – is committed in French territory;
by providing aid or assistance – facilitates the • the victim is French;
preparation or commission of an offence, or • the perpetrator is French and a similar offence
induces through any advantage or gives instruc- exists in the country in which it is committed;
tions to commit an offence, is considered to be or
an accomplice to that offence and is subject to • jurisdiction is granted to French courts by an
the same penalties as the principal perpetrator international convention to which France is a
of the offence (Articles 121-6 and 121-7 of the party.
Penal Code).
With regard to bribery and influence-peddling,
Furthermore, individuals and legal entities that the third condition was considerably softened by
engage in the concealment (Articles 321-1 and the Sapin II Law. The dual criminality requirement
321-12 of the Penal Code) or the laundering (Article 113-6 of the Penal Code) was abolished.
(Articles 324-1 and 324-9 of the Penal Code) of Since the entry into force of the Sapin II Law,
corruption offences may also be prosecuted. any French person who has committed bribery
– whether as a bribe-taker and/or a bribe-giver
138 CHAMBERS.COM
– or influence-peddling outside French territory Code). Public Prosecutors must first establish
can now be prosecuted in France in all circum- the material existence of the offence committed
stances. Moreover, French courts still have juris- by an individual and then demonstrate that the
diction over an indicted foreigner who did not perpetrator was a body or representative of the
commit any unlawful act in French territory, as legal entity.
long as their acts had inextricable links with acts
committed by other indicted persons in France However, the liability of legal entities does not
(Court of Cassation, Criminal Chamber, 20 Sep- preclude individuals from also being liable if they
tember 2016, No 16-84.026). are perpetrators of or accomplices to an offence.
Prosecution against an individual occurs inde-
In addition, application by French courts of the pendently of any prosecution that may be initi-
principle of non bis in idem regarding countries ated against the legal entity.
outside the EU differs according to the basis of
their jurisdiction. There is also a risk of civil liability under Article
1240 and/or Article 1242 paragraph 5 of the Civil
• In the case of extraterritorial jurisdiction, this Code in the event of a sentence for corruption.
principle applies to foreign decisions and
agreements that have become final (Article A compensation claim may be carried out by:
113-9 of the Code of Criminal Procedure).
• In the case of territorial jurisdiction, the • any person who has suffered damage result-
French Court of Cassation rejects the applica- ing from corruption (eg, a competitor of the
tion of the non bis in idem principle to foreign offending company); or
decisions and agreements. • approved anti-corruption associations, such
as Transparency International France, Anticor
The principle of non bis in idem may be invoked and Sherpa (so far), which are entitled to act
in intra-EU relations, regardless of the territorial as a civil party in any criminal proceedings
or extraterritorial basis of French jurisdiction. relating to corruption (Article 2-23 of the Code
of Criminal Procedure).
Whenever one of the constituent elements of
the corruption offence has been committed in Legal entities may be required to pay compen-
France, French courts have jurisdiction (Court of sation even in the event that a CJIP is reached.
Cassation, Criminal Chamber, 17 January 2018,
No 16-86.491; Court of Cassation, Criminal In the event of a merger by absorption, the
Chamber, 14 March 2018, No 16-82.117; Paris French Court of Cassation has ruled for the
Court of Appeal, 15 May 2020, No 18/03310). first time that the acquiring company can be
criminally liable for an offence committed by
3.3 Corporate Liability the organs or representatives of the absorbed
Legal entities may also be criminally liable company prior to the merger (Court of Cassa-
for all criminal offences, including corruption tion, Criminal Chamber, 25 November 2020, No
offences, provided that the offences are com- 18-86.955). This new interpretation, in line with
mitted on their behalf by their corporate bod- ECJ case law, is applicable to:
ies or representatives (Article 121-2 of the Penal
139 CHAMBERS.COM
• mergers concluded as of 25 November 2020; 4.4 Exempt Sectors/Industries

or In France, no sector is excluded from the scope
• mergers concluded at any date if their objec- of corruption law.
tive was expressly to avoid the absorbed
company’s criminal liability (French Court of 4.5 Safe Harbour or Amnesty Programme
Cassation, 13 April 2022, No 21-80.653). Co-operation with Investigators
Under French law, perpetrators of offences who
co-operate with investigators and prosecutors
4. Defences and Exceptions are not entitled to special treatment. However,
the court may consider the co-operation of the
4.1 Defences accused person during the investigation and
The French anti-corruption law does not provide throughout the proceedings – and, in the case of
for any specific defences. legal entities, the adoption of compliance meas-
ures – to be mitigating factors in determining the
Nevertheless, per Article 132-59 of the Penal quantum of the penalty to be imposed.
Code, the perpetrator may be exempted from
penalties, provided that: Self-Reporting
The Sapin II Law introduced the opportunity for
• their social rehabilitation has been estab- perpetrators of, or accomplices to, the bribery
lished; of public officials or judicial staff to have their
• the damage caused by the offence has been penalties reduced by half if – by informing the
remedied; and administrative or judicial authorities – they made
• the disturbance arisen from the offence has it possible to put a stop to the offence or identify
ceased. any other perpetrators or accomplices (Articles
432-11-1, 433-2-1, 434-9-2, 435-6-1 and 435-
The judge has full discretion in granting any such 11-1 of the Penal Code). This does not apply in
exemption. cases of private bribery.
4.2 Exceptions Leniency

As explained in 4.1 Defences, the French anti- French anti-corruption law does not provide for
corruption law does not provide for any specific any leniency measures, apart from the afore-
defences. mentioned self-reporting regime. However, the
court is free to adjust the penalty by taking vari-
4.3 De Minimis Exceptions ous factors into account.
Conviction for corruption is possible even where
the amounts at stake are small. However, this Admission of Guilt
may be viewed as a mitigating factor when the French law does not yet have an equivalent
court determines the quantum of the penalty to to the US process of plea-bargaining. How-
be imposed. ever, Law No 2011-1862 of 13 December 2011
extended the scope of the CRPC to corruption
offences. Under this procedure, the Public Pros-
ecutor’s Office is entitled to offer directly and
140 CHAMBERS.COM
without a trial – either on its own initiative or at • the voluntary disclosure of the facts by the
the request of the accused (or their lawyer) – one legal entity;
or more penalties to a natural or legal person • the degree of co-operation with the judicial
who acknowledges the acts of which they are authority demonstrated by the managers
accused (Article 495-7 of the Code of Criminal of the legal entity (particularly with regard
Procedure). to enabling the identification of the persons
involved in the act of corruption in question).
If the accused accepts the sanction(s) proposed,
such sanction(s) still have to be approved by the For legal entities, the main benefit of the CJIP is
presiding judge of the High Court. (For an exam- the absence of any acknowledgement of guilt,
ple of a recent case where the CRPC was not which also means the absence of any mention in
approved, see 7.6 Recent Landmark Investiga- the judicial record (contrary to the CRPC proce-
tions or Decisions Involving Bribery or Corrup- dure). Another advantage is protection from the
tion.) The court judgment is deemed a convic- risk of exclusion from public procurement proce-
tion. dures – a risk to which they would be exposed in
the event of conviction by a court for bribery of
On 17 May 2022, the Criminal Chamber of the domestic or foreign public officials (Article 131-
Court of Cassation confirmed the decision of 39 of the Penal Code and Article L.2141-1 of the
the President of the Paris High Court to declare Code of Public Procurement).
inadmissible the second homologation request
submitted by the Public Prosecutor’s Office fol- Under this procedure, the Public Prosecutor
lowing the President’s refusal to approve the and the investigating magistrate are entitled to
penalty proposed by the Public Prosecutor initiate a settlement before the initiation of pros-
(French Court of Cassation, 17 May 2022, No ecution or before the end of the investigation
21-86.131). In this case, three months after the respectively (Article 180-2 of the Code of Crimi-
President refused, the Public Prosecutor had nal Procedure). (This must be at the request of,
referred a new penalty proposal to the Presi- or in agreement with, the Public Prosecutor in
dent, which the latter declared inadmissible. The the latter case.)
Public Prosecutor’s Office then appealed to the
Court of Cassation, which stated that the pros- The accused legal entity is then offered the
ecuting authorities are unable to submit a new chance to enter into an agreement containing
request for approval following the first refusal to the obligation(s) to:
approve a CRPC and must refer the case to an
investigating judge or directly to a court. • set up a compliance programme for a maxi-
mum of three years under the supervision of
Settlement the AFA;
According to the circular issued by the French • compensate any identified victims in an
Department of Justice on 2 June 2020, the amount and following modalities determined
opportunity to enter into a CJIP depends on the in the convention; and/or
following factors: • pay a public interest fine that is:
• the legal entity’s lack of criminal record;
141 CHAMBERS.COM
(a) proportionate to the advantages gained • holding public office;

from the offences; • engaging in the professional or social activ-
(b) limited to 30% of the annual average ity – during the performance of which, or in
turnover (calculated on the basis of the connection with the performance of which,
last three turnovers available); and the offence was committed – for a period of
(c) presented with the option to spread the up to five years;
penalty over a maximum period of one • directing, administering, managing or control-
year. ling a company in any capacity, permanently
or for a period of up to 15 years.
During a subsequent validation hearing, the
judge decides whether to validate the proposed Additionally, publication of the judgment may be
agreement. Once validated, the legal entity has ordered and the item that was (intended to be)
ten days to withdraw from the agreement. Fol- used to commit the offence – or any item that is
lowing Law No 2020-1672 dated 24 December a proceed of the offence – may be confiscated
2020, each CJIP shall be published on the Min- (Articles 433-22, 433-23, 432-17, 434-44 of the
istry for Justice and Ministry for Economy’s web- Penal Code).
sites. The AFA relays these publications on its
website for conventions dealing with corruption. Legal entities are liable for a fine of EUR5 million,
which may be increased to double the proceeds
generated by the offence, and ancillary penalties
5. Penalties (Articles 433-25 and 434-47 of the Penal Code).
5.1 Penalties on Conviction Bribery of domestic judicial staff for the benefit
Individuals who commit the offences of active or to the detriment of a person who is the sub-
bribery and passive bribery of domestic public ject of criminal prosecution is punishable by a
officials and judicial staff may be imprisoned for 15-year term of imprisonment (Article 434-9 of
a term of up to ten years, as well as ordered to the Penal Code).
pay a fine of up to EUR1 million. The fine may be
increased to double the proceeds generated by Bribery of Foreign Officials
the offence (Articles 433-1-1°, 432-11-1°, 434-9 Active or passive bribery of foreign public offi-
of the Penal Code). From 20 September 2019, cials or international judicial staff is punishable
individuals face a fine up of up to EUR2 million by penalties that are similar to the ones provided
if they commit such offences: for bribery of domestic officials (Articles 435-3,
435-1, 435-14 and 435-15, 435-9, 435-7 and
• in an organised gang; and 435-15 of the Penal Code).
• with an impact on the revenue collected or
the expenditure incurred by any EU office or Bribery of Private Individuals
institution. Active and passive bribery of private individuals
by other individuals is punishable by a five-year
Ancillary penalties may also be imposed, such term of imprisonment and a fine of EUR500,000,
as prohibitions from: which may be increased to double the proceeds
generated by the offence (Articles 445-1 and
142 CHAMBERS.COM
445-2 of the Penal Code), as well as ancillary offence was committed (Article 132-9 §2 of
penalties (Article 445-3 of the Penal Code). Legal the Penal Code); and
entities are liable for a fine of EUR2.5 million, • the perpetrator of acts of corruption has been
which may be increased to double the proceeds convicted in the past for the same corrup-
generated by the offence, as well as ancillary tion offence and fewer than five years have
penalties (Article 445-4 of the Penal Code). elapsed between the expiry or prescription
date of the first penalty and the date on which
Influence-Peddling the offence was repeated (Article 132-10 of
Penalties similar to bribery are provided for influ- the Penal Code).
ence-peddling (Articles 433-2, 434-9-1, 434-9-1,
435-4, 435-2, 435-8 and 435-10 of the Penal Similar provisions apply to legal entities that
Code). have been convicted for a felony or misdemean-
our prior to committing acts of bribery (Articles
Unlawful Taking of Interests 132-13 and 132-14 of the Penal Code).
Unlawful taking of interests remains punishable
by a five-year term of imprisonment and a fine of Public Interest Fines in the Event of a Judicial
EUR500,000, which may be increased to double Public Interest Agreement
the proceeds generated by the offence (Article The amount of the public interest fine may be
432-12 of the Penal Code). increased in the event of bribery of public offi-
cials or when the company has:
Repeated Offences
In the event of a repeated offence, the maximum • already been convicted of bribery;
penalties incurred are doubled. As regards indi- • used its resources to conceal acts of corrup-
viduals, this applies when: tion; or
• committed repeated and systematic acts of
• the perpetrator of acts of corruption pun- bribery.
ishable by a ten-year prison term has been
convicted in the past for a felony or any mis- However, the amount of the public interest fine
demeanour punishable by a ten-year prison may be reduced if the company has:
term and fewer than ten years have elapsed
between the expiry or prescription date of the • spontaneously disclosed acts of corruption
first penalty and the date on which the new before the opening of an investigation and
offence was committed (Article 132-9, Sec- within a reasonable time;
tion 9 of the Penal Code); • co-operated extensively with the Public Pros-
• the perpetrator of acts of corruption punish- ecutor;
able by a term of imprisonment of more than • carried out internal investigations; or
one year and less than ten years has been • implemented corrective measures.
convicted in the past for a felony or any mis-
demeanour punishable by a ten-year prison 5.2 Guidelines Applicable to the
term and fewer than five years have elapsed Assessment of Penalties
between the expiry or prescription date of the The discretion of judges to determine penalties
first penalty and the date on which the new is one of the fundamental principles of French
143 CHAMBERS.COM
criminal law. The judge therefore has full discre- integrating such code into the internal regula-
tion to choose whichever penalties they deem tions;
appropriate from those applicable to the offence • implementing an internal alert system;
and to determine their quantum. There are no • establishing a risk map detailing possible
minimum sentences, with the only restriction external solicitations, according to the sector
being the maximum prescribed by law. and geographical areas;
• implementing a procedure for evaluating cus-
In all cases, however, the judge must explain the tomers, first-tier suppliers and intermediaries;
grounds for their decision if they impose a prison • carrying out internal or external accounting
sentence that is not suspended and do not allow controls;
for adjustments to the penalty. • providing training to the most exposed man-
agers and staff;
• introducing disciplinary sanctions; and
6. Compliance and Disclosure • establishing a system for internal monitoring
and evaluation of the measures taken.
6.1 National Legislation and Duties to
Prevent Corruption The legislator has empowered the AFA to assess
Article 17 of the Sapin II Law requires the imple- the quality and effectiveness of the preventive
mentation of a corruption prevention plan for: measures. In the event of non-compliance, its
enforcement committee has the authority to
• chairpersons, general managers and com- impose graduated sanctions (ranging from warn-
pany managers; ings to fines of up to EUR200,000 for individuals
• members of the management boards of pub- and EUR1 million for legal entities) and injunc-
lic limited companies; and tion procedures to bring internal procedures into
• chairpersons and general managers of public line – irrespective of whether any finding of a
industrial and commercial establishments that criminal offence in relation to acts of corruption
either: or influence-peddling is communicated to the
(a) employ at least 500 employees; or Public Prosecutor.
(b) belong to a group with a registered head
office in France and a turnover (or con- 6.2 Regulation of Lobbying Activities
solidated turnover) in excess of EUR100 Article 25 of the Sapin II Law sets out the legal
million. regime applicable to lobbying activities in
France. The objectives were to identify individu-
Persons subject to this obligation must there- als and companies which should be considered
fore take measures under the supervision of the as lobbyists and to provide a framework for their
AFA to prevent and detect the commission – in intervention by imposing ethical obligations and
France or abroad – of acts of corruption or influ- sanctions on them.
ence-peddling by:
According to the HATVP’s guide published in
• adopting a code of conduct, in which the June 2022, three cumulative conditions are nec-
behaviour to be prohibited is described, and essary to be qualified as a lobbyist.
144 CHAMBERS.COM
• Being: the Prosecutor’s Office in Bordeaux and Basse-

(a) a legal entity (private law entity, public Terre after they were revealed during controls.
establishment) whose director, employees
or members carry out a lobbying activity; Per Article L.561-2 12° of the Monetary and
or Financial Code, public officials and civil serv-
(b) an individual who professionally carries ants are also required to report to Tracfin (the
out a lobbying activity on an individual agency responsible for dealing with illegal finan-
basis. cial circuits) all transactions involving sums that
• Carrying out a lobbying activity as: they know or suspect – or have good reason to
(a) a main activity – ie, more than half of an suspect – either:
individual’s time over six months; or
(b) a regular activity – ie, at least ten commu- • originate from an offence punishable by a
nications over the last 12 months. prison sentence of more than one year; or
• Taking the initiative to contact a public official • contribute to financing terrorism.
to influence a public decision.
In the private sector, statutory auditors are
Companies and individuals meeting the above- required – under criminal penalties (Article
mentioned conditions must register with a dedi- L.820-7 of the Commercial Code) – to report any
cated digital register. criminal acts of which they become aware to the
Public Prosecutor.
Since 1 July 2022, the scope of this registration
obligation has been extended at the HATVP’s 6.4 Protection Afforded to Whistle-
initiative to lobbyists involved with other public Blowers
officials holding certain local executive functions Since the Sapin II Law, under certain conditions
(such as presidents of regional or departmen- whistle-blowers benefit from immunity against
tal councils, mayors of municipalities with more retaliatory measures by their employer (Article
than 100,000 inhabitants and directors of hos- L.1132-3-3, Section 2 of the Employment Code)
pitals). and against criminal prosecution for breach of
secrecy (Article 122-9 of the Penal Code).
6.3 Disclosure of Violations of Anti-
bribery and Anti-corruption Provisions Law No 2022-401 of 21 March 2022 aimed at
In the public sector, Article 40 of the Code of strengthening the protection of whistle-blowers
Criminal Procedure requires all public officials entered into force on 1 September 2022. It cor-
and civil servants who – in the course of per- rected some of the limitations of the protec-
forming their duties – become aware of a felony tion system introduced by the Sapin II Law that
or misdemeanour to inform the Public Prosecu- were highlighted in a report of July 2021 (see
tor’s Office and provide it with all relevant infor- 8.1 Assessment of the Applicable Enforced
mation. In 2020, the AFA notified three cases Legislation).
involving acts of bribery, embezzlement of public
funds, favouritism or unlawful taking of interests Broadening the Definition of a Whistle-Blower
to the National Financial Prosecutor’s Office and Firstly, this law modified the definition provided
for in the Sapin II Law, as follows:
145 CHAMBERS.COM
“ An individual who reveals or discloses, without judicial authority or to a European or na-

direct financial compensation and in good faith, tional institution);
information relating to: • there is an imminent and serious danger;
• referring the matter to one of the competent
• a crime or misdemeanour; authorities would put the whistle-blower at
• a threat or harm to the general interest; risk of reprisals or would not allow the subject
• a breach or an attempt to conceal a breach of the disclosure to be effectively remedied,
of: owing to the particular circumstances of the
(a) an international commitment properly case – in particular, if evidence may be con-
ratified or approved by France; cealed or destroyed or if the whistle-blower
(b) a unilateral act issued by an international has serious grounds for believing that the
organisation on this basis; or authority may have a conflict of interest or be
(c) EU law or a national law or regulation”. in collusion with the reporter of the facts or
implicated in those facts (Article 8, III of the
The definition of a whistle-blower was made more Sapin II Law).
flexible as it is no longer necessary for whistle-
blowers to act in a “disinterested manner” (which Strengthening Whistle-Blower Protection
was an ambiguous notion, particularly in cases Thirdly, in order to facilitate reports, Law No
of conflict between the whistle-blower and their 2022-401 improved whistle-blowers’ protection
employer); instead, they must act without “direct by extending the list of prohibited retaliation
financial compensation”. Moreover, in a profes- measures – for example, intimidation and dam-
sional context, the whistle-blower is no longer age to reputation, especially on social media
required to have personal knowledge of the facts networks (Article 10-1, III of the Sapin II Law).
subject to their report.
The non-liability of whistle-blowers due to their
Revamping the Reporting Process report was also extended. They cannot be held
Secondly, Law No 2022-401 revamped the liable for any damage caused by their good faith
reporting process. A whistle-blower is no longer report. Nor can they be held criminally liable for
compelled to report within organisation as a pri- intercepting or removing confidential documents
ority. Instead, they may choose to report either that contain information to which they had lawful
internally to the supervisor, the employer or any access (Article 10-1 of the Sapin II Law).
designated adviser or externally to an adminis-
trative, judicial or professional authority (Article The maximum fine that may be imposed on
8, II of the Sapin II Law). plaintiffs for abusive or dilatory complaints was
increased from EUR30,000 to EUR60,000 (Arti-
The report would only be directly made public if: cle 13 of the Sapin II Law).
• no appropriate action has been taken within: On 3 October 2022, France issued Decree No
(a) three months of making an external alert 2022-1284 governing procedures for collecting
(regardless of whether it was preceded by and processing whistle-blowers’ reports. This
an internal alert); or provides guidance on the application of Law No
(b) six months of reporting the alert to the 2022-401 to those entities – ie, companies with
146 CHAMBERS.COM
more than 50 employees, municipalities with of such information is punishable by two years’
more than 10,000 inhabitants, and state admin- imprisonment and a EUR30,000 fine.
istrations – that are under an obligation to set
up appropriate alert management procedures to Decree No 2022-1284 also provides for a list of
escalate reports from members of the personnel the public authorities that shall establish such a
or external staff (Article 8 of the Sapin II Law). procedure, depending on the field concerned.
Each authority shall review its procedure at least
The above-mentioned entities shall set up a every three years, taking into account its experi-
channel for receiving alerts, which allows any ence and that of other competent authorities.
person to send an alert in writing or orally. The
channel permits the transmission of any element The AFA is responsible for dealing with reports
– whatever its form or medium – that is likely to of corruption acts.
support the alert.
6.5 Incentives for Whistle-Blowers
The procedure provides that the author of the The protective measures against dismissal,
alert must be informed in writing of the receipt obstruction, identity disclosure and criminal
of the alert within seven working days. prosecution for breach of secrecy listed in 6.4
Protection Afforded to Whistle-Blowers can be
The entity shall also inform the author of the viewed as sufficient incentives to report misde-
alert in writing of the measures envisaged or meanours. Other incentives, such as financial
taken to assess the accuracy of the allegations rewards, do not apply – except in the field of
and, where appropriate, to remedy the subject tax fraud.
matter of the alert, as well as the reasons for
such measures. The author of the alert must be 6.6 Location of Relevant Provisions
informed of these measures within a reasonable Regarding Whistle-Blowing
period of time – ie, not more than three months The main national legal provisions relating to
after the acknowledgement of receipt of the alert whistle-blowing are enshrined in the Penal Code
or, in the absence of such acknowledgement, (Article 122-9) and the Employment Code (Article
within three months of the expiry of a period of L.1132-3-3, Section 2).
seven working days following the alert.
The author of the alert will be informed in writing 7. Enforcement

of the closure of the file.
The channel must guarantee the impartial han- corruption Laws
dling of the report and ensure the confidential- See 1. Legal Framework for Offences.
ity of the information collected, particularly with
regard to the whistle-blower’s identity. In this 7.2 Enforcement Body
respect, Article 9 of the Sapin II Law seeks to In French criminal law, the powers to prosecute
guarantee the strict anonymity of the whistle- and convict perpetrators of acts of corruption
blower and the information provided throughout belong to judicial authorities and are not granted
the reporting process. The unlawful disclosure to administrative bodies.
147 CHAMBERS.COM
The Public Prosecutor’s Office is empowered et de Recouvrement des Avoirs Saisis et Con-
to decide whether it is appropriate to institute fisqués en Matière Pénale, or AGRASC) was
proceedings, although civil claimants may also created by Law No 2010-768 of 9 July 2010.
initiate prosecution. The AGRASC’s duties include recovering assets
seized in criminal proceedings and conducting
On 1 February 2014, a National Financial Pros- pre-judgment sales of confiscated assets when
ecutor was created to specialise in economic they are no longer needed as evidence or if they
and financial matters and, more specifically, in may lose value (2,453 goods were sold in 2021,
corruption and tax fraud matters. representing EUR13.2 million). Tracfin is the sole
centre for collecting suspicions reported by the
Cases investigated and prosecuted by the professions regulated by the AML measures. It
National Financial Prosecutor are brought to receives all reports concerning suspected acts
an investigating magistrate in Paris for deeper of corruption.
investigation and/or directly to the dedicated
Criminal Chamber of the Paris High Court (32nd As mentioned in 6.1 National Legislation and
Chamber) for trial. Duties to Prevent Corruption, the AFA is entitled
to inform the Public Prosecutor about any act
Aside from those specific powers, prosecutors of corruption of which it might become aware
at eight inter-regional specialised courts are (Article 3, Section 6 of the Sapin II Law). In addi-
also granted expanded territorial jurisdiction tion, it monitors the proper implementation of
over a certain number of economic and financial the new ancillary penalty that can be imposed by
offences, including some corruption offences, judges on legal entities under Article 131-39-2
in highly complex matters. After carrying out a of the Penal Code (ie, setting up a compliance
pre-trial investigation, the prosecutor may bring programme).
the case to an investigating magistrate from the
same inter-regional specialised court for deeper For the execution of their tasks, AFA agents are
investigation and/or directly to a specialised entitled to request the communication of any
criminal chamber of this court for trial. professional document (in any format) or any
information held by the entity controlled. They
The various prosecutorial bodies are assist- can verify on the spot the accuracy of the pro-
ed by a specialised investigative service, the vided information and interview any person who
Central Office for the Fight Against Corruption might be helpful. Any obstruction may be pun-
and Financial and Tax Offences (Office Central ished by a fine of EUR30,000 (Article 4 of the
de Lutte contre la Corruption et les Infractions Sapin II Law).
Financières et Fiscales, or OCLCIFF), which was
created in 2013. In 2021, the AFA carried out 34 new controls,
comprising six “enforcement controls” – includ-
A number of administrative bodies have also ing one “compliance programme” control dur-
been created to deal with tasks that may relate ing the execution of a CJIP signed on 9 Febru-
to corruption issues. An Agency for the Manage- ary 2021 between a French major multinational
ment and Recovery of Seized and Confiscated transport and logistics company and the Nation-
Assets in Criminal Matters (Agence de Gestion
148 CHAMBERS.COM
al Financial Prosecutor’s Office – and 28 “own- Pursuant to Decree No 2017-329 of 14 March

initiative” controls. 2017, AFA-empowered agents are provided with
an authorisation card when they carry out on-
Born from the observation of an unmet need the-spot checks, which can only take place in
for co-operation with anti-corruption authori- business premises (excluding the private per-
ties at the operational level, the AFA – together son’s home) and during working hours. The
with the Italian National Anti-corruption Author- representative of the entity must be informed
ity (ANAC) and the Serbian Anti-corruption that they can be assisted by the person of their
Agency – launched an international network of choice.
corruption-prevention authorities known as the
NCPA Network. Their initiative aims to provide 7.4 Discretion for Mitigation
an international operational platform for the The Public Prosecutor is free to initiate prosecu-
exchange of technical information and the shar- tion against a person suspected of an offence,
ing of good practices. In December 2021, the pursuant to the principle of discretionary pros-
ANAC released a study entitled Using Innovative ecution (Article 40 of the Code of Criminal Proce-
Tools and Technologies to Prevent and Detect dure) and in light of the criminal policy defined by
Corruption, which contains contributions from the Ministry for Justice and the General Prosecu-
NCPA members and brings together practical tor (Article 39-1 of the Code of Criminal Proce-
examples of best practice in the use of infor- dure). In any given matter, the Public Prosecutor
mation and communication technologies for the can discretionarily decide whether to:
prevention of corruption.
• initiate prosecution by summoning the
Following the European Colloquium on Ethics accused person directly before a criminal
and Transparency, which was organised in Paris court or by asking an investigating magistrate
on 9 June 2022 by the HATVP in the context of to carry out deeper investigations;
the French Presidency of the Council of the Euro- • implement alternatives to prosecution (such
pean Union, 11 public ethics authorities from EU as a CRPC or a judicial public interest agree-
member states adopted a joint declaration and ment); or
created the European Public Ethics Network. Its • drop the case (Article 40-1 of the Code of
members intend to adopt a founding charter in Criminal Procedure).
the coming months and plan to meet in autumn
2022 to discuss the issue of mobility between 7.5 Jurisdictional Reach of the Body/
the public and private sectors. Bodies
See 7.4 Discretion for Mitigation.
7.3 Process of Application for
Documentation 7.6 Recent Landmark Investigations or
Requests for information from the Public Prose- Decisions involving Bribery or Corruption
cutor or a police officer can be sent to the holder In a decision handed down on 1 March 2021
of relevant information “by any means” (Articles by the 32nd Chamber of the Paris High Court,
60-1 and 77-1-1 of the Code of Criminal Pro- a former French President, his lawyer and a
cedure). former magistrate were convicted of bribery
of judicial staff and influence-peddling. In this
149 CHAMBERS.COM
case, investigations focused on the conclusion to answer questions of the Paris High Court’s
of a bribery pact: it was alleged by the Finan- President.
cial National Prosecutor that the magistrate had
given information on a procedure pending before On 7 September 2022, the President of the
the Criminal Chamber of the Court of Cassation French Rugby Federation was charged before
in exchange for a position at the Monaco Council the 32nd Chamber of the Paris High Court
of State. with the offences of passive bribery and influ-
ence-peddling. He was accused of using his
The court found evidence of a bribery pact in influence to ensure the awarding of a jersey
the “body of serious, precise and concordant sponsor contract for the French national team
indicators resulting from the very close ties of to his co-defendant (the owner of Montpellier
friendship between the protagonists, business Hérault Rugby Club) and obtain a reduction in
relations reinforcing these ties, common inter- the sanctions initially imposed by the National
ests tending towards the same goal – namely, Rugby League Disciplinary Committee against
the obtaining of a decision favourable to the Montpellier in exchange for, notably, an image
interests of the former French President – and contract between his company and that of his
telephone taps demonstrating the acts carried co-defendant.
out and the compensation offered”.
The Public Prosecutor requested that both
The three defendants were sentenced to three defendants be punished by a three-year term
years’ imprisonment (two of which were sus- of imprisonment (including one non-suspended
pended). The former French President and his year) and fines amounting to EUR50,000 and
lawyer appealed this decision (Paris High Court, EUR200,000 against the French Rugby Federa-
1 May 2021, No 14056000872). tion President and his co-defendant respectively.
In a decision handed down on 21 January 2022 On 13 December 2022, the Paris High Court
by the 32nd Chamber of the Paris High Court, sentenced the President of the French Rugby
four individuals belonging to the same former Federation (who announced that he would
French President’s inner circle were convicted appeal the decision) to two years’ suspended
of favouritism, misappropriation of public funds, imprisonment and his co-defendant to eighteen
complicity and concealment of these offences. months’ suspended imprisonment.
This judgment followed an investigation into the
alleged irregularity of public contracts agreed On 8 November 2022, three former inmates of
between the Presidency of the French Repub- the Fresnes prison went on trial before the Cré-
lic and several polling firms in violation of the teil High Court for bribery of a public official (the
rules of the Public Procurement Code. Although former prison director, who was prosecuted for
four out of six defendants were convicted in this passive bribery). They were accused of having
case, the former French President was never obtained, in exchange for money, services to
involved as he remained covered by presidential improve their ordinary prison life – for example,
immunity as guaranteed in the French Constitu- no searches, daily showers, freedom of move-
tion. However, he was summoned to appear as ment, and benevolence in the event of discipli-
a witness during a hearing, where he refused nary problems. The director admitted to accept-
150 CHAMBERS.COM
ing EUR5,000 offered by one of the defendants provided by a subsidiary of the group to Togo-
in exchange for information on his case and a lese presidential candidates in exchange for
guarantee that everything would be fine were container terminal concessions in the port of
he to be re-incarcerated. The Public Prosecutor Lomé. The parent company committed to:
requested that a penalty of four years’ imprison-
ment be imposed upon the public official. The • pay a public interest fine of EUR12 million;
judgment will be rendered on 11 January 2023. and
• submit, for two years, to audits that will be
On 2 December 2022, the Marseille High Court carried out by the AFA on the existence and
sentenced one former director of the Bouches- relevance of the company’s anti-corruption
du-Rhône departmental council (between 2008 programme (with the stipulation that the costs
and 2016) to five years’ imprisonment, after incurred will be borne by the company up to a
he was found guilty of bribery, favouritism and maximum of EUR4 million).
criminal association. The proceedings estab-
lished that he had traded privileged information The CJIP was validated by the homologating
and confidential documents in the context of the judge of the Paris High Court during a public
award of public contracts. hearing (Validation Order of the Paris High Court,
26 February 2021, No 28/2021).
In a case where the court of appeal had invali-
dated the prosecution of individuals for bribery Three company’s executives appeared at the
on the grounds that the reasonable time limit had same public hearing for the homologation of
not been respected and the right to a fair trial, their CRPCs, as individuals are excluded from
the adversarial principle, and the balance of the the legal scope of the CJIP procedure. They
rights of the parties had all been infringed, the admitted their guilt, acknowledged criminal
Court of Cassation – in its most solemn session qualifications and agreed to pay the maximum
– ruled on 9 November 2022 that the excessive incurred fine of EUR375,000.
length of a procedure cannot lead to its invalida-
tion when every other aspect of the procedure is However, the judge refused to homologate the
regular. However, courts must take into account CRPCs, finding that the alleged offences “seri-
the effects of the time that has elapsed on the ously undermined public economic order” and
merits of the case (French Court of Cassation, 9 “undermined Togo’s sovereignty” (Paris High
November 2022, No 21-85.655). Court, 26 February 2021).
As regards non-trial resolutions, a judicial public This case illustrates the difficulty of co-ordinat-
interest agreement was reached on 9 February ing negotiated justice procedures in France.
2021 between the National Financial Prosecu- Although Article 495-14 of the French Code of
tor’s Office and two companies belonging to a Criminal Procedure provides that parties cannot
major transport, logistics and communication mention the failed CRPC nor the content of the
group. The CJIP concerned acts of bribery of negotiation during the subsequent trial, defend-
foreign officials and complicity in the misuse ants who already admitted their guilt during the
of corporate assets between 2009 and 2011 in CRPC procedure are in practice deprived of
relation to communications consulting services their right to defend their case in court, espe-
151 CHAMBERS.COM
cially when the hearing was highly mediated. The since 2020. France was awarded a score of 71
lack of an effective appeal against the refusal on a scale of 0 to 100 (where 0 is highly corrupt).
to homologate the CRPC reinforces this self-
incrimination risk. According to the 2021 AFA annual report, pros-
ecutors handled 834 proceedings relating to
On 7 July 2022, the President of the Paris Court probity offences in 2020. Finally, 359 of the pros-
validated two judicial public interest agreements ecuted probity offences resulted in a definitive
reached between the National Financial Pros- conviction.
ecutor’s Office and two French companies with
regard to the offence of bribery of foreign offi- Assessment of the Sapin II Law
cials. The CJIP of 9 June 2022 followed a pre- On 7 July 2021, an information report by two
liminary investigation into executives of a French Members of Parliament was released, aiming to
engineering conglomerate who were charged evaluate the Sapin II Law.
with bribing public officials in order to obtain
contracts with a major Angolan state-owned The first part was devoted to the prevention and
company operating in the oil industry. The com- detection of corruption as a whole and especially
pany committed to pay a public interest fine of to the AFA’s action. The report found that private
EUR3.5 million. players had adopted the obligations issued by
the Sapin II Law whereas dissemination of the
The CJIP of 20 June 2022 followed a prelimi- system remained very limited in the public sec-
nary investigation into alleged bribes estimated tor. Besides, the report noted that the results of
at EUR6 million that would have been paid by the extraterritorial application of these new tools
the company at the request of its local subcon- – and, in particular, the prosecution of acts of
tractor in order to corrupt a government official corruption of foreign public officials by foreign
within the framework of a project designed to companies carrying out part of their activity in
establish a new national identification system in France – were non-existent. They therefore sug-
Bangladesh. The company agreed to pay a pub- gested that the obligations of Article 17 should
lic interest fine of nearly EUR8 million. be imposed on subsidiaries of foreign groups
established in France.
7.7 Level of Sanctions Imposed
See 5. Penalties. The second part concerned the CJIP procedure.
In this respect, the authors of the report were not
in favour of applying the CJIP procedure to indi-
8. Review viduals because, in their view, such an extension
would make it possible to exempt the perpetra-
8.1 Assessment of the Applicable tors of acts of corruption – thus placing acts of
Enforced Legislation corruption into a separate category of offences
Key figures for the year 2021 have been pub- even though they are particularly serious.
lished. In 2021, Transparency International
ranked France was ranked 22nd in Transparen- The third part was devoted to the protection of
cy International’s Corruption Perceptions Index whistle-blowers. To the authors of the report, the
for the public sector, thereby gaining one place status of whistle-blowers seemed insufficiently
152 CHAMBERS.COM
protective and could be consolidated by trans- (in comparison with only 33 between 2000 and
posing the Directive (EU) 2019/1937 of 23 Octo- late 2012).
ber 2019. In particular, they noted that:
However, the OECD emphasised the relatively
• the criteria of disinterestedness and good low number of cases resolved in light of the
faith excluded many whistle-blowers from the country’s economic situation and trade profile,
protection provided by the law; and as well as the number of foreign bribery allega-
• the hierarchy of reporting channels often tions reported in the media. Therefore, it made
exposed whistle-blowers to reprisals. the following recommendations to:
The French legislator has taken these findings • take the necessary legislative measures to
into account by the enactment of Law No 2022- extend the duration of preliminary investiga-
401 aimed at improving the protection of whis- tions in foreign bribery cases and thereby
tle-blowers on 21 March 2022. enable the effective enforcement of the for-
eign bribery offence;
The fourth part concerned the register of inter- • preserve the role and expertise of the Nation-
est representatives (lobbyists) implemented by al Financial Prosecutor’s Office in the investi-
Decree No 2017-867 of 9 May 2017. gation, prosecution and resolution of foreign
bribery cases;
8.2 Likely Changes to the Applicable • ensure that sufficient resources for fighting
Legislation of the Enforcement Body white-collar crime are allocated to the rel-
On 9 December 2021, the OECD Working Group evant parts of the criminal justice system;
on Bribery published its France Phase 4 report, • clarify the conditions for triggering corporate
according to which: “France has undertaken liability and continue efforts to develop effec-
major legislative and institutional reforms since tive and co-ordinated non-trial resolutions for
Phase 3 in 2012 and made significant progress natural and legal persons; and
in enforcing the foreign bribery offence. Howev- • maintain the role, mandates and resources
er, these recent advances are being jeopardised currently assigned to the AFA in the develop-
by structural resource issues affecting the entire ment and monitoring of compliance measures
criminal justice system. Furthermore, two recent by companies.
bills – one of which will impose a three-year limit
on preliminary investigations into economic and In December 2022, France is expected to submit
financial crimes [the above-mentioned Law No an oral report on its implementation of essential
2021-1729 of 22 December 2021], including measures to maintain the progress made since
foreign bribery – raise concerns about France’s Phase 3 to the OECD Working Group on Bribery.
ability to make further progress.” In addition, a written report on the implementa-
tion of all recommendations and enforcement
The OECD Working Group on Bribery welcomed efforts in France will be submitted in December
the significant increase in the number of inves- 2023. The follow-up reports will be publicly avail-
tigations opened. Between late 2012 and Sep- able.
tember 2021, 108 investigations were opened
153 CHAMBERS.COM
Bougartchev Moyne Associés was formed in cern white-collar crime, civil and commercial
January 2017, when Kiril Bougartchev and Em- law, or regulatory matters. With wide experi-
manuel Moyne joined forces to create a law firm ence of emergency, complex, cross-border and
that combined all disciplines of business litiga- multi-jurisdictional proceedings, Bougartchev
tion while specialising in criminal law. They are Moyne Associés’ lawyers assist their clients
supported by a team of approximately ten law- both in France and internationally, and benefit
yers. As litigators recognised throughout their from privileged relations with counterpart law
profession, the founders and their team assist firms on all continents. Primary practice areas
public and private enterprises such as banks, are white-collar crime, civil and commercial liti-
financial institutions and insurance companies gation, regulatory disputes, compliance and in-
– as well as their executives and other promi- vestigations – as well as crisis and reputational
nent figures – in all disputes, whether they con- injury management.
Authors
Kiril Bougartchev co-founded Emmanuel Moyne co-founded
Bougartchev Moyne Associés Bougartchev Moyne Associés
following a career that began in following a career that began in
1988 as an auditor at Arthur 1997 when he was admitted to
Andersen. After joining the Paris Bar. He then practised
Linklaters LLP in 2007, he for ten years in Gide’s litigation
became co-head of the dispute resolution and white-collar crime department before
practice at the Paris office and led the joining the dispute resolution practice at
Linklaters LLP global white-collar crime group. Linklaters LLP in Paris in 2007 as a counsel.
Kiril continues to be involved in many notorious Emmanuel has acted in numerous white-collar
white-collar crime cases, both in France and crime cases and regulatory, civil and
internationally. He also acts in regulatory commercial disputes, as well as in industrial
disputes (including before the French Financial and environmental accident claims. He advises
Markets Authority, the French Anti-Corruption his clients on complex proceedings that often
Agency and the French Prudential Supervisory involve several foreign jurisdictions, as well as
Authority), as well as in complex civil and on compliance programmes, anti-corruption
commercial litigation. Kiril was a Secrétaire de due diligence and internal investigations.
la Conférence des Avocats of the Paris Bar. Emmanuel was a Secrétaire de la Conférence
des Avocats of the Paris Bar.
154 CHAMBERS.COM
Edward Huylebrouck worked Joséphine Doncieux is a junior

for four years as a lawyer at associate at Bougartchev
Linklaters LLP in Paris prior to Moyne Associés. She was
joining Bougartchev Moyne admitted to the Paris Bar in
Associés. He has been involved 2018 after completing several
in numerous cases involving internships in white-collar crime.
white-collar crime and commercial litigation, Joséphine graduated from Sciences Po Paris
including competition and distribution and Université Paris II Panthéon-Assas.
litigation. Edward has developed expertise in
sectors such as the car and building industries,
pharmaceuticals, consumer electronics and
mass distribution. He graduated from
Université Saint-Louis in Brussels and
Université Paris II Panthéon-Assas and has
been a member of the Paris Bar since 2012.
Edward was a Secrétaire de la Conférence des
Avocats of the Paris Bar in 2015.

AARPI
4 place Saint Thomas d’Aquin
75007 Paris
France
Tel: +33 1 42 84 87 77
Fax: +33 1 42 84 87 79
Email: kbougartchev@bougartchev-moyne.com
Web: www.bougartchev-moyne.com
155 CHAMBERS.COM
FRANCE Trends and Developments

Contributed by:
Fabien Ganivet
DLA Piper France LLP see p.160
Anti-corruption in France influence-peddling), market abuses and viola-

France’s stance against corruption and the wid- tions in relation to competition laws.
er group of offences that fall within the scope
of “integrity” violations (probité in French) has A major addition to the French anti-corruption
been reinforced significantly over the past dec- system came after the enactment of Law No
ade. Whilst France was sometimes seen, for 2016-1691, relating to transparency, the fight
example in some Organisation for Economic against corruption and the modernisation of
Co-operation and Development (OECD) reports, economic life, on 9 December 2016 (the “Sapin
as a country which was not doing enough and II Law”). Inspired by the legislation that already
lacked the legal instruments to investigate and existed in the US (Foreign Corrupt Practices
prosecute such offences, major changes have Act) and in the UK (UK Bribery Act 2010), the
occurred, particularly during the past five years, Sapin II Law built on features that existed in
which have modernised and shaped its ambi- Anglo-Saxon anti-corruption mechanisms and
tious agenda. adapted them to the French judicial system. For
instance, the law integrated an important pre-
The Development of a New Integrity vention aspect into the anti-corruption frame-
Paradigm in France work by requiring companies to adopt robust
Several regulatory authorities were created in compliance programmes and, thus, become
the first half of the 2010s to monitor, investigate more proactive in the fight against corruption
and sentence violations in relation to “integri- and influence-peddling. The creation of such
ty”. The laws of 11 October 2013 on transpar- compliance programmes became mandatory
ency in public life created the High Authority for for companies which have at least 500 employ-
Transparency in Public Life (HATVP), from which ees and a turnover that exceeds EUR100 million.
materialised the need to provide an authority Corporates that fall within the scope of the law
with sufficient powers to control the declaration have to:
of assets and interests of public and elected
officials. It was followed by the setting-up of • design a code of conduct;
the Financial Prosecutor: the “Parquet Nation- • set up internal alert mechanisms;
al Financier” (PNF) by Law No 2013-1117 of 6 • conduct a risk-mapping system that analyses
December 2013 on tax fraud and serious finan- and provides a hierarchy of risks of corruption
cial crime and organic Law No 2013-1115 of 6 within its business sectors;
December 2013 on the Financial Prosecutor. • conduct due diligence on entities they do
The PNF was explicitly designed to investigate business with, including suppliers and inter-
and prosecute the most serious and complex mediaries;
economic crimes, understood as covering four • set up internal or external accounting control
categories of offences: public finances offences, procedures;
integrity offences (which include corruption and
156 CHAMBERS.COM
Contributed by: Fabien Ganivet, DLA Piper France LLP
• provide training on compliance and anti-cor- The Role of the AFA on the Evolution of the
ruption topics to their personnel who may be French Anti-corruption System
exposed to such risks; The AFA is responsible for controlling the con-
• set up a disciplinary system to sanction viola- crete implementation of efficient anti-corruption
tions of the code of ethics; and measures and compliance programmes within
• create internal control mechanisms to audit entities that fall within the scope of the Sapin II
the measures implemented. Law. Entities subject to an AFA control receive
a notification from the agency, which provides
Furthermore, it significantly increased the sanc- the subject and scope of the control. Several
tions available against companies and individu- exchanges, including documentation analysis,
als found guilty of corruption or influence-ped- interviews, and on-site visits, usually take place
dling and it added an extra-territorial reach to between the entity subjected to the control and
the law by integrating into its scope individuals the agency. The AFA then submits its report and
and entities which usually reside in France or concludes on the efficiency of the compliance
have all or part of their activity on French ter- programme implemented by the company. The
ritory. Finally, the law borrowed aspects of the company has two months to respond to the AFA,
US’ negotiated justice by creating the “Conven- and to request a meeting with AFA agents if need
tion Judiciaire d’Intérêt Public” or CJIP (Judicial be. Depending on the case, a warning can be
convention of public interest). Drawing from the issued to the entity. If the violations are really
Deferred Prosecution Agreement (DPA), a CJIP serious, the case is referred to the Sanctions
differs from that mechanism in particular in that Commissions of the AFA.
it is an instrument open to legal entities only. It
was set up to encourage companies to co-oper- The AFA also has an important normative role in
ate with the authorities in exchange for a more the French anti-corruption system. It provides
favourable settlement. In this regard, companies recommendations and practical guides which,
may be offered the opportunity to negotiate with in addition to the Sapin II Law and application
the prosecutor a settlement under which they decrees, constitute the “French anti-corruption
accept the requirement to pay a fine, often for a referential”. So far, the AFA has published two
very high amount, and to implement a compli- recommendations, the first set in December
ance programme, while avoiding criminal charg- 2017 and the latest on 12 January 2021. The
es. The proposal is then submitted to a judge 2021 recommendations marked an interest-
who decides whether to ratify the agreement. ing shift from the previous requirements as
regards the implementation of anti-corruption
In addition to the previous elements, the Sapin programmes. The AFA adopted a three-pillar
II Law increased the protection of whistle-blow- approach centred on (i) the involvement of exec-
ers and also created the French Anti-corruption utives and top managers in designing and imple-
Agency (AFA), which is in charge of preventing menting a corporate culture that complies with
and detecting acts of corruption, influence- anti-corruption requirements, (ii) a risk-based
peddling, misappropriation of public funds and approach that starts with the companies’ risk-
favouritism. mapping, and which leads to elaborating (iii) risk-
management processes to prevent risks, detect
potential misconducts, and elaborate sanctions
157 CHAMBERS.COM
to repress any such misconducts. These pro- pany, but refused to ratify the CRPC negotiated
cesses also include the internal control and with several of the company’s executives.
audit mechanisms that companies must set up
in order to control the anti-corruption measures Other areas should be clarified as well. Directive
that are set forth. (EU) 2019/1937 of the European Parliament and
of the Council on the protection of persons who
The publication of these documents allows com- report breaches of Union law was adopted on 23
panies to have more visibility on what is expect- October 2019. It provides a harmonised system
ed of them with regard to the measures that they of protection of whistle-blowers that EU member
should implement and the factors that will be states had to transpose by 17 December 2021
taken into account when the AFA assesses the for provisions in relation to the public sector and
efficiency of their compliance programmes. It is companies with more than 249 employees, while
worth noting that, whilst the agency mentions provisions regarding companies of the private
in its recommendations that these recommen- sector with 50 to 249 employees must be trans-
dations are not binding on companies that fall posed by 17 December 2023. Law No 2022-401
within the scope of the Sapin II Law, the AFA of 21 March 2022 on the enhancement of whis-
also states that entities that apply the mecha- tle-blower protection was subsequently adopt-
nisms set out in the recommendations benefit ed and came into force on 1 September 2022.
from a presumption of compliance. If a company The law, among other things, better defines the
departs from those recommendations, the bur- concept of whistle-blower and widens its scope
den of proof is automatically reversed and the (“an individual who reports or discloses, without
entity has to justify its approach and present direct financial compensation and in good faith,
evidence that the anti-corruption mechanisms information relating to a crime or misdemean-
that it implemented are compliant with the legis- our, a threat or harm to the general interest, a
lation. Thus, the normative power of the AFA and violation or an attempt to conceal the violation
its ability to impose changes in anti-corruption of an international agreement”). It also sets out
practices cannot be understated. more effective reporting mechanisms as well as
increased protection for whistle-blowers.
The Place of Individuals in the Current Legal
Framework Conclusions
Several issues regarding the role of individuals in Finally, the role of corporate internal investiga-
the current framework remain unanswered. For tions in uncovering and analysing facts in rela-
instance, as previously mentioned, the CJIP is tion to integrity violations is an important topic
only available to legal entities. Individuals have that is still evolving, specifically with regard
access to the “Comparution sur Reconnaissance to the rights of individuals. Thus, it should be
Préalable de Culpabilité”, or CRPC (Convention noted that the anti-corruption framework previ-
on prior recognition of guilt), which, unlike the ously described encourages companies to co-
CJIP, requires the individual to acknowledge operate with public authorities and to conduct
their guilt in order to be ratified by a judge. The internal investigations to shed light on potential
articulation of CJIPs and CRPCs remains a sen- misconducts brought to their attention. Whilst
sitive and complex topic. In February 2021, a such a practice is not really new, the increase of
court ratified the CJIP concluded with a com- these investigations and the fact that they have
158 CHAMBERS.COM
some roots in a different legal system – namely, ment laws and data protection laws are fully
the US – still proves challenging at times. In observed during the internal investigation pro-
particular, rules regarding the admissibility of cess. The same requirements of rigour, loyalty
evidence must be complied with at all times – and proportionality must be applied, in particular
for instance, especially if an employer wants to when conducting interviews with employees, in
terminate the employment of an employee fol- order to preserve the rights of defence and the
lowing an internal investigation that uncovered presumption of innocence, among other essen-
compelling evidence of wrongdoing, it is of the tial legal principles in democratic societies.
utmost importance that all applicable employ-
159 CHAMBERS.COM
DLA Piper France LLP is one of very few inter- and employment, banking and finance, tax).
national law firms with a dedicated compliance, With its vast network of international lawyers
global investigations and white-collar defence (around 80 offices in 40 countries), the firm can
cross-border team of several dozen lawyers; provide legal assistance to its clients, regard-
the Paris practice comprises one partner, a less of the sector or geographic area in which
team of two counsels and four dedicated asso- they operate. DLA Piper strives to offer robust,
ciates. The team works closely with DLA Piper rigorous and operational solutions while deliver-
lawyers worldwide (Europe, US, Middle East, ing quality and respecting high standards in all
Asia Pacific) as well as the other teams in the matters, using the most advanced technologies
Paris office (M&A, competition, public affairs, to manage broad and multi-jurisdictional inves-
intellectual property and data privacy, labour tigations successfully.
Author
Fabien Ganivet focuses his as French or foreign government agencies.
practice on compliance Overall, his experience covers white-collar
(compliance programmes and crime litigation (from initial investigations to
risk-prevention, anti-bribery, potential trial), risk-prevention and crisis
AML regulations, ESG, management, with significant experience in
international sanctions), internal corporate and employment-related criminal
investigations and white-collar defence law. Since the beginning of his career, Fabien
(criminal business law, commercial criminal has occupied various high-level positions,
law, and employment-related criminal issues). moving between four legal spheres: the courts,
Providing DLA Piper’s clients with advice and ministerial offices, law firms and large
litigation assistance, he represents companies corporations. He currently heads DLA Piper’s
and their executives in the framework of Litigation & Regulatory department in France,
criminal or regulatory investigations and which brings together a team of around 45
proceedings led by judicial authorities, as well lawyers.
DLA Piper France LLP

27 rue Laffitte
Paris
75009
France
Tel: +33 01 40 15 24 00
Fax: +33 01 40 15 24 01
Email: Email: Fabien.Ganivet@dlapiper.com
Web: www.dlapiper.com/fr/france/locations/paris
160 CHAMBERS.COM
GREECE
Bulgaria
Law and Practice

Italy Albania
Greece Turkey
Contributed by: Athens
Ilias Anagnostopoulos and Alexandros Tsagkalidis

ANAGNOSTOPOULOS see p.175
Contents
2.1 Bribery p.164
3. Scope p.166
5. Penalties p.168
Penalties p.168
161 CHAMBERS.COM
GREECE Law and Practice
Contributed by: Ilias Anagnostopoulos and Alexandros Tsagkalidis, ANAGNOSTOPOULOS
1. Legal Framework for Offences regulation, best practices, signs of irregularity of

transactions, etc. In addition to the guidelines
1.1 International Conventions issued by regulatory bodies (eg, the Bank of
Greece has ratified all major anti-bribery and Greece, the Hellenic Financial Intelligence Unit
anti-corruption international conventions: (FIU), the Capital Market Commission), business
associations in sensitive industries (eg, health-
• the UN Convention Against Corruption (Law care) are proposing guidelines to their mem-
3666/2008); bers, recommending best practices, evaluating
• the Council of Europe Criminal Law Conven- market statistics, sharing experience from other
tion on Corruption and Additional Protocol jurisdictions, etc.
(Law 3560/2007);
• the Council of Europe Civil Law Convention 1.4 Recent Key Amendments to National
on Corruption (Law 2957/2001); Legislation
• the EU Convention on the Protection of the On 1 July 2019, a new criminal code and a new
European Communities’ Financial Interests code of criminal procedure came into force in
(Law 2803/2000); Greece. Both are the result of a decade of work
• the EU Convention Against Corruption Involv- by three law commissions with changing mem-
ing Officials of the European Communities or bership. The new criminal code’s aim is to mod-
Officials of Member States of the European ernise and rationalise the country’s core criminal
Union (Official Journal C195 of 25 June 1997) legislation. In this context, it abolishes a number
(Law 2802/2000); and of obsolete or petty offences under the old code,
• the Organisation for Economic Co-operation which dated from 1950, and introduces some
and Development Convention on Combat- new offences better suited to address current
ing Bribery of Foreign Public Officials in challenges, such as the offence of dangerous
International Business Transactions (Law driving or a broad subsidies fraud offence.
2656/1998).
In respect of bribery, the new code establishes
1.2 National Legislation five offences. Notably, there are separate provi-
The main anti-bribery and anti-corruption provisions on:
sions of Greek legislation are to be found in the
Greek Criminal Code (GCC) (Articles 159–159A • bribery of politicians or other state officers,
and 235–238) as well as in the anti-money laun- both domestic and international;
dering legislation (Law 4557/2018). • bribery of judges or arbitrators;
• bribery of other public employees;
1.3 Guidelines for the Interpretation and • bribery in the private sector; and
Enforcement of National Legislation • trading of influence.
Although not binding, the case law of the Greek
Supreme Court (Areios Pagos) may be used as Sentences for these offences vary, depend-
a means of interpreting the Greek criminal pro- ing on the nature of the offences, the perpe-
visions. Moreover, several enforcement agen- trator’s capacity or the act for which the brib-
cies and regulatory bodies have issued guide- ery occurred. The code takes a more severe
lines over the years in respect of anti-corruption approach towards passive bribery in the public
162 CHAMBERS.COM
sector, while active bribery is a more serious officers, businessmen and diplomats, which
offence where the bribed person is a politician had shaken the country. The law’s abolishment
or a judge, as opposed to an ordinary public offi- was long overdue as it was discordant with
cial. Moreover, bribery for illegal acts is punished the hierarchy of values protected by modern
more severely than bribery aimed at speeding criminal legislation and stood in sharp contrast
up lawful actions (so-called “grease” payments). to the fundamental principle of proportionality
enshrined in Article 49(3) of the EU Charter on
On this basis, active bribery where the receiver Fundamental Rights. Indeed, in a liberal legal
of the bribe is a politician or a state officer or a order, life sentences must be reserved for the
judge or arbitrator is classified as a felony pun- most heinous crimes such as murder, and not
ishable with a custody sentence of up to ten for financial offences.
years’ imprisonment. If the receiver is an ordi-
nary public employee, bribery for unlawful acts It is worth noting that, under Greek law, who-
is a felony punishable by imprisonment for five ever commits active bribery is also held respon-
to eight years, whereas bribery for lawful acts sible, as a rule, for money laundering. Indeed,
constitutes a serious misdemeanour punishable according to established domestic case law,
by imprisonment for up to five years or a mon- the act of giving bribes using the financial sys-
etary sentence. tem is considered to be money laundering, not
only for the receiver of the bribe, but also for the
Trading in influence and bribery in the private person who gives the bribe. In terms of punish-
sector are also classified as misdemeanours, ment, this means that the perpetrator of active
with sentences of up to five years. bribery would normally also be pursued for the
felony offence of money laundering, for which
It should be noted that sentences longer than potential sentences range from five to 15 years.
three years have to be served wholly or partly in Prosecution for money laundering is allowed
prison. This is an important feature of the new even when the predicate offence (bribery or
code as opposed to the old one, where sentenc- other) is time-barred. Moreover, in cases where
es of up to five years’ imprisonment were either the bribed public official proceeds with an ille-
suspended or converted into fines. gal act in exchange for the bribe (eg, breach of
fiduciary duties, issuing of a false certificate), the
Overall, the new code provides more rational and person who bribed them would also be, as a
proportional sanctions and it is no less efficient rule, held responsible for instigation of this act,
than the old one, where both disproportionate which again would carry an additional serious
and nominal sentences were frequent. The old sentence.
law could see those convicted of bribery be put
away for life in cases where the Greek state was
the victim. That law was passed by parliament
in turbulent times – months after the end of a
civil war between communist-led rebels and the
National Army and against the backdrop of a big
contraband scandal (smuggling of gold, foreign
currency and luxury items) involving coastguard
163 CHAMBERS.COM
2. Classification and Constituent mayors) and other officials, including members

Elements of the European Parliament and the European
Commission. These Articles cover the act of giv-
2.1 Bribery ing/receiving and promising/accepting unlawful
Bribery benefits for committing or omitting an act as
Bribery in the public sector, which is provided well as for abstaining from voting, or voting in a
for by Articles 235 and 236 of the Greek Crimi- particular manner, or supporting a specific reso-
nal Code (GCC), is an act of giving (or receiving) lution. The perpetrator must act with intent (as
or promising (or accepting), directly or through opposed to with negligence). These offences are
third parties or intermediaries, undue benefits punishable with imprisonment ranging from five
or gain to/from a public official for committing to 15 years. Company executives, or any other
or omitting an act in the course of one’s duties person with decision-making or supervisory
or against one’s duties. The act of the public powers, who fail through negligence to prevent
official may be concluded, or expected to be active political bribery are punished with impris-
concluded, in the future. The perpetrator must onment for between ten days and five years.
act with intent (as opposed to with negligence).
Active and passive bribery in the public sector is Bribery of Public Officials
punishable with imprisonment ranging from ten Article 13 of the GCC defines “public official”
days to 15 years, depending on whether the act as a person entrusted permanently or temporar-
for which the bribe was given was in the course ily with the exercise of duties directly related to
of, or against, the public official’s duties. the state or public law entities. However, Arti-
cles 159 paragraph 4, 159A paragraph 4, 235
Bribery of Judges paragraph 5 and 236 paragraph 4 of the GCC
Bribery of judges is provided for by Article 237 expand the above-mentioned definition and
of the GCC, which covers the offences of active stipulate that public officials are also individu-
and passive bribery of such persons. Bribery of als who hold office permanently or temporarily
judges is punishable with imprisonment rang- under any capacity or status as follows:
ing from five to 15 years. The perpetrator must
act with intent (as opposed to with negligence). • in bodies or organisations of the EU, including
Company executives, or any other person with the European Commission, the ECJ and the
decision-making or supervisory powers within ECA;
the company, who fail through negligence to pre- • officers or other employees of any interna-
vent active bribery of judicial officials are pun- tional or transnational organisation in which
ished with imprisonment ranging from ten days Greece participates, as well as any individual
to five years. with power to act on behalf of such an organi-
sation;
Bribery of Political Officials • members of parliamentary assemblies of
Bribery of political officials is provided for by international or transnational organisations of
Articles 159 and 159A of the GCC, which stipu- which Greece is a member;
late the offences of active and passive bribery of • those who exercise judicial or arbitration
political officials, such as the prime minister, min- powers with international courts in which
isters, heads of municipal regions (prefects and Greece participates;
164 CHAMBERS.COM
• any person in public office or service for unlawfulness of such gains/benefits is judged on
foreign countries, including judges, jurors and an ad hoc basis. However, a benefit may gener-
arbitrators; and ally be considered unlawful if it goes beyond the
• members of parliament or assembly of local standards of proper social and/or professional
governments of other countries. conduct. Facilitation payments are generally
treated as bribes.
Therefore, bribery of the above-mentioned for-
eign public officials is criminalised by the GCC. Despite the wording of the relevant law, which
Moreover, Article 237B of the Greek Crimi- is broad and may include at first sight all of the
nal Code stipulates that, for bribery offences, above, anti-bribery legislation would not apply
employees of state-owned or state-controlled to symbolic gifts or gifts of courtesy. The differ-
companies or other entities are also considered ence lies primarily in the scope of the gift and the
to be public officials. openness of offering such a gift. However, the
application of regulations and laws on corrup-
Bribery in the Private Sector tion to cases of systematic use of such gifts (eg,
Bribery in the private sector, which is provided travel expenses, meals, entertainment) cannot
for by Article 396 of the GCC, is an act of giving be excluded in the general context of seeking
(or receiving) unlawful benefits or gain, directly or to influence a public official.
indirectly, as an exchange for an action or omis-
sion contrary to one’s duties (as defined by law, Grease payments are prohibited. Such pay-
contract, agreement, etc). The perpetrator must ments are not recognised under account and
act with intent (as opposed to with negligence). book-keeping regulation as legitimate expenses.
This offence is punishable with imprisonment All payments and expenses must be duly regis-
ranging from one to five years. tered and supported by relevant documentation
(proper invoicing, contract agreements, etc). If
Bribery in Sport not duly registered, such payments would be
Bribery in sports is provided for by Article 132 considered questionable or even fictitious, and
paragraph 2 of Law 2725/1999 on “the profes- potentially as direct or indirect payments for
sional and amateur sports”, which prohibits the gifts or benefits through third parties. This type
act of requesting/receiving and giving/promis- of payment is also in breach of the relevant tax
ing benefits to players, coaches or referees or provisions and may trigger (depending on the
to other third persons, in order to influence the circumstances and value) criminal liability for
outcome of a sport’s game. Such bribery is pun- related tax offences.
ishable with imprisonment for up to five years.
In a case where the sport’s game was actually 2.2 Influence-Peddling
influenced, the offence is punishable by impris- Article 237A (trading in influence) describes
onment for up to ten years. as punishable the act of requesting or receiv-
ing directly or indirectly through third persons,
Gains, Benefits and Gifts in favour of oneself or others, benefits of any
Gains and benefits are not only cash/cash equiv- nature or accepting a promise of such benefits
alents but also intangible benefits (eg, promotion in exchange for exerting improper influence over
or favourable transfer to a better position). The officials described in Articles 159A, 235 para-
165 CHAMBERS.COM
graph 1 and 237 paragraph 1 of the GCC, as If the embezzled assets exceed the amount of
well as members of parliamentary assemblies EUR120,000, the offence is characterised as a
of international or transnational organisations of felony and it is punishable with a sentence rang-
which Greece is a member. ing from five to ten years’ imprisonment. If the
property belongs to the Greek state or to any
2.3 Financial Record-Keeping public legal entity and the value of the embez-
Law 4174/2013 (tax code and tax standards as zled assets exceeds EUR120,000, this consti-
amended by Law 4819/2021) provides criminal tutes an aggravating factor and the perpetrator
penalties for false registrations in accounting of the offence shall be punished with a sentence
books or for non-registration of transactions. ranging from ten to 15 years’ imprisonment.
There are also provisions in legislation for com-
panies limited by shares (Law 4548/2018, which Article 259 of the GCC stipulates that the offence
reformed company law) for criminal sanctions of breach of official duties is committed when a
for inaccurate or false balance sheets, false or public official, who intentionally breaches their
inaccurate declarations on the financial status of office duties, with the intent to benefit them-
the company, etc. Moreover, Law 4443/2016 on selves or a third person unlawfully or to harm the
Capital Markets provides for criminal sanctions Greek state or a third person unlawfully, shall be
in a case where someone knowingly dissemi- punished with imprisonment for up to two years,
nates misleading or false information through unless the offence committed is punishable in
the media or the internet, which could affect accordance with another more severe criminal
the stock price of a listed company and, thus, provision.
manipulate the Greek stock market. These acts
are punishable when committed with intent (as 2.5 Intermediaries
opposed to with negligence). Levels of intent The broad wording of Articles 235 and 236 of the
may vary, depending on the applicable law. GCC (passive and active bribery) covers gifts or
financial benefits given in a direct or indirect way
2.4 Public Officials in favour of the perpetrator or others. In addition,
Article 244 of the GCC stipulates that any public both provisions make special reference to inter-
official who knowingly certifies or collects undue mediaries to a bribe. In this respect, intermediar-
taxes, duties fees, taxation fees, judicial fees, ies or third parties may be held criminally liable
or any other monetary obligations towards the if these transactions are carried out within the
Greek state, may be punished by imprisonment context of corruption. It is noted that payments
for up to three years. through intermediaries may also be questionable
in respect to proper book-keeping and taxation
Article 375 of the GCC stipulates that embezzle- law.
ment is committed when the perpetrator, know-
ing that (due to a legal provision, eg, as man-
ager, trustee) they are in charge of the property 3. Scope
of another person or entity, acts as if they were
the owner of the property by incorporating it into 3.1 Limitation Period
their own assets. This act of embezzlement is The general rules of limitation periods are set
punishable by up to five years’ imprisonment. out in Articles 111–116 of the GCC. The limita-
166 CHAMBERS.COM
tion time for serious financial crimes against the Moreover, Articles 159 paragraph 4, 159A para-
state or state-owned entities is 20 years. Felo- graph 4, 235 paragraph 5 and 236 paragraph 4
nies punishable with imprisonment (five to 15 of the GCC, which have expanded the definition
years) are time-barred after 15 years, and mis- of “public official” in order to cover foreign public
demeanours punishable with sentences of up to officials, as already previously mentioned, stipu-
five years are time-barred after five years. As a late that active and passive bribery of foreign
matter of principle, calculation of these times is public officials is punishable when committed
made from the time of the act, unless there is a abroad, irrespective of dual criminality.
special legal rule that provides otherwise.
3.3 Corporate Liability
Limitation times are suspended for five years Greek law provides that only individuals may
(for felonies) or three years (for misdemeanours) be held liable for a criminal act, thus being
while the case is pending before a court and until subject to classic punishments (eg, imprison-
a final decision is delivered or if there are legal ment). Since 1998, after the passing of Law No
grounds that do not allow the prosecution and/ 2656/1998, there has been a specific provision
or its continuation. This five-year extension is not for penalties, in the form of administrative fines,
valid in cases where there is suspension of the for legal entities benefiting from acts of bribery of
proceedings by law, following certain provisions foreign public officials. A company (legal entity)
of the Greek Code of Civil Procedure (GCCP). bears liability for acts of bribery and corruption
There are special provisions for cases relating in the form of administrative penalties.
either to the country’s international affairs (Article
29 of the GCCP) or cases that are very closely Article 45 of Law No 4557/2018 (anti-money
connected to other criminal cases already pend- laundering regulation) provides for the liability
ing, and their outcome is of major importance to of legal entities if the acts of active and pas-
the suspended criminal case (Article 59 of the sive bribery of public officials, political officials or
GCCP). judges are committed in the legal entities’ favour
by individuals empowered to act on their behalf
3.2 Geographical Reach of Applicable (as managers or directors) or to make decisions
Legislation in relation to the company’s activities, etc, and
Article 8 of the GCC stipulates that Greek leg- provides for a series of administrative penalties
islation is always applicable for offences com- (eg, fines, prohibition of business activities, ban
mitted abroad by public officials of the Greek from public tenders). This provision is applica-
state, or by officials of EU bodies and organisa- ble to perpetrators, accessories and instigators
tions which are seated in Greece. According to alike.
the same provision, Greek legislation is always
applicable in a case where the crime committed Liability of a successor entity could arise in cas-
abroad was directed against, or addressed to, es where individuals managing the target entity
a public official of the Greek state, or a Greek are held criminally liable for acts of corruption
officer of an EU body or organisation, during or and the target entity has benefited from these
in relation to the exercise of their duties. acts. Given the fact that the sanctions imposed
on an entity are of an administrative nature
(fines, suspension of activities, ban from public
167 CHAMBERS.COM
tenders), it is highly likely that these sanctions 4.3 De Minimis Exceptions

will be imposed on the successor entity as well. There are no de minimis exceptions for the
It is noted that, with respect to administrative offences described in 2. Classification and Con-
sanctions, the procedure followed resembles stituent Elements.
the procedure of imposing tax-related fines and
sanctions. For these purposes, a legal entity is 4.4 Exempt Sectors/Industries
considered as a whole (ie, the successor has all No sectors or industries are exempt from the
the liabilities and rights of the target entity). aforementioned offences.

4. Defences and Exceptions Article 263A of the GCC provides leniency meas-
ures applicable to the perpetrators of active brib-
4.1 Defences ery. If individuals who have participated in active
Under Greek law, it is the prosecuting authori- bribery report the criminal conduct of the bribed
ties that collect evidence and prove their case. official to the authorities and make substantial
Depending on the phase of the procedure (pre- disclosures as to the official’s criminal acts, they
liminary inquiry, investigation, pre-indictment), are eligible either to receive a lesser sentence, or
the prosecuting authorities need to satisfy to be granted a suspension of criminal proceed-
general standards to enable further process of ings against them by virtue of a decision of the
a case file (usually the existence of sufficient indicting court until the validity of the informa-
evidence to justify further investigation or rec- tion they provided is verified, or to be granted
ommendation to open a formal investigation or suspension of their sentence. There is no gen-
recommendation for trial referral). eral provision for leniency measures applicable
to companies or legal entities with respect to
The defendant is entitled to challenge the pros- acts of corruption. It is possible, however, in view
ecuting authorities’ case even at the earliest of the ability of the authorities to choose which
stages (during the preliminary inquiry and the administrative penalties will be imposed, to
investigation) on all points, ie, points of law and apply the minimum fine and no other penalties.
on the merits. In view of this, the defendant
is entitled to request file documents from the
authorities carrying out specific investigations, 5. Penalties
and to request the examination of specific wit-
nesses, expert opinions, etc. The investigating 5.1 Penalties on Conviction
procedure (preliminary and official) is always Criminal penalties are imposed solely on indi-
reviewed by a Council of Judges (three judges), viduals and consist mainly of imprisonment and
which is competent to examine any procedural monetary fines. Potential sentences range from
objections raised by the defendant. ten days’ to 15 years’ imprisonment.
4.2 Exceptions 5.2 Guidelines Applicable to the

There are no exceptions to these defences. Assessment of Penalties
The legal provisions applicable to each case
define the range of the sentence to be imposed
168 CHAMBERS.COM
by the court (ie, the minimum and maximum Following a series of amendments in tax leg-
duration of imprisonment). The GCC (Articles islation, which provide for stricter rules in
79–85) sets out the guidelines for imposition book-keeping, payments and money transfers,
and calculation of sentences, within the range combined with changes in AML legislation,
mentioned in 5.1 Penalties on Conviction. In organisations are making a serious effort to
particular, the court has to consider various comply with such obligations. In addition, cer-
factors, such as the severity of the act and the tain industries have been more active in promot-
personality of the defendant. The court also ing best practices guidelines and monitoring the
examines – following a request by the defence market. Most medium-to-large-scale businesses
– whether any mitigating circumstances apply, have an internal control programme in place,
which could lead to a lesser sentence. Such and train their employees in anti-corruption pro-
circumstances include lack of prior involvement cedures on a regular basis, and, during the last
in criminal acts, good behaviour after the act, three to four years, more businesses have been
showing true remorse after the act, and making integrating procedures to encourage reporting
efforts to amend or lessen the negative impacts of corruption (whistle-blowing).
of their actions. However, the courts also take
into account previous final convictions when cal- Moreover, the recent Law 4706/2020 On Corpo-
culating the sentence which will be imposed on rate Governance and Capital Market Modernisa-
the individual. tion (published on 17 July 2020) stipulates that
a corporation is obliged to have an effective
compliance programme in place, as part of its
6. Compliance and Disclosure Regulation of Internal Operations. Guidance is
provided by the regulating bodies of each sector
6.1 National Legislation and Duties to (such as the Bank of Greece), which issue by-
Prevent Corruption laws with the minimum requirements of compli-
Although the GCC does not establish detailed ance.
duties to prevent corruption, Articles 236 para-
graph 3, 237 paragraph 3 and 159A paragraph 6.2 Regulation of Lobbying Activities
3 of the GCC provide for the punishment of Lobbying activities are regulated by Law
company executives, or any other persons with 4829/2021, which was passed last year by the
decision-making or supervisory powers within Parliament. The aim of this law is to ensure integ-
the company, who fail through negligence to pre- rity and transparency when exercising lobbying
vent acts of corruption. Moreover, the need to activities. To this end, a Transparency Registrar
comply with stricter regulations and the changes was established to which all natural and legal
taking place in all aspects of corporate activi- persons who exercise lobbying activities for a
ties have led to significant changes in the way fee, through communications with institutional
organisations deal with such matters, realising bodies (ie, the bodies exercising a legislative or
that detecting and exposing corruption practices executive function, their members or employees,
helps to reduce and/or eliminate market distor- whether acting individually or collectively), must
tions and improve business practices. register by providing information about their
identity and activities. On an annual basis, their
representatives must file a declaration with the
169 CHAMBERS.COM
National Transparency Agency, stating, amongst 6.4 Protection Afforded to Whistle-

others, the policy area and type of decision that Blowers
was influenced, the details of the person who Recently, Law 4990/2022 was passed by the
exercised influence, as well as of their client, the Parliament, which transposed Directive (EU)
time and manner in which the lobbying activity 2019/1937 of the European Parliament and of
was carried out, the institutional body to which the Council of 23 October 2019 on the protec-
the lobbying activity was addressed, and, finally, tion of persons who report breaches of Union
the intended result. law. This is the first law that creates a framework
for the protection of whistle-blowers in Greece
6.3 Disclosure of Violations of Anti- and aims to establish a system of internal and
bribery and Anti-corruption Provisions external reporting of violations of Union law, to
Public officials who become aware, during the specify the procedure for submitting, receiving
exercise of their duties, that a criminal act (of and monitoring such reports, to offer broad pro-
those prosecuted ex officio) has been com- tection to the persons who report such viola-
mitted, are under obligation to report it to the tions, and to provide for sanctions in case of
authorities. Failure to report is punishable as a violation of its provisions.
criminal offence.
In relation to the protection whistle-blowers
Private individuals are not under the same obli- enjoy, the said law provides for the prohibition
gation, but rather, they have the right to report of retaliation against whistle-blowers (eg, their
a criminal act to the authorities. Although anti- employment or business status should not be
bribery laws do not explicitly demand disclosure negatively affected, imposition of any discipli-
of violations, in the context of money-laundering nary measure is prohibited as well as any dis-
regulations, compliance and internal audit con- crimination, disadvantageous or unfair treat-
trol, there are obligations to expose and report ment), measures for their support (eg, legal aid
irregularities related to financial records or sus- and psychological support), and measures for
picious transactions. In this respect, individuals protection against retaliation (eg, they shall not
who are obliged by law to contribute to trans- be considered to have breached any restriction
parency and corporate ethics may be faced on disclosure of information and shall not incur
with a dilemma when coming across a possible liability of any kind in respect of such a report
case of bribery. Leniency measures are meant or public disclosure provided that they had rea-
to facilitate disclosure of violations or irregulari- sonable grounds to believe that the reporting
ties. They apply in principle to individuals who or public disclosure of such information was
expose corrupt practices and relate to their sta- necessary for revealing a breach, suspension of
tus as defendants in criminal cases. Corpora- any criminal, administrative or civil proceedings
tions may still be liable from a tax point of view; that may have been initiated due to the whistle-
however, they are entitled to initiate procedures blower’s disclosure of information).
for an amicable (tax) settlement, which can sig-
nificantly reduce any fines to be imposed. As these are new provisions, there is not yet
enough information available in order to com-
ment on their applicability and effectiveness.
170 CHAMBERS.COM
6.5 Incentives for Whistle-Blowers The above-mentioned prosecutor is a higher-

There are no financial incentive schemes for ranking Court of Appeal prosecutor and may
whistle-blowers. request the co-operation of public prosecutors
with the first-instance court, the police, the regu-
6.6 Location of Relevant Provisions latory authorities, other administrative authori-
Regarding Whistle-Blowing ties and/or other enforcement agencies in the
Article 47 of the Greek Code of Criminal Pro- course of their investigations.
cedure provides for “witnesses of public inter-
est”: see 6.4 Protection Afforded to Whistle- Role of Other Enforcement Agencies
Blowers. Other enforcement agencies act in co-operation
with and under the orders of the prosecutor(s).
It is most common for the Economic and Finan-
7. Enforcement cial Crime Unit to do the necessary preliminary
investigations, evidence-gathering, report-writ-
7.1 Enforcement of Anti-bribery and Anti- ing, etc, following a prosecutorial order. In cases
corruption Laws of money laundering, the Hellenic FIU gathers
Enforcement of anti-bribery and anti-corruption all the necessary information and evidence, and
law is mainly criminal and administrative. if they believe that there is enough to support a
criminal case, they forward it to the Prosecutor’s
7.2 Enforcement Body Office. The prosecutor opens a case against the
Role of the Prosecutor’s Office natural persons or officers of an entity, following
Prosecution is always initiated by the Prosecu- standard criminal procedure, ie, conducting a
tor’s Office. There is one Prosecutor’s Office for preliminary investigation and opening a formal
every first-instance court (which roughly covers investigation (conducted by an investigating
a prefecture). There are also prosecutors with the judge).
Court of Appeal (12 circuits), and there is a pros-
ecutor with the Supreme Court. An investigation The timeframe for executing these procedural
is always supervised by a prosecutor. The major- steps varies depending on the nature of the
ity of cases are handled by prosecutors of the case. It is not unusual in serious and complex
first-instance court (who may receive guidelines cases (eg, corruption, large-scale money laun-
or orders for specific investigations from their dering and fraud cases) for enforcement agen-
superiors). In exceptional cases, a prosecutor cies and the prosecutor to take action in order to
with the Court of Appeal may step in and con- secure evidence (by issuing a warrant for search
duct or co-ordinate the proceedings. In recent and seizure, or issuing freezing orders), before
years, the Prosecutor of Economic Crime has the actual filing of charges and before persons
been established (Articles 33–36 of Greek Code of interest are called for questioning. On some
of Criminal Procedure) with powers to prosecute occasions, regulatory bodies (eg, the Hellenic
and supervise investigations of financial fraud, Capital Market Commission or the Competi-
criminal tax offences, and financial and econom- tion Commission) conduct their investigations
ic crimes against the state, state-owned entities in respect of breach of regulations within their
or of broader public interest. competence, and, if they also come across evi-
dence of criminal conduct, they gather evidence
171 CHAMBERS.COM
and send a report to the prosecutor to decide In all cases, the company may object to hand-
on further steps. Regulatory bodies conduct ing over certain documents or material (eg, privi-
investigations (during which certain provisions leged commercial information or correspond-
for criminal investigations apply, ie, examination ence) and may refer to the prosecutor to resolve
of witnesses, evidence-gathering, etc) but they the issue. In practice, when an on-site search
cannot initiate criminal charges. This responsibil- is in progress, the company may not refuse to
ity always lies with the prosecutor. In principle, it hand over material but may raise its objections
is the responsibility of the Prosecutor’s Office to regarding the nature of the material taken (eg,
decide which body investigates under the pros- privileged information) when signing the confis-
ecutor’s supervision, unless there are specific cation documents, in which case the material is
provisions by law (Prosecutor for Financial and sealed and taken by the agency, pending resolu-
Economic Crime). tion of the issue by the courts.
It is usual to have civil or administrative enforce- On some occasions (depending on the scope
ment, either by means of the private pursuit of and nature of the investigation), the company
claims (eg, the civil claim of one entity or person may be requested to submit its views in respect
against another) or by means of the law in cases of the issues under investigation or to offer evi-
of tax offences, subsidies fraud, money launder- dence in its defence (of any type: witnesses,
ing, securities fraud, bribery and cartel offences. bank records and correspondence, among oth-
These measures are imposed by the competent ers) contesting the views of the investigating
agency according to the entity’s status (eg, authority (usually included in a draft report).
the Capital Market Commission, the Revenue
Service, special departments of the Ministry Dawn raids may take place in emergency situ-
of Finance). As a general rule, the competent ations (for instance, to secure evidence) and
agency for imposing these types of sanctions home searches are conducted in the presence
is the one supervising the entity’s registration, of a prosecutor or magistrate.
licences, regulation, etc.
7.4 Discretion for Mitigation
7.3 Process of Application for Article 263A provides for leniency for individu-
Documentation als who inform and/or assist the prosecuting
In most cases, the authorities will send a written authorities on corruption cases, depending on
request to a company to forward certain infor- the procedural stage of the case and on the
mation or documents. In principle, a company level of their assistance. Notably, if during the
must co-operate with the authorities, at least in investigation the perpetrator of an act of bribery
terms of providing requested information and contributes substantial information regarding the
documentation. Failure to comply with such a participation of a public official, they will receive
request usually has no direct consequences a reduced, or even suspended, sentence.
(unless otherwise provided for by law) but may
lead to an unfavourable report by the authori- 7.5 Jurisdictional Reach of the Body/
ties or an on-site search and seizure to obtain Bodies
requested material. Jurisdiction rules are set out expressly by the
Greek Code of Criminal Procedure and are oblig-
172 CHAMBERS.COM
atory. Depending on the place where the offence Other major investigations have been conducted
was committed, the corresponding Prosecutor’s in relation to multinational companies that have
Office will initially have jurisdiction over the case. reportedly been systematically giving money
It should, however, be noted that the Prosecu- to public officials to secure awards of multi-
tor’s Office for Financial and Economic Crime million-euro government contracts, in respect
may claim jurisdiction over major corruption of advanced communication systems, medical
and bribery cases. In such instances, they will supplies and military expenditure (such as Sie-
handle the case during the preliminary inquiry mens, Johnson & Johnson/DePuy, HDW/Fer-
but, at later stages of the criminal proceedings, rostaal, STN). Investigations have also targeted
jurisdiction will return to the competent crimi- acts of corruption of former government officials
nal authorities (eg, the investigating judge, the in relation to facilitating payments and tax-fraud
judicial council and the court) of the place of the schemes through real estate deals.
commission of the offence.
7.7 Level of Sanctions Imposed
Moreover, it should be highlighted that the pros- If an individual is convicted, the court has a
ecuting authorities may also proceed with over- broad margin in deciding their sentence. The
seas mutual legal assistance requests with the length of the sentence depends on a variety of
aim of retrieving information located abroad, as “personal” factors, such as the individual’s role
well as with spontaneous exchange of informa- in the criminal act, their criminal past, their fam-
tion with their corresponding authorities. ily and personal status, etc. The amount of the
bribe and the reason for which the bribe was
7.6 Recent Landmark Investigations or given or promised is also taken into considera-
Decisions involving Bribery or Corruption tion. It should be noted that, under the previ-
Based on the findings of a financial investigation ous legal regime, ie, until the introduction of
conducted by third parties, it was revealed that, the new Criminal Code on 1 July 2019, people
from 2001 to 2017, the management of a Greek- found guilty of bribery sometimes received sen-
based international company that designs, man- tences exceeding 15 years’ imprisonment, or
ufactures and distributes luxury jewellery and even received life imprisonment. However, dur-
watches had falsified its financial statements by ing the appellate proceedings, such sentences
inflating its sales, profits and equity, through vir- were usually reduced to more reasonable terms,
tual purchases and sales. These fictitious trans- which had to be partly served.
actions allegedly took place between 27 com-
panies in different parts of the world, mainly in
Asia. After the conclusion of a preliminary inquiry 8. Review
and a main investigation, the Judicial Council
with the Court of Misdemeanours of Athens 8.1 Assessment of the Applicable
decided on the indictment of the former CEO Enforced Legislation
and other defendants, including the founder of In its latest “Phase 3bis follow-up: Additional
the company, on charges of forming a criminal written report” of 2018, the Organisation for Eco-
organisation, falsifying the company’s financial nomic Co-operation and Development (OECD)
statements, market abuse, money laundering observes that Greece has fully implemented all
and embezzlement. the recommendations, based on the conclusions
173 CHAMBERS.COM
of the two-year written follow-up report of June

2017.
8.2 Likely Changes to the Applicable

Legislation of the Enforcement Body
A law was recently voted by the Parliament,
which included some amendments to bribery
legislation, with a view to expanding the jurisdic-
tion of Greek courts on bribery acts committed
abroad and restricting leniency measures with
regard to bribery.
174 CHAMBERS.COM
ANAGNOSTOPOULOS is a leading practice, take a holistic and creative approach to com-

established in 1986, which offers high-value plex cases and are fully committed to the cli-
services in managing criminal and regulatory ents’ needs, whilst upholding high standards
risks to corporates and selected individuals. of ethics and professional integrity. The firm
The firm is noted for combining sophisticated responds to the emerging needs of corporate
advice with forceful litigation in a wide variety clients, drawing upon a solid knowledge base
of practice areas. Over the years, Anagnosto- in corporate criminal liability, internal company
poulos has built a strong reputation as a team investigations, compliance procedures, corrup-
of high-end specialists in which all members tion practices and cartel offences.
Authors
Ilias Anagnostopoulos leads the Alexandros Tsagkalidis is an
litigation group at attorney who has been with
Anagnostopoulos and has Anagnostopoulos since 2008.
advised and represented He has advised and represented
corporations and individuals in high-end clients in complex
prominent cases through white-collar crime cases with
multiple jurisdictions in the past three decades. trans-jurisdictional aspects and has gained
His practice focuses on complex matters broad experience in business crime, corruption
involving financial fraud, corrupt and anti- and anti-competitive practices, money
competitive practices, tax and money- laundering, asset recovery, financial fraud, tax
laundering offences, extradition and mutual offences, extradition and mutual assistance
assistance requests. As a legal expert, he requests. He is a member of the Legal Experts
regularly offers opinions in domestic and Advisory Panel of Fair Trials International and
foreign jurisdictions. Since 2013, Ilias has the Hellenic Criminal Bar Association.
chaired the Hellenic Criminal Bar Association, Alexandros has published in Greek and English
and from 2006 to 2013 he chaired the criminal on matters of business crime, investigation
law committee of the Council of the Bars and procedures, money laundering, European
Law Societies of Europe (CCBE). He is a criminal law, defence rights, extradition and
professor of criminal law and criminal surrender procedures.
procedure at the National and Kapodistrian
University of Athens. Ilias has published
extensively in Greek, English and German on
matters of Hellenic, European and international
criminal law, business and financial crimes,
reform of criminal procedure and human rights.
175 CHAMBERS.COM
ANAGNOSTOPOULOS
6 P. Ioakeim
GR 106 74
Athens
Greece
Tel: +30 210 729 2010

Fax: +30 210 729 2015
Email: contact@iag.gr
Web: www.iag.gr
176 CHAMBERS.COM
GREECE Trends and Developments

Contributed by:
Ovvadias S. Namias, Vasileios Petropoulos
and Ilias Spyropoulos
Ovvadias S. Namias Law Firm see p.183
Introduction companies, have the authority to commission

Under Greek law there is no legal obligation for private bodies, such as an auditing or legal firm,
companies (or groups of companies) to carry out to carry out an internal investigation. Of course,
internal investigations. The Greek Code of Crimi- there is also the classical way, ie, the internal
nal Procedure does not provide any information investigation can be led by the Public Prosecu-
regarding the permitted or prohibited nature of tor’s Office, which carries out the investigations
private investigations. As a result, the area of with the help of state authorities, such as the
corporate or intra-group investigations in the Financial Police, the Economic Crimes Depart-
Greek legal system can be regarded as a legal ment of the Tax Office, etc.
vacuum. However, it is accepted that the investi-
gation of crimes is not exclusively granted to the Recent judicial practice has shown that con-
state, which gives private internal investigations ducting an internal investigation at an early stage
a permissible character. of a criminal case is crucial for the effective gath-
ering of evidence and a speedy trial. So, there
Conduct of Internal Investigations in Greece are many benefits from this practice, not only
There is still not a specific legal framework in for the company that commissions the internal
Greece concerning the conduct of internal inves- investigation but also for the state:
tigations and the Greek Code of Criminal Pro-
cedure does not provide any information on the • First, an objective third party, with sufficient
nature of (private) internal investigations. There- human resources, relevant expertise and
fore, there is a lack of standardisation of the pro- appropriate means depending on the particu-
cedure for both the collection and the recording larities of each case, collects and assesses
of the investigative findings. the evidence in an efficient manner. In this
way, it becomes clear from the outset wheth-
It appears that more and more criminal cases er or not there is sufficient evidence of the
from Greek legal practice are based on mate- commission of a particular offence and the
rial collected and evaluated by means of inter- referral of cases that have not been suffi-
nal investigations. Under the Greek legal sys- ciently processed in the pre-trial stage is thus
tem, investigations within the company can take avoided.
place either voluntarily, after a Board of Direc- • Prosecutors’ and investigative offices, as well
tors’ decision, or on the initiative of the state as supervisory authorities, often lack the nec-
authorities. In the former case, the purpose of essary resources to effectively pursue a com-
self-regulation is not to avoid criminal conduct, plex criminal case. Therefore, conducting an
but to uncover and punish it later. In the latter internal investigation either at the initiative of
case, certain public authorities, such as the the company concerned or the Prosecutor’s
Capital Market Commission in the case of listed Office would lead to savings of critical state
177 CHAMBERS.COM
Contributed by: Ovvadias S. Namias, Vasileios Petropoulos and Ilias Spyropoulos, Ovvadias S. Namias Law Firm
resources and would also prevent the risk of company whether to file a criminal complaint
an incomplete investigation of the case. – and, if so, against whom this complaint will
• The practice of internal investigations will help be filed. In order to prepare the report, an inter-
speed up all stages of the criminal procedure. nal investigation is carried out in the company,
Such a development would be beneficial on based on the entirety of the available mate-
many levels for a country like Greece, where rial, such as email correspondence, records,
there are serious delays in the administration documents, balance sheet rolls, interviews, etc.
of justice. The most crucial part of the report is the legal
assessment and proposal regarding the criminal
Importance of Internal Investigations Under misconduct that was investigated. The practi-
the Greek Legal System cal relevance of internal investigations after the
The Greek legal system does not contain any reform of the Economic Criminal Law in Greece
specific provisions that focus on a reaction to is thus evident.
the violations of rules that have already been
committed with the aim of clarifying them and Internal investigations can also be crucial for the
limiting their consequences. However, that does purpose of determining the amount of the dam-
not mean that the practice of internal investiga- age caused by a criminal conduct against the
tions is foreign or unknown to the Greek legal interests of the company or by an agent of the
order. company. This is particularly important in view of
the introduction of alternative procedural forms
First of all, a new “general provision” (Article 405 for settling criminal trial in the Greek legal order,
of the Greek Criminal Code) was introduced into ie, criminal conciliation (Articles 301, 302 Greek
the Criminal Code as the last article in the chap- Code of Criminal Procedure), plea bargaining
ter on property crimes, according to which in (Article 303 Greek Code of Criminal Procedure)
most property crimes (ie, fraud, computer fraud, and satisfaction of the harmed person (Article
embezzlement against credit institutions) – irre- 405 (2) (3)). That way the conduct of an internal
spective of the amount of the damage – pros- investigation, even after the commencement of
ecution only occurs at the request of the injured criminal prosecution, can simplify and acceler-
party. This provision concerns the core of the ate the proceedings, which is critical because of
matter of economic criminal law. the serious delays in the administration of justice
in Greece.
A company can also be considered an injured
party. Legal entities can lodge criminal com- Furthermore, Article 102 of the Greek Compa-
plaints and participate in the criminal proceed- nies Act is equally fundamental in relation to
ings as civil prosecutors. It goes without saying the conduct of internal investigations. Article
that after this fundamental legal change, the 102 (1) states that the members of the board
companies concerned hire external consultants of directors shall be liable to the company for
or investigators – in practice, mostly specialised any damage incurred as a result of their acts
lawyers – to prepare a report to clarify possible or omissions contrary to their duties. Pursuant
criminal conduct as well as to determine the cir- to Article 102 (4), the liability of the members of
cle of potential offenders. On the basis of the the board of directors may be excluded if such
report, the decision is made on the part of the acts or omissions are based on expert opinion
178 CHAMBERS.COM
or assessment of an external, independent third made possible due to a lack of or inadequate

party who has relevant expertise. supervision of the perpetrator on the part of the
legal entity. Administrative sanctions can be very
Board members are often faced with a tough high (sanctions range from EUR50,000 to EUR10
dilemma, when there is a suspicion of certain million and temporary suspension of operations
illegal conduct within the legal entity, but it is not between one month and two years – possibly
sufficiently substantiated. The filing of an unsub- even permanent suspension of operations).
stantiated complaint, especially if it is directed
against a specific person, carries the risk of Article 45 (4) of the Money Laundering Act pro-
incriminating board members for the offences vides, inter alia, that the cumulative or alternative
of defamation (Article 363 of the Greek Criminal imposition of the above sanctions, as well as the
Code) and false accusation (Article 229 of the corresponding sanction assessment, depend on
Greek Criminal Code). At the same time, failure the actions of the company after the unlawful
to lodge a criminal and/or civil complaint runs act. This provision sufficiently demonstrates
the risk that claims may be brought against the that potential internal company investigations
members of the Board under Article 102 of the with regard to violations of rules relevant under
Greek Companies Act or even that criminal liabil- criminal law can lead to a mitigation of the pre-
ity for the offence of abuse of trust (Article 390 scribed sanctions for the legal entity.
of the Greek Criminal Code) may be incurred. In
this case, an internal investigation by a law firm In addition, Article 263A of the Greek Criminal
specialising in criminal law is a one-way street. Code provides for leniency measures for per-
Based on the findings and legal assessments of sons who contribute to the disclosure of acts of
the final report, board members will act without corruption, while according to Article 396 (2A)
the risk of incurring civil or criminal liability. of the Greek Criminal Code the punishability of
the acceptance and offer of an advantage in the
It thus turns out that the investigator’ s final private sector (Article 396 (1) (2) of the Greek
report is important in two respects: Criminal Code) is expunged if the responsible
person, of their own volition and before being
• for the prosecution of potential criminal examined in any way by the authorities, reports
offences within the company; and their act to the judicial authorities by means of
• to avoid possible legal consequences for the a written report. Ordering an internal investiga-
members of the board of directors. tion and submitting a thorough final report to the
competent judicial authorities can therefore have
Furthermore, Article 45 of the Money Laundering significant benefits for all parties involved.
Act of 2018 is of importance. Under this arti-
cle, the imposition of administrative fines and From the presentation of the above provisions,
other administrative sanctions on legal persons it can be concluded that, despite the fact that in
can occur as a secondary effect of a criminal Greek law internal investigations are not explic-
punishment for money laundering, if the money itly regulated, they can have a substantial (posi-
laundering or the predicate offence was com- tive) effect on the possible legal consequences
mitted for the benefit of the legal person. The for both the company and the members of the
same applies if the money laundering was only board of directors.
179 CHAMBERS.COM
Order for an Internal Investigation by accordance with the rule of law and avoid
Supervisory Authorities mistakes that could jeopardise the use of the
It is common for Greek supervisory authorities material obtained.
to commission law firms or auditing companies • The attorney–client privilege is protected
to conduct an internal investigation. Especially under Greek law. Any kind of communication
in capital market cases, the Greek supervisory between lawyer and client is protected. For
authority, the Hellenic Capital Market Com- this purpose, reporting will also be able to
mission, has ordered the conduct of an inter- remain part of the client–lawyer relationship.
nal investigation in order to save money and In this sense, a report cannot be filed without
manpower, especially when the company under the client’s consent.
investigation refuses to respond to an initial • The interrogation of persons will be properly
summons. In this case, the cost of the inves- conducted; the listing of findings will remain
tigation shall be borne by the listed company fact-related. Certain – normative – assess-
under investigation and the final report is primar- ments against suspects will be avoided at this
ily addressed to the company and also to the time if possible. A fair trial will be ensured.
supervisory authority because the administrative • Data protection law shall be considered in
investigations must remain secret. However, it the collection and evaluation of the mate-
is rather common for minority shareholders to rial. Thus, it must be ensured both that the
demand access to the report in order to bring material remains usable in court in the future
criminal and/or civil charges against the execu- and that the company board of management
tive board of the company. To this end, the report does not run any risk under criminal law when
can only be kept secret after invoking the attor- conducting an internal investigation.
ney–client privilege, which applies when the • On the basis of expertise and experience,
investigation is carried out by a law firm. they can accurately evaluate the findings
from the point of view of criminal law. This
Conduct of Internal Investigations by Lawyers is especially important when offences are
Specialising in White-Collar Criminal Law investigated that can only be prosecuted at
It is fundamental for the efficient conduct of an the request of the injured party (for example,
internal investigation to involve external investi- most property crimes) and it applies both in
gators or consultants. In practice, the persons cases where an application for criminal pros-
involved are, for the most part, specialist lawyers ecution is to be made to the public prosecu-
in criminal law, and in some cases also auditors tor’s office and (primarily) when this is waived.
who act on behalf of the company concerned. For example, in a recent internal investigation
concerning a large pharmaceutical com-
In the context of this co-operation, lawyers pany, the incorrect legal assessment of acts
specialising in white-collar criminal law or law preceding the predicate offence as acts of
firms in general have the following comparative money laundering resulted in an unnecessary
advantages compared to auditing firms or in- extension of the scope of the criminal pros-
house lawyers. ecution. The adverse consequences of such
an error are obvious.
• The attorney specialising in white-collar • A specialised criminal lawyer always reckons
criminal law can control the investigation in with the possibility that the contents of their
180 CHAMBERS.COM
final report can be assessed in other legal country out of the Eurozone as well as the
systems by means of mutual legal assistance, European Union, Greece is implementing a
while also being able to evaluate properly well-structured modernisation programme.
the evidence already supplied, by means of This programme has been approved by the
mutual legal assistance from foreign legal relevant European institutions as a financing
orders (especially under the scope of the prin- programme of the Greek economy through
ciple of speciality). the EU recovery fund (next generation EU).
• As an external, independent evaluator, they Due to the fact that the last evaluations of
are able to ensure more favourable treatment the rating agencies as well as the economic
by the authorities towards the board mem- organisations are particularly positive for
bers following the specialist lawyer’s advice. Greece, it seems that the Greek modernisa-
tion programme is also receiving recognition
It should not be forgotten that, although the area in the international markets for investments.
of internal investigations is to be regarded as a • Greece, according to general opinion, is
legal vacuum, the investigators are not operating entering a phase of change and moderni-
in a lawless space. In addition to data protec- sation of the production model in various
tion law, supplementary penal provisions also sectors. According to the National Recovery
pose a number of hurdles that must be taken Plan under the title “Greece 2.0”, Greece will
into consideration at all costs in order to avoid receive from the Recovery Fund, which aims
criminal liability, claims for damages because of to support economic recovery after the COV-
the internal investigation and possible grounds ID-19 crisis, for the period from 2021 to 2025,
for nullity. EUR32 billion. Furthermore, for this pur-
pose, it is necessary to take into account the
The relevant criminal provisions focus on pro- economic resources provided by European
tecting individual interests of employees in development programmes, as well as private
individual investigative measures. The conflict investments required for the large investment
between the duty to testify under labour law projects. In total, a national capital of EUR59
and the nemo tenetur principle comes to the billion will be created, which will completely
fore here. The lawyer’s duty of confidentiality and change the Greek economy. The investment
other professional duties, which are established pillars of this plan are the following:
for the protection of the client, should also be (a) green energy in the context of climate
considered. change and the energy crisis;
(b) digitalisation, co-ordination and intercon-
Internal Investigations: A Modern Practice, nection of public services;
Which Will Also Prevail in Modernising (c) large infrastructural works, such as en-
Greece largement of the U-ban network, high-
The assessment that this practice will prevail ways, underwater electrical connection
in Greece is based on the following facts and between the islands; and
thoughts. (d) in this direction, the already announced
investments of Microsoft, Google, Ama-
• Αfter a dramatic decade of great recession zon, Pfizer (in Thessaloniki), Volkswagen
and political instability, which almost led the (green island in Astypalaia), Digital realty,
181 CHAMBERS.COM
Royal sugar, and of course Hellinikon investigations, it is safe to expect that, on the
(approx. EUR8 billion) etc, are of symbolic one hand, the corporations themselves will
importance. voluntarily undertake such investigations by
• In addition, circumstances are favourable for independent carriers, such as law firms or
Greece, as stagnant global capital is looking audit firms, to clarify unlawful internal corpo-
for attractive investment areas, regardless of rate actions; on the other hand, the authori-
the fact that such areas may have high levels ties themselves will be interested in entrust-
of public debt. Furthermore, the resurgence ing law firms or audit firms with this task. As
of American corporations must be included. already described, this was the case with the
• Thus, the question now arises to what extent Folli-Follie, MLS, Siemens, Novartis and Atlas
the foregoing considerations can be linked to proceedings.
the topic of intra-corporate investigations. It • The activity of international companies in
goes without saying that the already men- Greece may result in the application of not
tioned ambitious development and infra- only Greek but also foreign administrative
structure projects are taken over by large, and/or criminal provisions, such as those
international groups, which have the cor- included in the German Administrative
responding “know-how” and the necessary Offences Act (OWiG), the UK Bribery Act and
experience in the respective area. It is also the US Foreign Corrupt Practices Act, which
understandable that, as far as the economic encourage (and reward) the conduct of an
situation in Greece in the coming years is internal investigation.
concerned, these groups will come to the • Last but not least: conducting a quality
fore. Since such groups are very familiar with internal investigation at an early stage of the
the concept, with the benefits as well as with criminal proceedings can make a significant
the practice of internal investigations – at contribution to speeding up the administra-
least in comparison with the small, medium tion of justice. This is because, as practice
or larger companies in Greece – and since has repeatedly demonstrated in a number of
these investigations are considered part of cases, conducting a targeted internal investi-
corporate governance, it is to be expected gation by a team of experienced profession-
that their active presence will accelerate the als (criminal lawyers) at an early stage signifi-
adaptation of this practice in the Greek mar- cantly reduces the risk of serious deficiencies
ket in general. It is quite clear that the new in the evidence and in the structure and
Law 4706/2020 on corporate governance substantiation of the accusation, which will
will be supplemented, either in the direction result in both a delay in the trial of the case
of a mandatory carrying out of investigations and in the dismissal of the accusation. The
in the company by an external, independent extension of the application of internal inves-
body (mainly in the case of listed companies), tigations will therefore have another important
or in the direction of a general, voluntary advantage for Greek affairs with institutional
practice on the part of the companies, which value, to the extent that it can contribute sub-
will realise the benefits of such an option. In a stantially to the fight against the basic patho-
corporate world in which both the authorities genesis of the Greek criminal justice system,
and the companies are becoming increas- which is unfortunately the long time required
ingly familiar with the benefits of internal for the administration of criminal justice.
182 CHAMBERS.COM
Ovvadias S. Namias Law Firm is located in and international court assistance in penal cas-
Athens and was established in 2006. The firm es. The firm is also experienced in conducting
consists of ten partners and associates and has and evaluating criminal internal investigations.
dealt with major penal cases of national and The firm offers to domestic and foreign legal
global interest for crimes relating to the bank- entities its wide knowledge and experience in
ing sector, stock exchange, tax and customs of- issues concerning corporate penal liability and
fice sector, money laundering, extradition, and compliance with the provisions of penal law.
mutual legal assistance. The firm provides, to The experience and the scientific training of its
natural persons and legal entities, legal services members correspond to the contemporary re-
that extend to the whole spectrum of penal law, quirements of the national and international leg-
with particular emphasis on financial penal law islative framework.
Authors
Ovvadias S. Namias is the Vasileios Petropoulos joined
managing partner of Ovvadias Ovvadias S. Namias Law Firm in
S. Namias Law Firm. He was an 2010 and is a partner practising
Attorney at Law of the National in the areas of white-collar crime
Bank of Greece from 1999 to (stock market law, stock
2006, specialising in financial exchange offences, insider
penal issues. Ovvadias has provided trading, market abuse, breach of trust, fraud,
consulting services and in-court assistance in money laundering, and tax criminal law), and
criminal cases of fraud (breach of trust, with experience in cross-border regulatory
corruption), bribery, tax evasion, customs compliance and criminal internal investigations.
office offences, stock-exchange offences, He is an assistant Professor in the Faculty of
insider trading, market abuse, legalisation of Law at the National and Kapodistrian
profits from illegal activities (money University of Athens. Vasileios has published
laundering), and personal data, as well as in monographs and many articles and
cases of European criminal law, extradition and participated in several legislative committees.
mutual legal assistance. Active in the field of He is fluent in German and English. Vasileios is
criminal internal investigations, Ovvadias also a member of the board of directors of the
lectures regularly and is widely published. He Hellenic Association of Penal Law, a member
is fluent in English, German and French. A of the drafting committee of the legal journal of
member of the board of directors of the the Hellenic Criminal Bar Association and a
Hellenic Criminal Bar Association from 2004 to member of the Patras Bar Association (2003).
2022, Ovvadias is President of the General
Assembly of the Jewish Community of Athens
and has been a member of the Athens Bar
Association since 1993.
183 CHAMBERS.COM
Ilias Spyropoulos is a senior

associate at Ovvadias S. Namias
Law Firm and has been involved
in numerous cases,
predominantly related to fraud,
breach of trust, bribery, money
laundering, extradition and mutual legal
assistance. He is also active in the field of
criminal internal investigations. Ilias undertook
his undergraduate studies in law at the
National and Kapodistrian University of Athens,
and also obtained his LLM in Criminal Law and
Criminal Procedure. He then received his PhD
in Criminal Law from the Ludwig-Maximilians-
University of Munich. Ilias is fluent in English
and German and conversational in French. He
has been a member of the Athens Bar
Association since 2010 and of the Munich Bar
Association since 2011.
Ovvadias S. Namias Law Firm

16 Voukourestiou Street
106 71
Athens
Greece
Tel: +30 210 7239738

Fax: +30 210 7239773
Email: info@namiaslaw.gr
Web: www.namiaslaw.gr
184 CHAMBERS.COM
ITALY
Switzerland Slovenia
Law and Practice France Croatia

Bosnia
Italy
Contributed by: Rome
Albania
Alessandro Pistochini, Andrea Gaudio, Guido
Stampanoni Bassi and Francesca Gelli
Pistochini Avvocati Studio Legale see p.208
Contents
2.1 Bribery p.188
3. Scope p.192
5. Penalties p.195
Penalties p.196
185 CHAMBERS.COM
ITALY Law and Practice
Contributed by: Alessandro Pistochini, Andrea Gaudio, Guido Stampanoni Bassi and Francesca Gelli,
Pistochini Avvocati Studio Legale
1. Legal Framework for Offences Code (which proscribes bribery in the private
sector – see 2.1 Bribery).
1.1 International Conventions
Italy is a signatory to several international con- 1.3 Guidelines for the Interpretation and
ventions on bribery and corruption, including: Enforcement of National Legislation
The interpretation and enforcement of anti-
• the OECD Convention on Combating Bribery corruption provisions is requested of the Italian
of Foreign Public Officials in International courts, whose activity is facilitated by the contri-
Business Transactions (signed in Paris on 17 butions of legal doctrine. Although Italy does not
December 1997 and ratified on 15 December adopt a stare decisis principle, some important
2000); case-law rulings play a significantly persuasive
• the Convention drafted on the basis of Article role in the interpretation of anti-corruption rules.
K.3 (2) (c) of the Treaty on European Union on
the fight against corruption involving officials On the administrative side, the National Anti-
of the European Communities or officials Corruption Authority has published numer-
of Member States of the European Union ous recommendations and guidelines, which,
(signed in Brussels on 26 May 1997 and rati- despite many of them not being binding, do
fied on 6 March 2003); assist in the interpretation and enforcement of
• the United Nations Convention against Cor- the rules on the prevention of corruption (eg,
ruption (signed in New York on 31 October regarding legal services or prevention of cor-
2003 and ratified on 5 October 2010); ruption in state-owned companies).
• the Council of Europe’s Criminal Law Con-
vention on Corruption (signed in Strasbourg 1.4 Recent Key Amendments to National
on 27 January 1999 and ratified on 13 June Legislation
2013); and Since 2012, Italy has embarked on a path of
• the Council of Europe’s Civil Law Conven- broad-ranging structural reforms, directly or
tion on Corruption (signed in Strasbourg on indirectly relating to anti-corruption provisions,
4 November 1999 and ratified on 13 June which have significantly amended the Italian
2013). Criminal Code (ICC), the Code of Criminal Pro-
cedure and even the Penitentiary System.
1.2 National Legislation
In the Italian legal system, the legislation con- The most effective amendments to the anti-cor-
cerning corruption offences is provided for in the ruption measures were introduced in 2019 by
section dedicated to offences against the public Law No 3/2019 (the so-called Bribe Destroyer
administration in the Criminal Code and in the Act), which takes a significant step towards fur-
Code of Criminal Procedure. ther advancing the repression of bribery.
However, some fundamental provisions specifi- This positive process has continued in 2020 and
cally applicable to bribery offences can also be further innovations have been introduced.
found in Legislative Decree No 231/2001 (refer-
ring to the administrative liability of legal entities Specifically, it is worth highlighting the 14 July
– see 3.3 Corporate Liability) and in the Civil 2020 Legislative Decree No 75 (effective since
186 CHAMBERS.COM
30 July 2020) entitled “Implementation of the EU ICC) when the facts affect the EU’s financial
Directive No 2017/1371 (so-called PIF Directive) interest.
concerning the contrast, by means of criminal
law, of frauds affecting Union’s financial inter- Furthermore, Law Decree No 76 of 16 July 2020
ests”. (converted into Law No 120 on 11 September
2020) amended the crime of abuse in office
With specific reference to anti-corruption meas- (Article 323 of the ICC) in order to restrict the
ures, the Decree: conduct which may be potentially relevant under
that provision.
• introduced paragraph no 5-quinquies in Arti-
cle 322-bis of the ICC, which extends liability In greater detail, the Decree replaced the words
for the offences of embezzlement (Article 314 “violations of either rules of Law or secondary
of the ICC), embezzlement by taking advan- regulations” with “violation of specific rules of
tage of third parties’ error (Article 316 of the conduct expressly set forth by rules of either
ICC), blackmail by a public official (Article Law or equivalent legislations which are not
317 of the ICC), undue induction to give or discretionary”.
promise benefits (Article 319-quater of the
ICC), active and passive bribery (Articles 318, This modification of the legal provision deter-
319, 319-ter, 320 and 321 of the ICC), incite- mined three consequences that are connected
ment to bribe (Article 322 of the ICC) persons to each other:
exercising functions or activities correspond-
ing to those of public officials and persons in • violations of secondary regulations are no
charge of a public service in states which are longer relevant for the crime of abuse in office
not part of the European Union, when the fact to be perpetrated;
affects the EU’s financial interests; • only violations that are both specific and
• increased the sanctions provided for the expressly provided by the Law rules of con-
crimes of embezzlement by taking advantage duct are able to trigger the crime at issue.
of third parties’ error (Article 316 of the ICC), This means that the offence pursuant to Arti-
undue receipt of funds to the detriment of the cle 323 of the ICC cannot be perpetrated by
state (Article 316-ter of the ICC) and undue merely violating general principles of the legal
induction to give or promise benefits (Article system (eg, Article 97 of the Italian Constitu-
319-quater of the ICC) in the event that the tion, which states the duties of impartiality
offence concerns money or another advan- and sound management of the public admin-
tage diverted from financial statements of the istration); and
EU or its bodies if the subsequent damage is • only violations of non-discretionary rules of
over EUR100,000; and conduct can be considered for charges of
• listed under Article 25 Legislative Decree No abuse in office. This implies that the abuse of
231/01 the offences of embezzlement (Arti- power (which may occur when, in discretion-
cle 314 of the ICC), embezzlement by taking ary acts, power is used for a purpose which
advantage of third parties’ error (Article 316 of is different from that for which it was granted)
the ICC) and abuse in office (Article 323 of the can no longer be regarded as criminal.
187 CHAMBERS.COM
It follows that the reform at issue determined a • reform of the statute of limitations.
partial abolitio criminis with reference to the vio-
lations which are no longer included in the legal
provision, pursuant to Article 323 of the ICC. 2. Classification and Constituent
Elements
As far as the criminal enforcement of anti-cor-
ruption laws is concerned, the institution of the 2.1 Bribery
European Public Prosecutor’s Office (EPPO) The Italian legislator punishes corruption offenc-
which started operating on 1 June 2021 (see 7.2. es by means of a complex regulatory system
Enforcement Body and 7.3 Process of Applica- aimed at dealing with different types of crimes,
tion for Documentation) is also worthy of note. which are provided for in Articles 318, 319, 319-
ter and 320 (passive bribery) and Articles 321
Finally, it is important to highlight that on 17 and 322 (active bribery) of the ICC.
October 2022, Legislative Decree No 150 was
published in the Italian Official Journal, with the More specifically, the ICC considers as a criminal
purpose of implementing reform of the Italian offence the conduct of a public official or person
criminal justice system (the so-called Cartabia performing a public service:
Reform) in accordance with the principles con-
tained in Law No 134/2021. • who, to exercise their functions or powers,
unduly receives, for themself or a third party,
The reform is basically aimed at speeding up the money or another advantage, or accepts a
criminal trial and provides many modifications to promise of them (Article 318 – bribery for the
the actual system, such as: exercise of a function);
• who receives money or any other advantage,
• implementation of telematic criminal trial; or the promise thereof, for themself or a third
• amendments to the rules on notifications to party, to omit or delay, or for having omit-
the defendants after the first notification; ted or delayed acts relating to their office, or
• time limit of the preliminary investigations; to perform or for having performed acts in
• redefinition of time limits for the preliminary breach of their official duties (Article 319 –
investigations and of the conditions and for bribery for the performance of acts in breach
extensions; of official duties); or
• modification of the rule of judgment of the • who commits the offences described in the
preliminary hearing; first two points in favour of or against a party
• introduction of a pre-trial appearance hear- to civil, criminal or administrative proceedings
ing in the proceedings with decree for direct (Article 319-ter – bribery in judicial proceed-
summons to trial (without preliminary hearings).
ing);
• reform of appeal judgments; Punishment for passive bribery shall also apply
• amendments of criminal penalties (ie, substi- to whoever gives or promises money or any
tute penalties for short-term imprisonment, other advantage to a public official or person
financial penalties, terms for probation); performing a public service if the promise is
• regulation of reparative justice measures; and accepted (Article 321 – active bribery).
188 CHAMBERS.COM
Conversely, if the offer, promise or request of Public Official

a bribe is not accepted, the mere conduct of The definition of “public official” is provided by
incitement to corruption is considered as a minor Article 357 of the Criminal Code as those who
criminal offence (pursuant to Article 322, pun- perform a legislative, judicial or administrative
ishment provided for in Articles 318 or 319 is public function (ie, an administrative function)
reduced by one third). that is:
Under Italian legislation, bribery offences do not • regulated by the public law provisions and
just include cases where the public official per- acts of an authority; and
forms an act in accordance with or contrary to • characterised by the formation and state-
their official duties because of a previous agreement of the public administration’s will or by
ment with the bribe giver. In fact, even the mere its implementation by means of authority and
agreement (or the mere solicitation) to perform certifying powers.
or not perform the functions of a public official in
return for a bribe also constitutes conduct pun- In addition to that figure, anti-corruption provi-
ishable under criminal law. In other words, there sions also cover acts committed by a “person
is no requirement for the results expected by the performing a public service”, which, under Arti-
perpetrators actually to occur. cle 358 of the ICC, is defined as whoever per-
forms any activity that is governed in accordance
It is important to note that the Criminal Code with the same modalities as a public function,
does not distinguish between a bribe (money or excluding the performance of merely ordinary
other advantage) and gifts, promotional expen- tasks and exclusively manual work.
ditures or other facilitation payments. For this
reason, even a small amount of money can trig- Moreover, according to international conven-
ger criminal provisions concerning corruption if tions ratified by Italy, Article 322-bis of the ICC
related to the exercise of a public function by extends the provisions applicable to domestic
the receiver. public officials to foreign public officials. More
specifically, the offences of embezzlement
However, many companies and public authori- (Article 314 of the ICC), embezzlement by tak-
ties have adopted codes of conduct that specifi- ing advantage of third parties’ error (Article 316
cally address this issue by regulating the condi- of the ICC), blackmail by a public official (Arti-
tions and extent of facilitation payments. cle 317 of the ICC), undue induction to give or
promise benefits (Article 319-quater of the ICC),
Finally, it is worth mentioning that the Italian active and passive bribery (Articles 318, 319,
criminal law system does not contemplate the 319-ter, 320 and 321 of the ICC), and incitement
conduct of individuals who fail to prevent bribery to bribery (Article 322 of the ICC) are triggered in
as an offence. In fact, the general provision set all cases when involving:
out in Article 40 of the ICC, for cases in which
omitting to avert a result is treated as an active • members of European Union institutions;
act, does not cover corruption offences. • contracted officials and agents in accord-
ance with either staff regulations applying to
189 CHAMBERS.COM
European Union officials or to the provisions tages (or accept the promise thereof) to perform
applying to European Union agents; or omit an act in breach of their duties.
• any person seconded to the European Union
by the Member States or by any public or pri- The same sanctions also apply to whoever,
vate body which carries out functions corre- even through an intermediary, offers, promises
sponding to those performed by the officials or gives money or other undue benefits to the
or agents of the European Union; persons mentioned in the paragraph above.
• members and servants of bodies created on
the basis of founding Treaties of the European It is important to note that Anti-corruption Law
Union; No 3/2019 has introduced the opportunity to
• those who, within European Union Member punish ex officio bribery in the private sector by
States, carry out functions or activities cor- eliminating the procedural requirement of a com-
responding to those performed by public offi- plaint by the victim.
cials or persons performing a public service;
• members of the International Criminal Court; 2.2 Influence-Peddling
• persons exercising public functions or In addition to corruption offences, the Criminal
activities within the framework of international Code also punishes the conduct of active and
public organisations and members of interna- passive trading in influence.
tional parliamentary assemblies or of an inter-
national or supranational organisation, and In particular, under Article 346-bis of the ICC, the
judges and officials of international courts conduct of any private person or official who, by
(paragraph introduced by Law No 3/2019); or exploiting or claiming a real or apparent influ-
• persons exercising functions or activities ence on a public official or a person in charge
corresponding to those of public officials and of a public service, unduly receives money or
persons in charge of a public service in states other financial advantage, as the price for their
which are not part of the European Union, own illicit mediation or for the payment of the
when the fact affects the Union’s financial public official, to act in contrast to their duties
interests (paragraph introduced by Legislative or to omit or delay an act of their duties, is con-
Decree No 75/2020). sidered criminal.
Private Bribery As a result of Anti-corruption Law No 3/2019,

In accordance with the Council of Europe’s Article 346-bis of the ICC has extended its scope
Criminal Law Convention on Corruption, the Ital- to the influence-peddling of foreign public offi-
ian legislator criminalises the conduct of bribery cials as defined by Article 322-bis of the ICC
between private parties. (see 2.1 Bribery).
More specifically, Article 2635 of the Italian Civil 2.3 Financial Record-Keeping
Code punishes directors, general managers, As required by international conventions, the
managers responsible for preparing a company’s Italian legislator criminalises certain conduct
financial reports, statutory auditors, liquidators deemed preparatory to bribery offences.
or any other employees of private entities who
solicit or receive undue money or other advan-
190 CHAMBERS.COM
For this reason, Article 2621 of the Civil Code relative’s conflict of interests) and failure to do
punishes directors, general managers, and man- so may fall under the crime of abuse in office, as
agers responsible for preparing the company’s set forth in Article 323 of the ICC.
financial reports, and statutory auditors and liq-
uidators who, in order to obtain an undue profit However, mere inobservance of the duty to
for themselves or for others, falsify financial abstain is sufficient to be deemed abuse in office
statements, reports or other corporate com- (the other conduct described by the legal provi-
munications addressed to shareholders or the sion is breach of the rules of conduct expressly
public, by presenting a misleading picture of the set forth by rules of either law or equivalent legis-
financial situation of the company (or group). lations which are not discretionary law or regula-
tions), but is not enough to trigger the offence
More severe penalties are envisaged for at issue.
accounting fraud regarding listed companies
(Article 2622 of the Civil Code). Indeed, for the occurrence of the offence under
Article 323 of the ICC, the law also requires:
2.4 Public Officials
Within the Criminal Code, the misappropriation • an undue financial advantage for the public
of public funds carried out by a public official is official or others or, alternatively, an unjust
relevant under the offence of embezzlement, set detriment to others; and
forth by Article 314 of the ICC. • the specific intention of the public official who
must act in order to obtain an undue advan-
In greater detail, this offence expressly punishes tage for themself or others, or to cause a
the public official who, having possession, or in detriment to a third party.
any case having available, money or other things
by reason of their functions, makes them their According to this provision, the public official
own. is punished whenever they act intentionally in
breaching the law or, otherwise, fail to abstain
In this case, no unlawful request or order must in circumstances of conflict of interests (rel-
arise from the public official, whose behaviour is evant even in the case of a third-party’s inter-
limited to embezzling money or other things of est), obtaining – in this way – an undue profit for
which they have possession. themself (or for others) or, alternatively, causing
a detriment to others.
However, the potentially unlawful taking of inter-
est or showing of illicit favouritism by a public Endangerment of Fairness of Tenders
official might trigger, respectively, the crime of The conduct linked to favouritism on the part
abuse in office or the endangerment of fairness of a public official, who guarantees an undue
of tenders. advantage to a third party by acting in breach
of the law ensuring free and equal access to
Abuse in Office bidders for the granting of contracts, is relevant
In the Italian legal system, public officials have from a criminal law perspective and is punished
the general duty to abstain in the case of a per- by two different provisions included in the Crimi-
sonal conflict of interests (or in the event of a nal Code.
191 CHAMBERS.COM
The offence under Article 353 of the ICC (dis- a general rule, set forth in Article 110 of the ICC,
turbing the fairness of tenders) punishes any- according to which any person who participates
one who, by means of violence or threat, gifts, in the commission of a crime (through conscious
promises, collusion or other fraudulent means, behaviour and causally linked to the fact) is lia-
prevents or disrupts the fair course of the tender, ble for it. In this way, any third party who acts
or prevents tenderers from competing in it. together with the agent is equally liable for the
crime committed.
Moreover, in the event such conduct is carried
out by a person designated by law or a public
authority to manage the tender, the sanctions 3. Scope
(fine and imprisonment) are increased. In this
case, the designated person is considered to 3.1 Limitation Period
hold the office of a public official. As a general rule, under Italian criminal law any
crime is extinguished after a period correspond-
The second offence to be considered is the ing to the maximum prison term provided for
crime or offence of “Disrupting the fairness of each offence and, in any case, after a period of
the procedure for choosing a bidder” as set forth not less than six years, starting from the day the
in Article 353-bis of the ICC. offence is committed (Article 157 of the ICC).
This legal provision punishes anyone who, by According to Articles 160 and 161 of the ICC,
means of violence or threat, gifts, promises, the limitation period can be suspended by one
collusion or other fraudulent means, alters the of the procedural acts specifically determined
administrative proceedings intended to deter- by the law (eg, the request for committal to trial)
mine the content of the call for bids, or any and may be extended by up to one quarter of its
other equivalent notice, pursuing the intention ordinary duration. Suspension for limitation peri-
to influence the methods adopted by the Tender od may be longer for corruption crimes under
Authority for choosing the successful bidder. Articles 318, 319, 319-ter, 319-quater, 320, 321,
322-bis of the ICC, for which the extension term
2.5 Intermediaries is doubled.
Some of the specific offences against the Pub-
lic Administration (ie, Articles 317, 318, 319, The statute of limitations was widely amended
319-quater, 323 of the ICC) provide for the liabil- by Law No 9/2019 (Bonafede Reform, after the
ity of a public official, both in the event that the former Minister of Justice), introducing a “freez-
act is committed by them, and in the event that ing clause” for the statute of limitations after the
the advantage or money (as forms of payment first-instance judgment for all crimes committed
for the performance or omission of the due or from 1 January 2020 (meaning that, for these
undue act, or merely as a result of the role the crimes, the limitation period ends with the issue
public official holds) is received by a third party. of the first-instance verdict).
Furthermore, all the above-mentioned offences This new clause was recently confirmed by Law
may hypothetically be committed through an No 134/2021 (Cartabia Reform), which also sets
intermediary: indeed, the criminal system states maximum time limits for appeal proceedings and
192 CHAMBERS.COM
for proceedings before the Supreme Court with Nevertheless, with regard to certain serious
regard to all crimes committed from 1 January offences such as corruption, Articles 9 and 10
2020. The limits are: of the Criminal Code establish national or uni-
versal jurisdiction over cases not covered by the
• two years (extensible for one further year in above-mentioned Article 6.
the event of a particularly complex trail) for
appeal proceedings; and Specifically, Italy has extraterritorial jurisdiction
• one year (extensible for six further months in over conduct wholly committed abroad which
the event of a particularly complex trial) for does not have any effect in the national territory
proceedings before the Supreme Court. when three conditions are met:
Both time limits run 90 days after the deadline • the perpetrator is within Italian territory;
for filing the grounds of the judgment. • the double-criminality principle is satisfied;
and
After these maximum time limits have passed, • a request for punishment is made by the Min-
criminal action is time-barred and the trial is ister of Justice or the injured party.
extinguished (Article 344-bis of the ICPC).
However, it should be mentioned that Anti-cor-
As for administrative liability of legal entities, the ruption Law No 3/2019 has recently facilitated
limitation period under Article 22 of Legislative the prosecution of corruption offences commit-
Decree No 231/01 is five years after the crime ted by a national or foreign citizen by eliminating
was committed. the condition that a request for punishment for
such crimes should be made by the Minister of
This term can be suspended by a request to Justice or the injured party.
apply precautionary measures and by an enti-
ty being charged with having committed the 3.3 Corporate Liability
administrative offence. In the latter event, the Legislative Decree No 231/2001 introduced
statute of limitations does not run until the final administrative liability against legal entities in the
judgment becomes enforceable. event that any of the crimes listed in Legislative
Decree No 231/2001 (including crimes against
3.2 Geographical Reach of Applicable public administration) are perpetrated by direc-
Legislation tors, managers or employees for the benefit of
Italian criminal law applies to crimes committed or in the interest of the company.
on Italian territory. More specifically, under Article
6 of the ICC, territorial jurisdiction is established This is an autonomous liability of the legal entity
(i) over conduct which occurred either wholly or (so-called organisational negligence) for not hav-
partially within the territory of the state, or (ii) ing adopted organisational models capable of
even in those circumstances where the offence preventing the crimes listed in the Decree from
is wholly committed abroad but its effects take being committed (for further details, see 4.5
place in the national territory. Safe Harbour or Amnesty Programme and 6.1
National Legislation and Duties to Prevent Cor-
ruption).
193 CHAMBERS.COM
In connection with this point, it is worth men- Another argument that may be used as a defence
tioning that a company’s liability arising from for the above-mentioned offences relates to so-
crimes committed is completely independent called mitigating or exonerating circumstances
of corporate events following the perpetration (see 7.4 Discretion for Mitigation and 4.5 Safe
of the crimes. Indeed, according to Articles 28, Harbour or Amnesty Programme).
29 and 30 of Legislative Decree No 231/01, in
the case of changes to a legal entity’s organi- Regarding the legal entity’s liability, see 6. Com-
sational structure, the company remains liable pliance and Disclosure.
for the offences committed before the date on
which the changes took effect; in the same way, 4.2 Exceptions
in the event of a merger or takeover, the result- There are no exceptions to the aforementioned
ing legal entity is liable for the offences for which defences.
the previous entities were responsible before the
merger or takeover. However, in the event of a 4.3 De Minimis Exceptions
partial split-up, the divided company remains In general, there are no de minimis exceptions
liable for crimes committed before the split. under Italian Law: a bribe of any value will con-
stitute an offence.
4. Defences and Exceptions The only exception – the relevance of which is,
in any case, subject to the court – can be con-
4.1 Defences figured if the “advantage” is permitted by the
In general terms, the Italian criminal system is law or if its value is very small as, for instance,
founded on the presumption of innocence, so in the case of a mere courtesy gift (the so-
that the burden of proof in demonstrating that a called munuscula). Please note that Decree No
crime has been committed lies with the prosecu- 62/2013 provides exceptions for munuscula or
tor. This means that, if there is any doubt about donations of modest value to be identified, for
the defendant’s guilt, they must be acquitted in public employees, to the amount of EUR150.
accordance with the in dubio pro reo rule.
The value of the bribe could also be taken into
With regard to an individual’s liability, the first account by the court as a mitigating factor in
defence for any crime (not only bribery or other determining the quantum of sanction to be
crimes against the public administration) may be imposed: according to the mitigating circum-
based on the demonstration that the so-called stance provided by Article 323-bis of the ICC,
objective elements of the offence have not been if the offences under Articles 314, 316, 316-bis,
satisfied or sufficiently proved by the prosecutor. 316-ter, 317, 318, 319, 319-quater, 320, 322,
322-bis and 323 of the ICC are particularly slight,
Furthermore, another defence strategy may the sanction is reduced by up to one third.
consist in attempting to demonstrate the lack of
intent by the defendant to commit a crime (lack 4.4 Exempt Sectors/Industries
of mens rea), which is a mandatory condition for In Italy, no sectors or industries are exempt from
punishment. corruption offences.
194 CHAMBERS.COM
It is, however, important to bear in mind that Penalties for the following offences when com-
most of the offences described require, as an mitted by individuals or legal entities are:
“objective element” of the crime, the fact that
the unlawful advantage is granted or promised • for the crime of misappropriation pursuant to
to a public official or a public service-provider. Article 314 of the Criminal Code:
(a) individuals: imprisonment from four to ten
4.5 Safe Harbour or Amnesty Programme years and six months (imprisonment from
With reference to corruption crimes, a new exon- six months to three years in the event of
erating circumstance – introduced by Law No temporary misappropriation); or
3/2019 – is provided by Article 323-ter of the (b) legal entities: fine of up to 200 units
Criminal Code in the event of self-incrimination (when the act affects EU financial inter-
and effective co-operation with the judicial ests);
authority. • for the crime of blackmail by a public official
pursuant to Article 317 of the Criminal Code:
For more details, see 7.4 Discretion for Mitiga- (a) individuals: imprisonment from six to 12
tion. years; or
(b) legal entities: fine from 300 to 800 units
Regarding the specific exonerating consequence and disqualifying penalties (Article 9,
for legal entities, arising from the adoption of an paragraph 2, Decree 231);
adequate compliance system, see 6.1 National • for the crime of bribery pursuant to Article
Legislation and Duties to Prevent Corruption. 318 of the Criminal Code:
(a) individuals: imprisonment from three to
eight years; or
5. Penalties (b) legal entities: financial penalty of up to
200 units;
5.1 Penalties on Conviction • for the crime of bribery pursuant to Article
Penalties upon conviction for the above offences 319 of the Criminal Code:
are different for individuals and legal entities. (a) individuals: imprisonment from six to ten
years; or
With specific regard to penalties provided for (b) legal entities: fine from 200 to 600 units
legal entities, penalties arising from crimes (from 300 to 800 units in the event of
can be “financial” or “disqualifying”; according significant profit by the company as a
to Article 10 of Decree No 231/2001, financial consequence of the crime) and disquali-
penalties are always applied for administrative fying sanctions (Article 9, paragraph 2,
offences arising from a crime and are applied in Decree 231);
terms of not less than 100 units (the so-called • for the crime of bribery in relation to judicial
quotas) and not more than 1,000 units. The acts pursuant to Article 319-ter of the Crimi-
amount of each unit is not below EUR258 and nal Code:
not above EUR1,549, according to Article 11 of (a) individuals: imprisonment from six to 12
Decree No 231/2001. years; or
(b) legal entities: fine from 200 to 600 units
(from 300 to 800 units in the event of
195 CHAMBERS.COM
significant profit by the company as a eight years; or

consequence of the crime) and disquali- (b) legal entities: fine from 400 to 600 units;
fying sanctions (Article 9, paragraph 2, and
Decree 231); • for the crime of private corruption pursuant to
• for the crime of undue inducement to give or Article 2635 of the Civil Code:
promise benefits pursuant to Article 319-qua- (a) individuals: imprisonment from one to
ter of the Criminal Code: three years; or
(a) individuals: imprisonment from six to (b) legal entities: fine from 400 to 600 units
ten years and six months for the public and disqualifying sanctions (Article 9,
officer. Imprisonment of up to three years paragraph 2, Decree 231).
(or up to four years when the act affects
EU financial interests and the damage or 5.2 Guidelines Applicable to the
profit is greater than EUR100,000) for the Assessment of Penalties
corruptor; or The only guidelines or principles applicable to
(b) legal entities: fine from 300 to 800 units the assessment of the penalties are provided
and disqualifying of “suspension or by the “general part” of the Criminal Code in
revocation of authorisations, licences or Articles 132 and 133. The first legal provision
concessions functional to the commission states that the application of penalties shall be
of the crime”; at the judge’s discretion, within the limits (mini-
• for the crime of misconduct by a public mum and maximum) established by the law for
official pursuant to Article 323 of the Criminal each crime; the second one specifies the prin-
Code: ciples to be applied by the judge in the exercise
(a) individuals: imprisonment from one to of their discretionary power (eg, the judge has to
four years; or take into account the seriousness of the offence
(b) legal entities: fine of up to 200 units and the individual’s attitude to the crime). Sanc-
(when the act affects EU financial inter- tions are increased in the event of a repeat of the
ests); crime, in accordance with Article 99 of the ICC.
• for the crime of influence-peddling pursuant
to Article 346-bis of the Criminal Code: Articles 11, 14 and 20 of Legislative Decree No
(a) individuals: imprisonment from one to 231/2001 state similar principles for the admin-
four years and six months; or istrative liability of legal entities.
(b) legal entities: fine of up to 200 units;
• for the crime of keeping inaccurate corporate
books and records pursuant to Article 2621 of 6. Compliance and Disclosure
the Civil Code:
(a) individuals: imprisonment from one to 6.1 National Legislation and Duties to
five years; or Prevent Corruption
(b) legal entities: fine from 200 to 400 units; Legislative Decree No 231/01 states an autono-
• for the crime of keeping inaccurate corporate mous administrative liability of legal entities, in
books and records in listed companies pursu- the event that one of the crimes listed in the
ant to Article 2622 of the Civil Code: Decree (including bribery and corruption offenc-
(a) individuals: imprisonment from three to es) is perpetrated in the interest or to the benefit
196 CHAMBERS.COM
of the company by persons who have represent- Indeed, as highlighted in 3.3 Corporate Liabil-
ative, administrative or management functions ity, the company has a duty to prevent bribery
or by persons under the direction or supervision as an offence (as well as all the other crimes
of one of these persons. listed in Legislative Decree No 231/2001) and, in
the event of failure of that obligation, an autono-
All such provisions are enforced by the Criminal mous liability might arise for not having adopted
Court (following an initiative put in place by the organisational models capable of preventing the
prosecutor), which has the duty to assess – usu- crimes listed in the Decree from being commit-
ally in the same proceedings – both individual ted.
and corporate liabilities and, as a consequence,
issue judgments of acquittal or conviction. Other essential tools for the implementation of
the model – as usually stated by the courts – are
In order to avoid liability in the event that a crime disclosure of the content of the model and staff
has been committed in the interest or to the ben- training:
efit of the company, according to Articles 6 and
7 of Legislative Decree No 231/2001, entities • communication is usually reserved to HR
may adopt the so-called organisational models functions and is necessary in order to ensure
in order to prevent the crimes listed in the Decree employees are completely aware of the
from being committed. organisational model and the Code of Ethics;
and
According to Legislative Decree No 231/2001, • training is crucial in order to comply with
the model must be considered “effective”; this the requirement of Article 6 of the Decree
means that, according to Article 6 paragraph 2 231/2001, according to which, in order to be
of the Decree, the model must: able to determine an “exonerating effect” in
favour of the company, the model must be
• identify the activities in which the crimes “effectively implemented”.
listed in the Decree could be committed;
• provide specific protocols designed to assist It should be noted that, for public and private
the company in formulating and implementing entities subject to Italian law, the organisational
company decisions, in relation to the crimes model may be complemented by the ISO 37001
to be prevented; “Anti-Bribery Management Systems”, which rep-
• identify procedures for managing the finan- resents the first international standard designed
cial resources needed to prevent crimes from to prevent, detect and address bribery involv-
being committed; ing the company, its personnel and its business
• provide obligations of disclosure to the super- partners.
visory board; and
• provide a suitable disciplinary system. The ISO 37001 standard is therefore designed to
help legal entities to implement and maintain a
The adoption of the model is not mandatory for proactive anti-bribery management system, by
the company but is a necessary condition to establishing procedures, policies and controls
avail of the exonerating circumstance provided which companies are urged to implement to pre-
for by Legislative Decree No 231/2001. vent bribery or at least to respond to it promptly.
197 CHAMBERS.COM
6.2 Regulation of Lobbying Activities 6.4 Protection Afforded to Whistle-

Italian legislation does not provide for a uniform Blowers
regulation of lobbying activities; however, such Law No 179/2017 – which came into force on
activities have been subject to multiple initiatives 29 December 2017 – introduced a public and
at both national and regional level through the private system of protection for whistle-blowers
issuing of regulatory acts (eg, Toscana Region- in Italy.
al Law No 5/2002, Molise Regional Law No
24/2004, Lombardia Regional Law No 17/2016; In the Public Sector
Chambers of Deputies: Code of Conduct, 12 Starting from the public sector, according to the
April 2016 and Resolution, 26 April 2016; Min- law, a public employee who, in the interest of the
istry for Economic Development and Ministry integrity of the public administration, reports to
of Labour and Social Policy: Directive, 24 Sep- the “person responsible for preventing corruption
tember 2018; Ministry of Ecological Transition: and transparency” (pursuant to Article 1, para-
Decree No 258, 1 August 2018). graph 7, of Law No 190, 6 November 2012), or to
the National Anti-Corruption Authority (ANAC),
At the same time, it is worth mentioning that a or by complaint to the ordinary judicial author-
Draft Law (called “Discipline of interest repre- ity or the accounting authority, unlawful conduct
sentation activities”) aimed at regulating lobby- of which they have become aware due to their
ing activities was approved by the Chamber of employment relationship, cannot be sanctioned,
Deputies on 12 January 2022. demoted, dismissed, transferred, or subjected
to any other organisational measure with detri-
The most relevant innovation of the new Law mental effects, direct or indirect, on their working
would be the Register for Transparency of Inter- conditions determined by the report.
est Representatives, in which all those who
intend to carry out the activity of lobbying are Furthermore, the law guarantees protection for
obliged to be registered and keep note of the the whistle-blower by providing for two sanc-
meetings with the public decision-makers. Fur- tioning powers by ANAC:
thermore, the new legislation would provide for
specific rights, prohibitions and obligations for • a fine of up to EUR30,000 for those who
lobbyists, the violation of which may lead to the adopt retaliatory measures against the
application of administrative sanctions. whistle-blower; and/or
• a fine of up to EUR50,000 for the person
6.3 Disclosure of Violations of Anti- responsible for transparency and anti-corrup-
bribery and Anti-corruption Provisions tion who failed to examine the report received
In the Italian criminal system, there is no obliga- from the public employee.
tion for individuals (who are not public officials)
or companies to report bribery or other crimes With Resolution No 469 of 25 June 2021, the
against the public administration, of which they ANAC has approved the new guidelines on the
become aware, to the judicial authority. protection of whistle-blowers in the public sec-
tor to strengthen the protective measures for
employees who report illegal conducts.
198 CHAMBERS.COM
In Private Legal Entities The only “incentive” – actually, a sort of “protec-

From the standpoint of private legal entities, tion” for the whistle-blower – is the one provided
the law provides specific protection to whistle- by Article 3 of Law No 179/2017, which qualifies
blowers according to Decree No 231/2001 (but the complaint of the whistle-blower, if the “inter-
only for those companies which have adopted est of the integrity of the public administration”
an organisational model). is pursued by them, as a “justified cause” of dis-
closure of professional secrets. Therefore, Arti-
In greater detail, according to Article 6, para- cle 3 provides for an exonerating circumstance
graph 2-bis, of Decree No 231/2001, companies for the crimes of “disclosure and use of official
are required to provide: secrets” (Article 326 of the ICC), “disclosure of
professional secrets” (Article 622 of the ICC),
• one or more channels enabling senior manag- “disclosure of scientific and industrial secrets”
ers and subordinates to raise detailed disclo- (Article 623 of the ICC) and “breach of the duty
sures of unlawful conduct pursuant to Decree of loyalty” (Article 2105 of the Civil Code).
No 231/2001 and based on precise and
congruous facts, or breaches of the organisa- With reference to the new exonerating circum-
tional model of the company, which they wit- stance provided by Article 323-ter of the ICC in
nessed in the performance of their functions. the event of self-incrimination and effective co-
Such channels must assure confidentiality operation with the judicial authority, see 4.5 Safe
over the identity of the whistle-blower when Harbour or Amnesty Programme.
handling the disclosure;
• at least one alternative reporting channel suit- 6.6 Location of Relevant Provisions
able to assure, through IT, the confidentiality Regarding Whistle-Blowing
of the identity of the whistle-blower; Provisions regarding whistle-blowers in the pub-
• prohibition against retaliation or discrimina- lic sector are set out in Article 54-bis of Legisla-
tory acts, whether direct or indirect, towards tive Decree No 165/2001; provisions regarding
the whistle-blower for reasons, directly or the private sector are set out in Article 6 of Leg-
indirectly, connected to the disclosure; and islative Decree No 231/2001.
• within the disciplinary system adopted, sanc-
tions against those infringing the measures As mentioned in 6.4 Protection Afforded to
for the protection of the whistle-blower, as Whistle-Blowers, both decrees have been
well as those making disclosures, maliciously amended by Law No 179/2017 entitled “Provi-
or negligently, that turn out to be unfounded. sions for the protection of whistle-blowers who
report offences or irregularities which have come
Such legislation is currently being revised. See to their attention in the context of a public or
6.6 Location of Relevant Provisions Regarding private employment relationship”.
Whistle-Blowing.
As above-mentioned in 6.4 Protection Afforded
6.5 Incentives for Whistle-Blowers to Whistle-Blowers, the Whistle-Blowing disci-
No incentive is offered to whistle-blowers as a pline is currently under review and update.
consequence of reporting bribery or corruption.
199 CHAMBERS.COM
On 19 April 2021, the Italian Senate approved financing, product safety, transport safety,
Law No 53/2021 (“Legge di delegazione europea financial interests of the Union);
2019–2020”), delegating the Italian Government • broaden the scope of people who enjoy
to transpose (by 17 December 2021) the Europe- such protection, including, for example,
an Whistle-Blower Directive (EU) 2019/1937 on self-employed workers, contractors, volun-
the protection of persons who report breaches teers, non-executive directors, facilitators,
of Union law (commonly referred to as the “EU consultants, trainees, board members, former
Whistle-Blowing Directive”). Nonetheless, not- employees and job applicants, colleagues or
ing the Government’s inaction in implementing relatives of the reporting persons;
the first delegation, the Parliament renewed the • extend the protection to those who had rea-
delegation itself by means of Law No 127 of 4 sonable grounds to believe that the informa-
August 2022. The law was published in the Offi- tion on breaches reported was true at the
cial Gazette and the measure is effective as of time of reporting, irrespective of whether
10 September 2022. those breaches are substantiated;
• require that legal entities implement specific
The Italian Government will have to: internal and external reporting channels to
ensure that the whistle-blower’s identity is
• amend national legislation, in accordance kept confidential (no longer only by compa-
with the framework of the EU Whistle-Blowing nies that have adopted the Models pursuant
Directive; to Legislative Decree 231/2001 but now by all
• guarantee co-ordination with current national companies with at least 50 workers, regard-
provisions, ensuring a high level of protection less of the nature of their activity);
to whistle-blowers; and • designate the authorities competent to
• introduce or keep provisions more favour- receive, give feedback and follow up on
able to the rights of whistle-blowers in order reports;
to ensure the highest level of protection for • prohibit all forms of retaliation against whistle-
them. blowers; and
• provide for effective, proportionate and dis-
The EU Whistle-Blower Directive sets out com- suasive penalties for persons that hinder
mon minimum standards across EU member reporting, retaliate against whistle-blowers,
states for the protection of persons who report or otherwise breach the duties outlined in the
information about threats or harm to the public EU Whistle-Blowing Directive.
interest obtained in the context of their work-
related activities.
7. Enforcement
Most importantly, it provides that the member
states must: 7.1 Enforcement of Anti-bribery and Anti-
corruption Laws
• ensure EU-wide protection for those who See 7.3 Process of Application for Documen-
report breaches of EU legislation in some tation.
specific fields (eg, public procurement, finan-
cial services, money laundering, and terrorist
200 CHAMBERS.COM
7.2 Enforcement Body and points out the potential initiatives to be

See 7.3 Process of Application for Documen- carried out to mitigate the risk);
tation. • inspections by requesting information, acts
and documents, and the execution of the
7.3 Process of Application for initiatives required by the National Anti-Cor-
Documentation ruption Plan;
As mentioned previously, in the Italian jurisdic- • supervision of public contracts and public
tion, the main anti-bribery and anti-corruption tenders;
provisions are included in the Criminal Code, • reporting to the Public Prosecutor’s Office in
which describes conduct that may trigger the the event of crimes or to the Court of Auditors
relevant crimes and provides for the correlative in the event of detriment to the Treasury;
sanctions. • regulation by issuing guidelines (also having a
binding value);
At the same time, Legislative Decree No • management of the national database of pub-
231/2001 establishes an autonomous adminis- lic contracts, digital record of public contracts
trative liability for legal entities, in the event that and national register of evaluation commis-
one of the crimes listed in the Decree (including sion members;
bribery and corruption offences) is perpetrated • imposition of disqualifying and pecuniary
in the interest or to the advantage of a company. sanctions in the event of failure, without
justified reason, to provide the informa-
All such provisions are enforced by the Criminal tion requested by the ANAC or contracting
Court (following an initiative put in place by the authorities, or in the event of providing false
prosecutor), which has a duty to assess indi- information or documents;
vidual and corporate liabilities and, as a conse- • incentive reporting through a whistle-blowing
quence, deliver judgments of acquittal or con- channel and imposition of pecuniary sanc-
viction. tions against:
(a) those who take revengeful initiatives
However, Law No 190/2012 established the against the reporters; and
National Anti-Corruption Authority (ANAC), (b) Corruption Prevention and Transparency
which is an administrative authority aimed at Officials who fail to assess the reports
preventing corruption in public administrations. received; and
The ANAC has a broad range of powers (listed • in the event of prosecution of any of the
also under the ANAC in Legislative Decree No crimes under Articles 317, 318, 319, 319-
90/2014 and No 50/2016), which may be sum- bis, 319-ter, 319-quater, 320, 322, 322-bis,
marised as follows: 346-bis, 353 and 353-bis of the ICC or in the
event of potential unlawful conduct referable
• analysis of the causes that facilitate cor- to a successful tenderer, the ANAC will inform
ruption, identifying prevention initiatives (for the Prosecutor’s Office and propose to the
this purpose the authority issues the annual Prefect to:
National Anti-Corruption Plan, which assess- (a) order the replacement of the persons
es the risk of corruption related to the office involved in the investigation in corporate
bodies and, if the company fails to com-
201 CHAMBERS.COM
ply, impose extraordinary and temporary • money laundering involving property derived
management of the company with specif- from one of the above-listed offences; and
ic reference to the execution of the public • incitement, aiding and abetting, or attempted
contract related to the potential unlawful commission of the above-listed offences.
conduct; or
(b) impose extraordinary and temporary 7.4 Discretion for Mitigation
management of the company with specif- With reference to mitigation powers, it is impor-
ic reference to the execution of the public tant to highlight that they concern two different
contract related to the potential unlawful fields: administrative law and criminal law.
conduct.
From the administrative perspective, it is worth
On 1 June 2021, the European Public Prosecu- mentioning the ANAC Resolution No 949/2017,
tor’s Office (commonly referred to as EPPO), which introduced the possibility of extinguishing
started its investigatory and prosecutorial tasks. the administrative pecuniary sanctions issued
The EPPO is an independent and decentralised by the ANAC, in the event that no disqualifying
prosecution office of the European Union, with sanctions are applicable, by means of the pay-
the competence to investigate, prosecute and ment of a reduced fine.
bring to judgment crimes against the EU budget,
such as fraud and corruption. Payment of the fine is due within 60 days from the
notification of the violation, at a rate of EUR500
Pursuant to EU Regulation No 2017/1939 and to in the case of failure to provide the information
EU Directive No 2017/1371 on the fight against requested and EUR1,000 in the case of provid-
fraud to the Union’s financial interests by means ing false information.
of criminal law (the so-called PIF Directive), which
sets forth the minimum provisions that must be However, regarding potential mitigation powers
adopted and transposed into national law by in the criminal field, the Criminal Code and the
the participating member states, the EPPO is Criminal Procedure Code provide for three differ-
empowered to investigate and prosecute the ent mitigation measures which may be applied
following offences against EU financial interests: by the Criminal Courts to reduce the sanctions
described in 5.1 Penalties on Conviction.
• fraud relating to EU expenditures and rev-
enues; Plea Bargain Proceedings
• cross-border value-added tax (VAT) fraud According to Articles 444 and following of the
involving total damages of at least EUR10 Criminal Procedure Code, individuals may settle
million; the charge through a plea-bargain agreement,
• passive and active corruption (covering both with the prosecutor setting out the pecuniary
requesting/receiving bribes by a public official sanctions (fines) and the duration of imprison-
and offering/giving bribes to a public official) ment.
that damages, or is likely to damage, the EU’s
financial interests; The main positive outcomes of plea bargain pro-
• misappropriation of EU funds or assets by a ceedings are as follows:
public official;
202 CHAMBERS.COM
• the sanctions agreed with the prosecutor are of the accessory penalties provided for by Arti-
reduced by a maximum of one third; cle 317-bis of the ICC. Should the court deem it
• if the judgment does not exceed two years mandatory to apply these accessory penalties,
of imprisonment (or two years of imprison- it shall reject the plea-bargain request.
ment combined with a financial penalty), the
judgment itself does not entail the cost of the Finally, it is important to highlight that, pursuant
proceedings or the application of ancillary to Article 63 of Legislative Decree No 231/2001,
penalties and security measures, except for administrative liability may also be settled
confiscation in cases set forth by Article 240 through a plea-bargain agreement. Indeed, the
of the ICC; and company is entitled to settle its potential admin-
• if the judgment does not exceed two years istrative liability with an agreement on pecuniary
of imprisonment (or two years of imprison- sanctions and on the duration of disqualifying
ment combined with a financial penalty), the measures (if applicable).
offence shall be extinguished if, within five
years (if the judgment concerns a crime) or Two Special Mitigating Circumstances Set
two years (if the judgment concerns a mis- Forth by Article 323-bis of the ICC
demeanour), the accused does not commit a The special mitigating circumstance under the
crime or misdemeanour of the same kind. first paragraph is met when the offences under
Articles 314, 316, 316-bis, 316-ter, 317, 318,
Note that, as set forth by Article 444 paragraph 319, 319-quater, 320, 322, 322-bis and 323 of
1-ter of the Criminal Procedure Code, in the the ICC are particularly slight. In such an event
event of prosecution of any of the crimes set the sanction is reduced by up to one third.
forth in Articles 314, 317, 318, 319, 319-ter,
319-quater and 322-bis of the ICC, the request In greater detail, such a mitigating circumstance
for plea-bargain proceedings is subject to the occurs when the whole offence is barely offen-
full restitution of the price or the profit arising sive and, therefore, not very serious, with refer-
from the offence. ence to the conduct carried out, the amount of
economic damage or profit attained, the subjec-
The court assesses whether the latter condition tive attitude of the perpetrator and the event (see
is met and, in general terms, whether the plea- latest Court of Cassation, Section VI, 23 May
bargain agreement complies with the law. If the 2019, No 30178). Therefore, the application of
evaluation is positive, the court delivers the plea- such a mitigating circumstance cannot be deter-
bargain sentence. mined by the mere slightness of the advantage
gained by the perpetrator.
Furthermore, Law No 3/2019 added paragraph
No 3-bis to Article 444 of the Criminal Procedure The second mitigating circumstance has been
Code, which states that, in the event of pros- introduced by Law No 69/2015 and occurs if the
ecution for any of the crimes provided for by perpetrator made effective efforts to:
Articles 314 paragraph 1, 317, 318, 319, 319-ter,
319-quater paragraph 1, 320, 321, 322, 322-bis • prevent any further consequences of the
and 346-bis of the ICC, the plea-bargain request criminal activity;
may be subject to the exclusion or suspension
203 CHAMBERS.COM
• provide evidence of criminal offences and • the perpetrator discloses the crime before
identify other perpetrators; or being informed that they are under investiga-
• allow the seizure of the profits. tion and within four months of the offence
being perpetrated.
In accordance with Article 25, paragraph 5-bis,
Legislative Decree No 231/2001, the same miti- Furthermore, the perpetrator is required to make
gating measure is applicable to the benefit of the available the benefit received or, where this is
legal entity which meets all the above-mentioned not possible, make available a sum of money of
conditions and adopts an organisational model equivalent value, or provide useful information to
suitable to prevent crimes of the same type. identify the beneficial owner of the advantage.
This initiative must also be carried out within four
This circumstance (which is applicable only with months of perpetration of the crime.
reference to the offences under Articles 318, 319,
319-ter, 319-quater, 320, 322, 322-bis and 323 The non-punishable clause is not applicable if
of the ICC) is a kind of active repentance post the self-incrimination is aimed at perpetrating
delictum and determines a reduction of from one the crime reported or at uncovering the agent
third to two thirds of the penalties. who has acted in breach of the law.
It is important to point out that, in accordance Exonerating Circumstance for Legal Entities
with the case law referred to, similar legal pro- Article 17 of Legislative Decree No 231/2001
visions (see Court of Cassation, Section IV, 14 states that disqualifying sanctions are not appli-
April 2016, No 32520) state that any such miti- cable if, after the unlawful behaviour but before
gating circumstance cannot be granted in the the beginning of the trial, the company is able to
case of reticence, even if only partial, on the part meet three requirements:
of the perpetrator, as collaboration is required to
be full and effective. • full compensation for damage and the
removal of any detrimental or dangerous con-
Non-punishable Clause Set Forth by Article sequence of the crime;
323-ter of the ICC • removal of the organisational inefficiencies
Law No 3/2019 introduced a special non-punish- that determined the crime through the adop-
able clause in the event of self-incrimination and tion and implementation of an organisational
effective co-operation with the judicial authority. model pursuant to Legislative Decree No
231/2001; and
In greater detail, this clause requires that: • making available the “profit” arising from the
crime for it to be confiscated.
• one of the offences pursuant to Articles 318,
319, 319-ter, 319-quater, 320, 321, 322-bis, 7.5 Jurisdictional Reach of the Body/
353, 353-bis and 356 of the ICC is perpe- Bodies
trated; See 7.4 Discretion for Mitigation.
• the author voluntarily reports the crime to the
authority, provides evidence of the crime and
helps to identify the other perpetrators; and
204 CHAMBERS.COM
7.6 Recent Landmark Investigations or spread of COVID-19, addressing, in particu-

Decisions involving Bribery or Corruption lar, the issue of the conditions for establishing
In recent Italian judicial news, there are many the lawfulness or unlawfulness of the so-called
cases of corruption which could be considered “onerous mediation”. The Court held that, in the
as landmarks in case law. absence of a legal regulation of the activity of
lobbying groups, the unlawfulness of the media-
On 17 March 2021, the Milan Criminal Court tion can only be derived from the purpose of the
acquitted two important energy groups, the chief influence, which must consist in the commis-
executive and managers of USD1.1 billion cor- sion of a criminal offence capable of producing
ruption charges related to the 2011 acquisition advantages for the principal.
of OPL-245, a Nigerian offshore oil-prospecting
licence. Italian prosecutors argued that parts of It is also worth mentioning that the Criminal
the purchase price were bribes that landed in the Court of Cassation has recently had the oppor-
pockets of middlemen and politicians, includ- tunity to examine some issues related to whistle-
ing the Nigerian former oil minister. The Criminal blowing. In greater detail, two different principles
Court acquitted the defendants as there was no are regularly affirmed by the case law:
case to answer because there was no evidence
that the money was channelled to politicians and • in the event that an employee carries out
intermediaries. Italian prosecutors and the Nige- investigative activity aimed at filing a whistle-
rian State appealed against the acquittal. In July blowing complaint and this activity – breach-
2022, the Public Prosecutor’s Office at the Court ing the law – could trigger a crime, this
of Appeal of Milan revoked its appeal against conduct cannot be justified by the rules
the acquittal judgment, which therefore became protecting the whistle-blower (30 November
legally binding. 2017, Law No 179); and
• confidentiality over the identity of the whistle-
Another recent and important case – currently blower is for disciplinary purposes only, but in
pending at the Court of Milan – is the so-called the criminal field it cannot be guaranteed in a
Ruby-ter criminal proceeding against the for- case where the report becomes an accusa-
mer Prime Minister, Mr Silvio Berlusconi, and tory statement and the identification of the
other defendants charged of bribery in judicial whistle-blower is absolutely essential for the
proceedings, pursuant to Article 319-ter of the defendant’s defence.
Criminal Code, for having paid money and oth-
er benefits with the aim of inducing some wit- 7.7 Level of Sanctions Imposed
nesses to give false testimony in other criminal See 7.6 Recent Landmark Investigations or
proceedings. Decisions Involving Bribery or Corruption.
With regard to the crime of “trading in influence”,

pursuant to Article 346-bis of the Criminal Code,
in January 2022 the Court of Cassation dealt
with a case involving the purchase and sale
of Chinese surgical masks in the first phase of
the pandemic emergency due to the worldwide
205 CHAMBERS.COM
8. Review corruption of parliamentary members, judges

and public prosecutors. On this issue, the report
8.1 Assessment of the Applicable concluded that Italy has implemented satisfac-
Enforced Legislation torily four of seven pending recommendations
Italian legislation is regularly monitored and peri- contained in the previous round’s evaluation
odically assessed both by National Authorities report [(a) introduction of the code of conduct
(such as the Ministry of Justice and the Supreme in the Internal Rules of the Chamber of Depu-
Court) and by bodies of several International ties and the Senate of the Republic; (b) limitation
Organisations. The last reports on bribery and of subsidies, gifts, hospitality, favours and other
corruption in Italy have been provided by the benefits for Members of Parliament; (c) restric-
OECD and by the GRECO, as well as by the tions on the prevention of conflicts of interest
National Anti-Corruption Authority (ANAC). to be applied to former Members of Parliament;
(d) the introduction by law of the incompatibility
OECD between the simultaneous exercise of Judiciary
On 18 October 2022, the OECD (Organisation for office and of member of a local authority].
Economic Co-operation and Development) pub-
lished its Phase 4 Report – Italy, which assesses In general terms, the update recognised the
Italy’s implementation of the OECD Convention effectiveness of the initiatives following the
on Combating Bribery of Foreign Public Officials recommendations concerning the status of
in International Business Transactions (Paris, magistrates, while a similar result has yet to be
1997). The report shows that Italy has consid- achieved regarding Members of Parliament, due
erably strengthened its regulatory system for to the persistent absence of codes of conduct
combating this type of corruption, by length- for Chambers.
ening the statute of limitations of the offence,
increasing imprisonment and disqualification ANAC Report
penalties, and introducing a protection system In the annual report published in June 2022,
for whistle-blowers. It has also made consider- the Italian Anti-corruption Authority (ANAC)
able investments in the digitisation and moderni- assessed the current enforcement law on brib-
sation of the judicial system, extremely useful in ery and corruption-related crimes, highlighting
the fight against bribery. According to the report, its strengths and areas for improvement.
new challenges for Italy will concern the issues
of the liability of entities, greater protection for The report stated that the effects of the COV-
whistle-blowers, the extension of the application ID-19 pandemic and the recent events in East-
of the confiscation of the profit of the crime and ern Europe have forced institutions to deploy
disqualification penalties, as well as in raising extraordinary resources, resulting in the need to
public awareness of the phenomenon. reorganise public spending actions and identify
priorities deemed essential to meet the needs
GRECO and requirements of the community, bearing in
In the last compliance report published on 14 mind the new risks of corruption that may result.
September 2022, the GRECO focused on the In these new risk areas, an essential strategic
status of implementation of the Council of Europe point is the innovative use of information tech-
Anti-bribery Conventions in Italy, with regard to nologies in the service of the modernisation of
206 CHAMBERS.COM
public administration through digital transforma-

tion.

See 6.2 Regulation of Lobbying Activities.
207 CHAMBERS.COM
Pistochini Avvocati Studio Legale was found- judicial phase, on criminal business law issues.
ed in 2020 and has a team of ten legal profes- In light of this specialisation, Pistochini Avvo-
sionals based in Milan, Italy. The firm provides cati has been involved in many relevant cases
corporate criminal law assistance to leading concerning crimes in the areas of public admin-
Italian and international clients and law firms. istration, tax, finance, the environment and the
The firm’s lawyers have postgraduate speciali- criminal liability of legal entities under Legisla-
sations in criminal law and advise companies tive Decree No 231/2001.
and individuals on preventive steps and, in the
Authors
Alessandro Pistochini has a Andrea Gaudio joined Studio
PhD in comparative criminal law. Crippa Pistochini in 2016 and
With over 20 years’ experience was named partner of Pistochini
as a practitioner, he founded Avvocati Studio Legale in 2020.
Pistochini Avvocati Studio He has gained significant
Legale in 2020. Alessandro experience in specialised areas
assists Italian and foreign clients with issues of criminal corporate law, in particular public
relating to corporate criminal liability and he administration, environment, tax and property
has advised in many well-known white-collar crimes. Andrea also deals with all the main
crime cases. He has written extensive scientific issues concerning the administrative liability of
papers for legal journals and is a member of legal persons and holds appointments as
the Criminal Lawyers’ Association of Milan and chairman in various supervisory bodies of
the International Bar Association. leading companies pursuant to Legislative
Decree No 231/2001. He has been enrolled in
the Milan Bar Association since 2013.
208 CHAMBERS.COM
Guido Stampanoni Bassi is a Francesca Gelli graduated in

partner of Pistochini Avvocati Law with honours from Alma
Studio Legale and has Mater Studiorum – University of
experience in white-collar Bologna in 2021, defending a
crimes, liability pursuant to thesis on criminal procedure
Legislative Decree 231/2001 entitled “Autonomy and
(participating as a member of supervisory interference between criminal and personal
bodies), compliance, corporate offences and preventive proceedings: considerations on
extradition proceedings. He is founder and evidence”. During the same year, she
director of the legal journal “Giurisprudenza successfully completed an internship at the
Penale” and author and editor of several books Committee on Social Affairs, Health and
and scientific publications, including a Sustainable Development of the Parliamentary
Commentary on criminal liability under Assembly of the Council of Europe in
Legislative Decree 231/2001. Guido lectures Strasbourg. In February 2022, Francesca
master’s and specialisations courses and is joined Pistochini Avvocati Studio Legale as a
often invited to speak at seminars and trainee lawyer.
conferences on topics related to white-collar
crimes. He is a member of the Constitutional
Court Commission set up by the Italian
Criminal Lawyers’ Association and a member
of the Milan Bar Association.

Corso di Porta Vittoria no 10
20122
Milan
Italy
Tel: +39 02 3037081

Fax: +39 02 30370899
Email: studio@pistochinilex.it
Web: www.pistochiniavvocati.it
209 CHAMBERS.COM
ITALY Trends and Developments

Contributed by:
Fabio Cagnola, Filippo Ferri and Silvia Martina
Cagnola & Associati Studio Legale see p.216
General Outlook operation”, carried out by the Prosecutor’s Office

Corruption is usually considered as an old die- of Milan, that literally destroyed a large part of
hard disease of Italian society, which dates Italian political parties, leading to the end of a
back to the beginning of the past century at historical phase of Italian politics. At that point
least. This is why the Italian Code of Criminal in time, the paradigm of anti-corruption changed
Law (introduced in 1930 and still in force) has forever: the execution of extensive investigative
always provided a wide and substantial regula- activities (in the form of massive wire taps and
tion of crimes against the public administration, cross-border investigations) and the striking use
and why such regulation has been subjected to (in many cases, the abuse) of pre-trial detention
a number of legislative reforms across the years. finally managed to obtain both confessions from
In recent times, the regulation of crimes against the defendants and accusations against other
the public administration has been consistently individuals that left a deep scar in the Italian legal
strengthened. framework (and in the social framework as well),
which is still far from healing. From that moment
Today, crimes such as bribery, bid-rigging and on, a fracture took place between, on the one
others are among the criminal offences punished hand, the need to properly prosecute corrup-
with the highest penalties in the field of white- tion – which, as a matter of fact, dramatically
collar crimes in Italy. Moreover, the regulation affected Italy – and the need to act in compli-
of corruption has been amended through the ance with the Rule of Law and the fundamental
extension of criminal law provisions originally right to defence.
introduced to fight organised crime (as in mafia-
type organisations). In recent times, the fight against corruption has
focused on new horizons, including:
The approach of the prosecutors’ offices has
also changed over the years. The evolution of • so-called academic corruption (ie, corruption
the prosecutors’ approach can be categorised among university professors in order to get
in terms of a constant, progressive aggression chairs, publications, etc);
towards corruption in all fields of society. In the • corruption in the pharmaceutical corporations
course of the 20th century, the fight against cor- field;
ruption was basically limited to the ambit of pub- • international corruption; and
lic administration (for instance, bribery of public • private corruption.
officials, as employees of public bodies).
In a nutshell, when we deal with Italian anti-
“Mani Pulite” corruption regulation, we deal with a constantly
At the end of the 20th century, there came a moving and changing juridical issue, with both
turning point with the so-called “hands-clean old-time roots and innovative perspectives,
210 CHAMBERS.COM
Contributed by: Fabio Cagnola, Filippo Ferri and Silvia Martina, Cagnola & Associati Studio Legale
always in the framework of a severe and rigid After the 1995 PFI Convention (on the protection
court practice. of communities’ financial interests), in 2000 the
Italian legislature introduced Section 316-ter into
Changes in Legislation the ICC: the crime of misappropriation of funds
Corruption and bribery crimes are regulated in to the detriment of the state, or other public enti-
the Second Title of the Second Book of the Ital- ties, or the EU.
ian Criminal Code (ICC). Such regulation is made
up of two parts: Later on, in 2012 a new law (Law 190/2012) intro-
duced further modifications, such as increasing
• crimes of public officials against the public the period of detention set out for crimes of
administration; and bribery. This law also introduced a new provi-
• crimes of private citizens against the public sion: Section 319-quater, wrongful inducement
administration. to give or promise any utility, and the crime of
unlawful illicit influences. Furthermore, this law
This regulation went through several changes amended Section 2635 of the ICC, now named
over the years from 1990, 60 years after the pub- commercial (private) bribery, which can be both
lication of the ICC in the 1930 Kingdom of Italy active and passive.
Official Gazette of Laws and Decrees.
The reform at hand also introduced amendments
The aim of the said changes was to adjust the to Legislative Decree 231/2001, the law that
criminal provisions to fit the new social and eco- defines the liability of a legal entity for a crime
nomic trends and, therefore, to effectively pun- perpetrated by an individual within the company.
ish those behaviours which had a large impact
on the state, by ensuring the correct functioning Section 318 of the ICC was also modified by
and fairness of the Italian public administration providing that, in this form of bribery (so-called
compared to international and European public proper bribery), public officials do not have to
administrations. perform a specific act related to their office – the
crime will also be considered committed when
The first relevant amendment came into force public officials make themselves available to pri-
with Law 86/1990. This law introduced new pro- vate interests in exchange for money or other
visions into the ICC: utilities without the perpetration of a specific act.
• Section 316-bis (crime of embezzlement After the 2012 reform, another important change
against the Italian state); and occurred, with Law No 69/2015, which greatly
• Section 319-ter (crime of bribery in judicial increased the time of custodial sentence of the
actions). criminal provisions for bribery and corruption set
out in the ICC. For instance, detention provided
Amendments in several sections, already in for the crime of misappropriation, committed by
force in the ambit of crimes against the public public officials, of money or other goods avail-
administration, were also introduced. able to them due to their office or service (Sec-
tion 314 of the ICC), was increased from four
211 CHAMBERS.COM
to ten years and six months (while the previous allegedly identified a systematic conditioning
penalty had ranged from four to ten years). of procedures for the assignment of the titles
of researcher and full and associate professor
In 2019, the legislature approved Law No 3/2019, within the Faculty of Medicine and Surgery of
which introduced new paragraphs and amended the University of Milan. According to the pros-
others in the existing criminal provisions. For ecution, collusion and other methods of disrup-
instance, the crime of corruption for the exer- tion that systematically polluted the regularity of
cise of a function, pursuant to Section 318 of the selection procedures emerged, substituting cli-
ICC, is now punished with a custodial sentence entelist logic for the meritocratic method and the
ranging from three to eight years (instead of the principle of impartiality that should guide public
previous penalty, which had ranged from one to administration.
six years of imprisonment).
Several types of conduct were indicated by
It is worth noting that, on 28 September 2022, the investigators: “in some cases, there is the
the Italian National Anti-Corruption Authority appointment of compliant colleagues who are
issued the approval of guidelines regulating the aware ex ante that they should favour a particular
“implementation – also in progressive stages – of candidate,” in other cases “the evaluation crite-
the qualification system of contracting stations ria are tailored to the profile of the person who is
and central purchasing bodies to be placed at intended to benefit.” And again, “on other occa-
the basis of the new qualification system that will sions, the determination of the evaluation criteria
be made operational when the reform of public and even the awarding of scores are entrusted
contract regulations comes into force.” to the same candidate whom it is intended to
favour.” In other situations, “the most deserv-
Relevant Developments in Court Law ing candidates are discouraged, inviting them
There have been no particular developments not to participate or to withdraw the submitted
in Court law during 2022 relating to corruption. application, with veiled threats or promises of
On the one hand, some criminal proceedings future benefits.” And there would be cases in
are still subject to judicial evaluation (as in the which “other candidates were also asked to par-
well-known ATM case before the Court of Milan, ticipate, with the backroom agreement that they
concerning Milan’s municipal public transport would withdraw only at the final stage of the pro-
company). On the other hand, other inquiries cess, all in order to simulate strong competition
are stuck in procedural clashes (the “Academic and discourage other undesirable candidates.”
corruption” case, after three different changes
of venue, having eventually been moved before International Co-operation and the EPPO
the Criminal Court of Venice). International co-operation and corruption have
become closely linked since a new independ-
That said, a new case of “Academic corruption” ent EU body came into being in June 2021: the
erupted at the Milan Prosecutor’s Office, involv- European Public Prosecutor’s Office (EPPO),
ing famous professors at various universities. based in Luxembourg. Currently, 22 EU member
Dozens of searches were triggered through- states participate in the enhanced co-operation
out Italy in what appears to be a new scan- (excepting Hungary, Poland, Sweden, Denmark
dal affecting the university world. Prosecutors and Ireland).
212 CHAMBERS.COM
As outlined in Council Regulation 2017/1939 tool to concretely fight corruption by investigat-

of 12 October 2017 implementing enhanced ing, prosecuting and enforcing this kind of crime
co-operation on the establishment of the Euro- whenever EU financial interests are involved. The
pean Public Prosecutor’s Office, the EPPO has first results of this approach are already visible:
the competence to investigate, prosecute and in July 2021, the Italian press published news of
bring to judgment crimes against the EU budget: the commencement of an investigation against
“the EPPO shall be responsible for investigat- four Croatian citizens regarding criminal offenc-
ing, prosecuting and bringing to judgment the es of active and passive corruption and abuse of
perpetrators of, and accomplices to, criminal functions. This investigation started after a crimi-
offences affecting the financial interests of the nal report had been filed by the Croatian National
Union which are provided for in Directive (EU) Police Office for the Suppression of Corruption
2017/1371 and determined by this Regulation. and Organised Crime. According to the informa-
In that respect the EPPO shall undertake inves- tion available, the mayor of a Croatian city had
tigations, and carry out acts of prosecution and received bribes from a company manager in
exercise the functions of prosecutor in the com- exchange for tampering with documentation to
petent courts of the Member States, until the procure the assignment of a project co-financed
case has been finally disposed of”. As outlined by EU funds.
in its “mission and tasks”, some severe crimes
fall within the area of competence of the EPPO: The EPPO, therefore, has the significant objec-
tive of managing the prosecution of crimes
• cross-border VAT fraud involving total dam- – such as corruption – that affect the financial
ages of at least EUR10million; interest of the EU, and to make concrete efforts
• other types of fraud affecting the EU’s finan- to guarantee international co-operation.
cial interests;
• corruption that damages, or is likely to dam- Nowadays, indeed, co-operation means avoid-
age, the EU’s financial interests; ing duplication of investigation and prosecution,
• misappropriation of EU funds or assets by a and should start from the relationship between
public official; and the EPPO and the Italian authorities. As stated
• money laundering and organised crime, as by the Council Regulation, in compliance with
well as other offences inextricably linked to the principle of sincere co-operation, “both the
one of the previous categories. EPPO and the competent national authorities
should support and inform each other with the
Italy has implemented the Council Regulation aim of efficiently combatting the crimes falling
with a recent legislative development, Legisla- under the competence of the EPPO”. Sharing
tive Decree 9/2021, defining the general rules the information available over the course of an
in order to adapt national legislation to conform investigation is key in order to effectively achieve
with the European legislation. investigative results.
As said above, corruption and international co- Moreover, effective co-operation has to be safe-
operation are strictly linked given the effects that guarded between the EPPO and pre-existing
this crime could also have also outside national international institutions. For instance, the Coun-
borders. The EPPO aims to become an effective cil Regulation provides that “the EPPO should be
213 CHAMBERS.COM
established from Eurojust”, with the aim mutual academic activities; for instance, agreements
co-operation. All the relevant EU bodies – includ- between professors aimed at assigning full-
ing Eurojust, Europol and OLAF – “should active- time professor roles, agreements aimed at
ly support the investigations and prosecutions of supporting another group within the univer-
the EPPO, as well as cooperate with it, from the sity, etc; and
moment a suspected offence is reported to the • the currency of corruption is no longer
EPPO until the moment it determines whether represented merely by money but by other
to prosecute or otherwise dispose of the case”. commodities; eg, publications in university
An effective co-operation could in fact avoid journals, participation in conferences and
duplications of investigations and prosecution, symposiums, and career progression of
and the violation of the ne bis in idem principle researchers and PhD students.
– thus avoiding not only a waste of EU/public
funds but also detriment to the defendant under The lesson to be learnt here is that Prosecutor’s
investigation. Offices should start to identify – and therefore
prevent – new and unexpected forms of corrup-
Trends for the Future tion that may occur in fields of public life never
A first trend for the future is the tendency of the previously touched by this kind of criminal activ-
Italian Prosecution Services to identify corruption ity. Such a perspective leads to strong consid-
(more precisely, bribery crimes) in those fields of eration of the issue of prevention.
social life that historically – at least according to
common perception – had not been affected by A second trend for the future is represented
such criminal activities. by the tendency of the Italian system to move
towards a “negotiated justice” system, at least
Particular attention should be paid to “aca- with reference to the criminal liability of legal
demic corruption”, a neologism that describes entities (Law No 231/2001). Currently, the Ital-
new forms of bribery implemented in the world ian legal framework does not set out any kind
of universities. Such new category of corruption of self-reporting or non-prosecution, or deferred
has been brought to judgment in three important prosecution, agreement. The great obstacle
criminal investigations, still ongoing but at differ- is represented by the fact that prosecution,
ent degrees of trial by, respectively, Florence’s according to the Italian Constitution, is manda-
Prosecution Service, Catania’s Prosecution Ser- tory. This is possibly a very different scenario
vice and Milan’s Prosecution Service. from the one present, for instance, in the USA
or the UK: in Italy, a company cannot perform
The innovative characteristics of this form of cor- an internal anti-corruption investigation to avoid
ruption are, in fact, that: prosecution, but only following prosecution with
the purpose of mitigating the potential damage
• academics are considered public officials arising from criminal proceedings.
when they act for particular bodies; for
instance, as part of commissions for the This topic has started a wide debate; more spe-
appointment of professors; cifically, it has been questioned whether the
• agreements drafted as a result of corrup- criminal liability of legal entities – as regulated
tion are considered as final if drafted during by Law No 231/2001 – should be subjected to
214 CHAMBERS.COM
the same “mandatory rule” of prosecution as that they can be issued on the mere assumption
are private individuals, or if a sort of discretion- of the apparent “social danger of the defendant”.
al power could be somehow attributed to the This is a crucial point, since such pre-condition
Public Prosecutor. One thing is sure: the Italian leaves a great discretional power to the judge in
criminal law system as a whole is, in fact, going deciding whether the prevention measure should
in the direction mentioned above, by introduc- be issued or not.
ing special causes for non-punishment, mitigat-
ing circumstances, conditions to have access Through the years, prevention measures have
to special proceedings, etc, all related to forms been constantly and progressively applied and
of self-reporting, compensation of damages or amended by the Italian legislature. Law No
remedial initiatives. 161/2017, for instance, carried out a significant
reform of the so-called anti-mafia code; this
A third trend for the future should be the applica- reform extended the possibility to apply personal
tion of prevention measures for matters of cor- and patrimonial prevention measures against
ruption. In the Italian legal framework, talking people under investigation in relation to crimes
about the “recovery of criminal property” does against the public administration such as bribery
not mean only talking about traditional and ordi- and corruption in public tenders.
nary recovery measures, such as freezing and
confiscation, since the Italian legal system has The Italian legal doctrine has hardly criticised
introduced the additional category of prevention this reform: with the extension of prevention
measures. measures for crimes against the public admin-
istration, the Italian legislature has expressed the
In a nutshell, prevention measures are extraor- concept that the mafia and corruption are the
dinary precautionary measures. Patrimonial same thing and, consequently, they should be
prevention measures, such as the anticipated treated in the same way legally.
seizure and confiscation of assets, were intro-
duced by the Italian Parliament as anti-mafia
legal instruments in 1982. The particular charac-
teristic of these prevention measures is the fact
215 CHAMBERS.COM
Cagnola & Associati Studio Legale was estab- ed in some of the most relevant national and
lished in July 2016 in Milan and provides legal international trials in these fields. The firm is
assistance throughout Italy. The firm specialises composed of 15 staff, among whom are law-
in corporate criminal law, tax criminal law, en- yers who have gained considerable experience
vironmental criminal law, banking and financial providing advisory services as well as legal de-
criminal law, corporate and bankruptcy criminal fence to both individuals and corporate interna-
law, anti-corruption and anti-money laundering, tional clients in criminal proceedings.
and its expert team of lawyers has participat-
Authors
Fabio Cagnola has been Filippo Ferri has focused his
practising for more than 30 practice on white-collar crime
years in the field of white-collar since becoming a lawyer and
crime and is the founder of became a partner of Cagnola &
Cagnola & Associati. He Associati in 2017. He provides
provides legal assistance to legal assistance to individuals
major multinationals throughout Italy and has and multinational companies throughout Italy
acted in the most prominent criminal cases in and has worked on prominent criminal cases in
the white-collar crime area. He represents both the white-collar crime area, as well as in
individuals and corporations in criminal trials cross-border investigations. He has extensive
before the Italian courts. Among his clients are experience in corporate criminal law, both in
multinational corporations operating in diverse litigation and advisory activities. He also
sectors as well as major credit institutions, regularly participates, either as speaker or as
both foreign and domestic. He was co-chair of chairman, in Italian and international seminars
the IBA Business Crime Committee (2015–16) and conferences focused on topics relevant to
and regularly participates, either as a speaker white-collar crime. Since 2017, he has had the
or as a chairman, in Italian and international privilege to attend, as speaker, the Cambridge
seminars and conferences focused on topics International Symposium on Economic Crime.
relevant to white-collar crime.
216 CHAMBERS.COM
Silvia Martina is a criminal

lawyer and mid-associate at
Cagnola & Associati, and has
been at the firm since it was
founded in 2016. She is a
consultant in advanced criminal
procedural law at Universita’ degli Studi in
Milan. Silvia is particularly knowledgeable in
the field of administrative liability for corporate
offences, and has assisted clients in both
judicial and extrajudicial matters. She
collaborates with the Anti-Corruption
Committee of the IBA, and recently worked on
the first submission to the United Nations
Special Session of the General Assembly
against Corruption regarding how to prevent
bribery and corruption, and how to achieve
convictions. She is a member of the Milan Bar
Association.
Cagnola & Associati Studio Legale

Via Conservatorio, 15
20122
Milan
Italy
Tel: +39 02 3598 8008

Fax: +39 02 4070 1597
Email: info@cagnolaeassociati.it
Web: www.cagnolaeassociati.it
217 CHAMBERS.COM
NIGERIA
Law and Practice Benin Nigeria
Contributed by: Abuja
Frederick Festus Ntido

Threshing Fields Law see p.228 Cameroon
Contents
2.1 Bribery p.219
3. Scope p.221
5. Penalties p.222
Penalties p.222
218 CHAMBERS.COM
NIGERIA Law and Practice
Contributed by: Frederick Festus Ntido, Threshing Fields Law
1. Legal Framework for Offences derived from this legislation nevertheless have
the responsibility of administering the Acts and
1.1 International Conventions offenders are charged to the courts (principally
Nigeria signed the United Nations Convention by the EFCC), which will decide the fate of indi-
Against Corruption on 9 December 2003 and viduals or corporate organisations.
ratified it on 24 October 2004. It also adopted
the African Union Convention on Preventing and 1.4 Recent Key Amendments to National
Combating Corruption on 12 December 2003 Legislation
and ratified it on 26 September 2006. There have not been any key amendments in
2022 to the principal legislation, namely the
1.2 National Legislation EFCC or the ICPC. However, there was an
Legislation amendment to the Money Laundering Act 2011
Nigeria has a myriad of legislation relating to which made it mandatory for money deposit
anti-corruption, anti-money laundering, anti- institutions to report to the Special Control Unit
bribery and related matters. The two principal Against Money Laundering under the EFCC any
laws, however, are the Independent Corrupt single lodgement in excess of NGN5 million in
Practices and Other Related Offences Act 2000 the case of an individual, and NGN10 million for
(ICPC) and the Economic and Financial Crimes a corporate body.
Commission Act 2004 (EFCC).
Offences 2. Classification and Constituent

All relevant offences are not laid down in a single Elements
text but are spread over different sources, such
as: 2.1 Bribery
Definition of Bribery
• the Money Laundering Act 1995; Under Nigerian legislation, bribery refers to the
• the Money Laundering (Prohibition) Act 2011; offering, giving, soliciting, or receiving of any item
• the Money Laundering (Prohibition) Act 2022; of value as a means of influencing the actions of
• the Advance Fee Fraud and Other Fraud an individual holding a public or legal duty.
Related Offences Act 1995;
• the Failed Banks (Recovery of Debts) and Specifically, the ICPC prohibits direct or indirect
Financial Malpractices in Banks Act 1994; giving/offering and receipt of bribes or gratifica-
• the Banks and Other Institutions Act 1991; tion for the purpose of influencing official acts
and related to official duties. The various instances
• the Miscellaneous Offences Act 1984. under which the bribes may be given or received
are also treated under the ICPC.
1.3 Guidelines for the Interpretation and
Enforcement of National Legislation The receipt, as well as the giving of a bribe, is
There have not been any specific guidelines an offence under relevant Nigerian legislation.
produced for the interpretation and enforce-
ment of the principal national legislation, name- Components of Bribery
ly the ICPC and the EFCC. The two agencies The components of bribery include:
219 CHAMBERS.COM
• accepting undue gratification; State-controlled companies

• giving or accepting undue gratification The above definition of a public official will apply
through an agent; to individuals working in a state-controlled com-
• fraudulently acquiring property; pany or companies.
• fraudulently receiving property;
• committing offences through the postal sys- Bribery of Foreign Officials
tem; Although the anti-corruption and anti-bribery
• offering gratification by or through agents; legislation does not specifically criminalise the
• bribing public officers; bribing of foreign officials in the same way the
• using an office or position for undue gratifica- United States of America Foreign Corrupt Prac-
tion; tices Act and the United Kingdom Bribery Act
• bribery in relation to auctions; do, the extension of the definition of a public offi-
• bribing someone to provide assistance with, cial to individuals working outside the country in
for example, contracts; and a subsidiary of a state-owned or state-controlled
• dealing with property acquired through grati- company can be considered to prohibit bribery
fication. of foreign officials.
Classification of Hospitality Expenses Bribery in Private Commercial Settings

There are no specific prohibitions regarding hos- Bribery between individuals or companies in a
pitality expenses. Nevertheless, the law covers private commercial setting is also covered by the
obtaining property or any benefit of any kind in EFCC, which criminalises such acts.
the discharge of official duties.
2.2 Influence-Peddling
Facilitating Payments There is no specific or known offence relating to
There are no rules under Nigerian law relating influence-peddling under Nigerian law, although
specifically to facilitation of payments. Neverthe- it is an act that is highly decried and deprecated.
less, any form of gift given to a public official in
the course of carrying out their duties is strictly There is also no known or specific criminalisation
prohibited by the Code of Conduct for Public of influence-peddling of foreign public officials
Officers, as contained in the 1999 Constitution. under Nigerian law, although it is neither actively
nor passively encouraged or supported.
Definition of a public official
A public official is defined under the ICPC as a 2.3 Financial Record-Keeping
person employed or engaged in any capacity In Section 435, the Nigerian Criminal Code (NCC)
in the public service of the federation, state or makes it an offence for directors of a company
local government, public corporations or private to knowingly, and with intent to defraud, allow
companies wholly or jointly floated by any gov- the keeping of inaccurate books. The offence is
ernment or its agency, including the subsidiary punishable by seven years imprisonment, upon
of any such company, whether located within conviction.
or outside Nigeria and includes judicial officers
serving in magistrate, area or customary courts In addition, Section 436 of the NCC criminalises
or tribunals. the making, circulating or publishing of any writ-
220 CHAMBERS.COM
ten statement or account which in any mate- jurisdiction, the money laundering laws have
rial particular, is to one’s knowledge false, with extraterritorial reach.
intent to deceive or defraud any member of the
company or public. On being found guilty of this Under Section 15(2) of the Money Laundering
felony, one would be liable to imprisonment for Act, the offence of money laundering has been
seven years. extended to apply to natural or legal persons
outside of Nigeria, whilst the laundering of the
2.4 Public Officials proceeds of foreign crimes is also punishable
The ICPC, the EFCC and the NCC criminalise in Nigeria.
misappropriation of public funds by a public
official, prohibit the unlawful taking of interest 3.3 Corporate Liability
by a public official and define embezzlement by Corporate Liability
a public official as an economic and financial Companies can be held liable, as the definition
crime. of “persons” under the ICPC includes natural
persons, juristic persons and any persons of a
There is, however, no express or implied prohibi- body corporate. Further, the definition of “per-
tion or criminalisation of favouritism by a pub- sons” under the Criminal Code Act includes cor-
lic official, although such practice is officially porations within the purview of criminal liability.
denounced and discouraged.
Joint Liability
2.5 Intermediaries Under sections 11, 18 and 19 of the Money Laun-
There are provisions in Nigerian law for the com- dering (Prohibition) Act, individuals and compa-
mission of the offence of corruption through nies can be held liable for the same offence.
intermediaries or agents.
Liability of Successor Companies
Specifically, by virtue of Section 7 of the Criminal There is no specific provision in the relevant leg-
Code Act, parties to a crime include accesso- islation in Nigeria dealing with anti-corruption,
ries before the fact, accessories to the fact and anti-bribery and money laundering for succes-
accessories after the fact. sor companies to be held liable for the offences
committed by an acquired or target company.
3. Scope
4. Defences and Exceptions
3.1 Limitation Period
There is presently no statute of limitation under 4.1 Defences
Nigerian law that applies to the commission of The relevant Nigerian laws relating to corruption
the above offences. and bribery do not generally provide a defence
for those found liable. Nevertheless, where pro-
3.2 Geographical Reach of Applicable ceeds from bribery and corruption have been
Legislation returned, the courts reserve the right or possess
Although Nigeria’s legislation relating to bribery inherent powers to reduce sentences.
and corruption does not have extraterritorial
221 CHAMBERS.COM
4.2 Exceptions gratification is required from them. Corporate

As stated above, there are presently no available bodies can also put procedures in place to:
defences to the identified offences and, as such,
no exceptions to a defence. • identify customers’ identities and businesses;
• monitor transactions;
4.3 De Minimis Exceptions • perform customer due diligence;
There are no de minimis exceptions for the • conduct background checks on employees;
above offences under Nigerian law, particularly and
under the NCC. • operate a continuous monitoring system.
However, under the Penal Code Act, applica-

ble in the northern part of the country, there is a 5. Penalties
recognition of the de minimis exception, which
states that an offence can be too trifle or trivial 5.1 Penalties on Conviction
for the law to be concerned with it. Offences by Individuals
The penalties upon conviction for the above
An example of this is the prosecution of a man offences for individuals are mainly fines and
by the EFCC in the northern part of the coun- imprisonment. Offences such as demanding a
try for a cybercrime fraud which fetched him bribe, fraudulent acquisition or receipt of prop-
NGN100. The court determined that the amount erty and frustrating investigations are classified
was minimal and the offender had already made as felonies and can attract penalties of three or
restitution and was asked to pay an additional more years’ imprisonment.
NGN250.
Offences by Companies
4.4 Exempt Sectors/Industries The penalties upon conviction for the above
There are presently no sectors/industries in offences for companies are mainly fines. Offenc-
Nigeria exempt from the offences relating to es such as soliciting and receiving a bribe,
anti-corruption, bribery and money laundering. fraudulent acquisition or receipt of property and
frustrating investigations can result in imprison-
4.5 Safe Harbour or Amnesty Programme ment for the officers of the companies involved
Safe Harbour/Amnesty Programme in the acts. Nevertheless, companies are usually
There are no specific provisions in the relevant required to pay a fine.
laws in Nigeria for any form of safe harbour or
amnesty programme based on self-reporting or 5.2 Guidelines Applicable to the
adequate compliance procedures or remediation Assessment of Penalties
efforts. Guidelines for Assessment of Appropriate
Penalties
Private Initiatives There are currently no guidelines for the assess-
Corporate entities can, however, formulate poli- ment of appropriate penalties.
cies which require persons to report to the rel-
evant government agencies whenever undue
222 CHAMBERS.COM
Minimum Sentences • highlighting the nature of money laundering;

Some offences have minimum and maximum • identifying money laundering “red flags” and
penalties stated, and the court usually cannot go suspicious transactions;
below the minimum or go above the maximum • setting out reporting requirements;
allowable penalties. • conducting customer due diligence;
• taking a risk-based approach to AML; and
There are also offences that have provision for • having a record-keeping and retention policy
imposition of a monetary fine and/or a term of in place.
imprisonment or a combination of both.
6.2 Regulation of Lobbying Activities
The relevant legislation allows the enforcement There is no formal national legislation for the reg-
agency – the EFCC – to ask for the offence to be ulation of lobbying activities in Nigeria, as there
compounded, so that only monetary payment is is in some other jurisdictions.
accepted in an amount not less than the maxi-
mum allowable. There is a Bill in force for an Act for the Registra-
tion of Lobbyists in Nigeria and for Matters Con-
Repeated Offences nected Thereto 2016, which has been pending
Repeated offences are often punished more in the Nigerian National Assembly since 2016.
severely by the courts.
6. Compliance and Disclosure Section 23 of the ICPC imposes a duty on both
public officers and private individuals to report
6.1 National Legislation and Duties to bribery transactions. While it imposes a duty on
Prevent Corruption a public officer to whom a bribe is offered to
Duties to Prevent Corruption report the incidence to the ICPC or the police,
The expectation of all the relevant legislation it also imposes a similar duty on private indi-
regarding corruption, bribery, money laundering viduals from whom bribery is demanded. Failure
and the enforcement agencies is that individu- to report such an incidence without reasonable
als and companies have an obligation or duty to excuse is an offence punishable with imprison-
prevent corruption by setting up a compliance ment and/or a fine.
programme.
6.4 Protection Afforded to Whistle-
Compliance programmes Blowers
The Anti-Money Laundering Act requires that the Protection Mechanisms for Whistle-Blowers
following compliance and control mechanisms Nigeria lacks a designated whistle-blower law
be established: that protects employees and citizens from retali-
ation if they report crime, corruption or public
• designation of an anti-money laundering health threats.
(AML) chief compliance officer at manage-
ment level; Furthermore, Nigerian law does not recognise
• identifying AML regulations and offences; people who make such reports as whistle-blow-
223 CHAMBERS.COM
ers. Consequently, there are no legal mecha- 6.6 Location of Relevant Provisions
nisms to protect whistle-blowers from retaliation. Regarding Whistle-Blowing
There is a whistle-blower policy in place, issued
There is no government agency that receives by the Federal Ministry of Finance. The Whistle-
and investigates reports from workplace whis- Blower Protection Bill has been before the Nige-
tle-blowers, lends support or legal advice to rian National Assembly since 2016.
whistle-blowers, or offers them protection from
retaliation and adverse consequences.
7. Enforcement
Freedom of Information Act
Part of the few provisions in Nigerian law some- 7.1 Enforcement of Anti-bribery and Anti-
what related to whistle-blowing are found in one corruption Laws
paragraph in the Freedom of Information Act The enforcement of the anti-bribery and anti-
2011. corruption laws in Nigeria is purely a criminal
process. The offences are considered criminal in
The law requires public employees to disclose nature and the system is not yet so sophisticated
information in the public interest, including relat- to allow for civil or administrative enforcement.
ed to mismanagement, gross waste of funds,
fraud, abuse of authority, and public health and 7.2 Enforcement Body
safety dangers. Enforcement Bodies
The EFCC and the ICPC are the two principal
The law includes protections for public officials bodies which have the responsibility of enforce-
and people acting on behalf of public institutions ment of anti-bribery and anti-corruption provi-
from civil or criminal proceedings if they disclose sions in both public and private sectors.
information under the law – even if the disclo-
sure would otherwise violate the Criminal Code, Their jurisdiction also extends to enforcement of
Penal Code, Official Secrets Act or another law. failure to prevent or report corruption or bribery,
The Freedom of Information Act does not apply as the case might be.
to the private sector.
Interaction Between Enforcement Bodies
6.5 Incentives for Whistle-Blowers The co-operation between EFCC and ICPC,
There are incentives for whistle-blowers in whilst in existence, is not as robust as it should
Nigeria to report bribery and corruption. These be.
incentives are mainly monetary and include the
Whistle-Blower Policy of the Federal Ministry In the first place, although the ICPC primarily has
of Finance, which entitles the whistle-blower to the responsibility of investigating corruption and
between 2,5–5% of any sum recovered due to bribery cases amongst public officials, it does
the information provided. not have the powers to prosecute offenders.
The EFCC, on the other hand, has both the pow-

ers to investigate private and public officials for
224 CHAMBERS.COM
corruption, bribery and money laundering, and officials who are found to have breached the
to prosecute them. Code of Conduct for public officials.
Enforcement Bodies Areas of Competence 7.3 Process of Application for

and Authority Documentation
The EFCC is in charge of the following: The respective legislation on anti-corruption,
anti-bribery and anti-money laundering makes
• investigating and prosecuting economic and it mandatory for the enforcement bodies to be
financial crimes (the relevant legislation sets provided with information or documentation,
out financial crimes to cover several areas once they request it.
such as bank fraud, tax evasion, capital mar-
ket fraud and futures market fraud); Failure to provide the requested information or
• acting as the nationwide co-ordinator for documentation to the enforcement bodies is
Nigeria’s anti-money laundering drive; considered an offence punishable with a fine or
• acting as the designated Nigerian Financial a term of imprisonment, or both.
Intelligence Unit; and
• implementing the Advance Fee Fraud Act, the 7.4 Discretion for Mitigation
Failed Banks Decree, the Money Laundering Mitigation by Enforcing Powers
Act and the Banks and other Financial Institu- The EFCC is the enforcement body that has the
tions Decree. legal power to also prosecute offenders, and is
empowered by the law to exercise its discretion
The ICPC has the following key functions: for mitigation in enforcing its powers.
• investigating reports of corruption – with In this regard, the EFCC can choose to com-
specific reference to government and public pound an offence that is punishable by both the
officials; payment of a monetary fine and a term of impris-
• investigating government establishments and onment, to only the payment of a monetary fine
the public’s susceptibility to corruption; and that would not exceed the maximum fine allow-
• educating and enlightening the public on cor- able for the offence.
ruption, with a view to enlisting and fostering
public support for its anti-corruption cam- Examples of mitigation
paign. The EFCC can elect to compound an offence
and request the courts to impose only a mon-
The Special Fraud Unit of the Nigerian Police etary fine and not a term of imprisonment, in the
Force case of a first-time offender or someone who
The special fraud unit and anti-fraud section of co-operated in the course of investigation.
the Nigeria police force investigates high-profile
local and international fraud cases. The EFCC can adopt a plea bargain arrange-
ment where the offender is given a lighter sen-
The Code of Conduct Bureau/Tribunal tence for return of the proceeds of corruption,
The Code of Conduct Tribunal enforces discipli- bribe or money laundering.
nary measures against government and public
225 CHAMBERS.COM
Nigeria does not have in place a system of non- • The investigation of the former governor of a
prosecution or deferred prosecution arrange- state over corrupt enrichment and fraud in the
ment for offenders. sum of NGN35 billion.
• The investigation of a former governor of a
7.5 Jurisdictional Reach of the Body/ state over corrupt enrichment in the sum of
Bodies NGN150 billion.
The jurisdictional reach of the EFCC is both local, • The investigation of the former Accountant
national and international. For instance, Nigeria’s General of the Federation over fraud and
anti-money laundering laws have extraterritorial embezzlement in excess of NGN109 billion.
reach. Section 15(2) of the Money Laundering
Act states that the offence of money laundering Landmark Decisions
has been extended to apply to natural or legal • The conviction of a former managing director
persons outside of Nigeria. of Fidelity Bank for embezzling a depositor’s
funds in excess of NGN50 billion.
7.6 Recent Landmark Investigations or • The decision by the Supreme Court upholding
Decisions involving Bribery or Corruption the interim forfeiture to the federal govern-
Landmark Investigations ment the sum of NGN6 billion belonging to a
• The investigation by EFCC of alleged collu- former First Lady of the country as constitut-
sion and corrupt practices between Nigerian ing questionable wealth.
government officials and a company known • The decision by the Federal High Court
as Process and Industries Development ordering the final forfeiture of houses and
Limited over a contractual agreement that vehicles worth about NGN2,5 billion belong-
resulted in the arbitral award of NGN8,9 bil- ing to a former Nigerian Minister of Petroleum
lion against Nigeria. Resources being proceeds of corruption.
• The investigation by EFCC of a former Nige-
rian Minister of Petroleum Resources over 7.7 Level of Sanctions Imposed
alleged acquisition of properties, assets and The level of sanctions imposed for the above
theft of cash in excess of NGN350 billion offences on individuals and legal entities has
through corrupt means. ranged from monetary fines involving restitu-
• The investigation by EFCC of Marine Assets tion, to forfeiture of the proceeds of corruption
and Offshore Equipment Limited over alleged and bribery and to imposition of varying terms
conspiracy, money laundering and stealing in of imprisonment for officers of legal entities who
relation to a sum in excess of NGN15 billion, were the directing minds in the commission of
paid into the company’s bank accounts. the offences.
• The investigation by the EFCC of a company
promoter who is alleged to have absconded
with depositors’ funds in excess of NGN120 8. Review
billion.
• The investigation by the EFCC of four govern- 8.1 Assessment of the Applicable
ment officials for alleged fraud and corrupt Enforced Legislation
enrichment in excess of NGN45 billion. The Conference of the States Parties to the
United Nations Convention Against Corruption
226 CHAMBERS.COM
assesses Nigeria’s compliance with international

requirements and also the strength of the legisla-
tion and policies established.
Key strengths have been identified in the areas

of legislation, establishment of bodies and agen-
cies to enforce the country’s anti-corruption and
anti-bribery legislation.
Weaknesses have been highlighted in the areas

of training personnel and public officials on glob-
al best practices and ethics.

There are no foreseeable changes to the appli-
cable legislation or the enforcement bodies.
Although in May 2022, the President of the
country signed into law the Proceeds of Crime
(Recovery and Management of Assets) Act
which sets up another agency or body to deal
with the tracing and recovery of proceeds linked
to corruption and bribery.
Both the EFCC and ICPC have complained

that this new agency will duplicate their current
responsibilities, create bureaucratic bottlenecks
and dilute their powers.
227 CHAMBERS.COM
Threshing Fields Law is a full-service commer- experienced partners who have impeccable and
cial law firm, with its main office in the com- outstanding reviews in their respective areas of
mercial centre of Lagos in Nigeria. It has proven practice, as well as associates who are rising
expertise in corporate/commercial practice, stars in their areas of specialisation. The firm’s
commercial litigation and arbitration, energy anti-corruption and anti-bribery specialist unit
and natural resources law, anti-bribery and anti- within the government regulatory department is
corruption practice, government regulatory/ a six-member strong team of specialist lawyers.
compliance, employment and labour issues, Threshing Fields Law has an excellent reputa-
local content, maritime and shipping, immigra- tion for its extensive knowledge and pragmatic
tion, customs issues and taxation. approach in dealing with clients’ instructions.
It has an excellent team of highly qualified and
Author
Frederick Festus Ntido is a advised and continues to advise international
dual-qualified Nigerian and and local businesses on all aspects of
United Kingdom solicitor. He has establishing their operations in Nigeria, through
over two decades of practical obtaining all requisite government and
experience in the corporate/ regulatory approvals and interfacing with
commercial, anti-bribery and government agencies. Frederick was called to
anti-corruption, energy, litigation, employment the Nigerian Bar in 1998 and qualified as a
and labour, shipping, government regulatory solicitor in England and Wales in 2010.
and compliance practice areas. He has
THRESHING FIELDS LAW

1 Alade Close
off Adeniran Ogunsanys
Surulere
Lagos
Nigeria
Tel: +234 802 310 0885

Email: fred.ntido@threshingfieldslaw.com
Web: www.threshingfieldslaw.com
228 CHAMBERS.COM
NORWAY
Law and Practice
Contributed by: Norway Sweden Finland
Elisabeth Roscher, Geir Sviggum,
Tine Vigmostad and Kristin Nordland Brattli Oslo
Russia
Wikborg Rein Advokatfirma AS see p.248 Denmark
Contents
2.1 Bribery p.230
3. Scope p.234
5. Penalties p.238
Penalties p.238
229 CHAMBERS.COM
NORWAY Law and Practice
Contributed by: Elisabeth Roscher, Geir Sviggum, Tine Vigmostad and Kristin Nordland Brattli,
Wikborg Rein Advokatfirma AS
1. Legal Framework for Offences 1.4 Recent Key Amendments to National

Legislation
1.1 International Conventions There were no significant amendments to the
Norway has ratified the following international Anti-corruption Provisions in 2022.
conventions relating to anti-bribery and anti-
corruption:
• the OECD Convention on Combating Bribery Elements
of Foreign Public Officials in International
Business Transactions (1997); 2.1 Bribery
• the Council of Europe Criminal Law Conven- Bribery and Corruption
tion on Corruption (1999); The Anti-corruption Provisions are broad and
• the Council of Europe Civil Law Convention general in scope, in the sense that they cover
on Corruption (1999); active and passive corruption, corruption in the
• the Additional Protocol to the Council of public and private sectors and corruption com-
Europe Criminal Law Convention on Corrup- mitted in Norway and abroad. The Anti-corrup-
tion (2003); and tion Provisions do not expressly use the term
• the United Nations Convention against Cor- “bribery”, but bribes are considered corrupt
ruption (2003). acts and are thus covered by the definition in
the Penal Code.
In 2003, general criminal provisions prohibiting Passive corruption occurs when a person, for
bribery and corruption were included in the Nor- themselves or others, demands, receives or
wegian Penal Code. In the current Penal Code of accepts an offer of an “improper advantage”
2005 (the “Penal Code”), the relevant provisions in “connection with” the conduct of their “posi-
are Sections 387, 388 and 389 (the “Anti-corruption, office or performance of an assignment” in
tion Provisions”). Section 387 covers “corrup- Norway or abroad (Section 387, first paragraph,
tion”. Section 388 stipulates a higher penalty for letter a).
aggravated or gross corruption and describes
factors to be taken into consideration in deciding Accordingly, active corruption occurs when a
whether the corruption is aggravated. Section person gives or offers any person an “improper
389 covers “trading in influence”. advantage” in “connection with” the conduct of
the passive party’s “position, office or perfor-
1.3 Guidelines for the Interpretation and mance of an assignment” in Norway or abroad
Enforcement of National Legislation (Section 387, first paragraph, letter b).
There are no guidelines produced for the inter-
pretation and enforcement of the Anti-corruption A description of the relevant requirements fol-
Provisions specifically. In general, the preparato- lows below.
ry works to the Penal Code, as well as case law
from the Norwegian Supreme Court, provide the
most important guidance for the interpretation of
the law, including the Anti-corruption Provisions.
230 CHAMBERS.COM
Improper Advantage Gifts and Hospitality, etc

It follows from the above that Section 387 pro- Hospitality expenditure, gifts and promotional
hibits the giving, offering, receiving or accepting expenditure may, in principle, be considered
of “improper advantages”. corruption. However, the threshold for such
advantages to be considered as an “improper
The term “advantage” is understood to mean advantage” would be rather high.
anything of value that the passive party finds
to be in their interest, or from which a benefit Relevant sources of law do not define any mini-
can be derived. Usually, advantages would be mum threshold amount that must be exceeded
of economic value, such as payments, goods, in order for hospitality expenditure, gifts and pro-
services or entertainment. However, benefits of motional expenditure to be considered “improp-
no economic value could also be considered to er”. In general, nominal or modest gifts and
be advantages within the meaning of Section hospitality would not be considered “improper”
387, such as something that confers a positive unless they can be considered excessive due
reputational impact, or being accepted into a to recurrence and/or improper due to contex-
private association. tual circumstances, such as an ongoing tender
process in which the parties participate. Also,
In order to constitute corruption, the advantage according to case law, when a benefit (typically
must be considered “improper”, which means hospitality) is not of a lasting nature, but is con-
that the advantage must be clearly blameworthy, sumed in connection with an event that in itself
as opposed to merely criticisable. is relevant to an employee’s (the passive party’s)
position and the employee participates in the
Whether an advantage is considered “improper” event openly, it will normally not be considered
must in each case be determined by a concrete as an improper benefit under the corruption pro-
assessment of the totality of the case at hand, vision.
based on a number of factors. Although it is not
strictly necessary that the advantage is offered “In Connection With” the Receiver’s
or given with the intent of influencing the passive “Position, Office or Performance of an
party in their performance of duties, purpose or Assignment”
intent would nonetheless be an important fac- It is a condition that the improper advantage is
tor when determining impropriety. Only in excep- offered, given, received or accepted “in connec-
tional cases will there be grounds for criminal tion with” the “position, office or performance of
liability if there is no such intent. Other relevant an assignment” of the passive party. Advantages
factors would, inter alia, be the nature and value offered to, or accepted by, the passive party in
of the advantage, whether the act involves public their role as a private individual fall outside the
officials, whether the advantage is given openly scope of Section 387.
and transparently, and whether there has been a
breach of internal ethical rules of the company or The term “position, office or performance of
of practices within the relevant industry. an assignment” shall be interpreted broadly. It
includes all types of public and private employ-
ment or authority, including board positions,
231 CHAMBERS.COM
political duties or the performance of consul- extortion (eg, if a person, when travelling abroad,
tancy services. feels compelled to pay a foreign public official a
small payment for the return of their passport).
Normally, the improper advantage is provided Payments in such extortion situations will gener-
in return for something that the receiver does or ally not be considered as corruption under Nor-
omits to do in the performance of their profes- wegian law.
sional duties, to benefit the active party or some-
one they wish to favour. However, the advantage Aggravated Corruption
does not have to be related to a specific act or Elements to be taken into consideration in deter-
omission. Consequently, pure “greasing” may mining whether the corruption is “aggravated”
also be covered by Section 387. are set out in Section 388, letters a–d, which
includes whether:
Furthermore, Section 387 does not require that
the passive party actually conducts any of the • the act was carried out by or towards a public
acts they have been encouraged to perform, or official or in any other way violates the special
that they are in a position to do so. trust attached to a position, office or assign-
ment;
Finally, it should be noted that advantages • the act resulted, or could have resulted, in a
offered, given, received or accepted after the considerable financial advantage;
passive party has (potentially) acted in connec- • there was a risk of considerable harm; and
tion with their position, office or assignment are • false accounting information or documenta-
also included. tion was recorded or prepared.
Facilitation Payments Public Officials

The Penal Code does not expressly mention The Anti-corruption Provisions cover corruption
facilitation payments. Still, it follows from the within the private and public sectors, including
preparatory works that offering, giving, receiv- bribery of public officials. In general, corruption
ing or accepting facilitation payments may be involving public officials would be considered
considered as “corruption” under Section 387, more aggravating than commercial bribery. As
provided that all the conditions for criminal liabil- noted above, the involvement of public officials
ity are met. is relevant when assessing whether the corrup-
tion shall be considered “aggravated”.
Normally, the threshold for deeming facilitation
payments to constitute an “improper advantage” The Anti-corruption Provisions of the Penal
would be rather high, given that the payment Code do not include a definition of “public offi-
would typically be for services that the active cial”. However, the term is interpreted broadly,
person is entitled to receive. Relevant elements and at least comprises individuals employed
in the impropriety assessment would, inter alia, or otherwise engaged by, or instructed by, the
be the value of the advantage provided (eg, government and state or municipal agencies
amount paid), whether the payment is in line in addition to individuals holding positions of
with local business practices, and whether the “public officials” as defined in other provisions of
situation may be characterised or perceived as the Penal Code or by laws other than the Penal
232 CHAMBERS.COM
Code. Under the circumstances, the term may tage” in “return for influencing the conduct of”
also include individuals employed or engaged a third party’s “position, office or performance
with state-owned entities. of an assignment”; or
• gives or offers any person an “improper
Trading in Influence advantage” in “return for influencing the
Trading in influence is criminalised by Section conduct of” a third party’s “position, office or
389 of the Penal Code (see 2.2 Influence-Ped- performance of an assignment”.
dling).
Typically, trading in influence occurs when an
Culpability influencing agent secretly requests, receives or
The Anti-corruption Provisions apply to inten- accepts an offer of an advantage in return for
tional violations (Sections 21 and 22 of the Penal exerting influence on a third person’s (ie, the
Code). Furthermore, the provisions apply to any decision-maker’s) professional conduct – who
person (including companies) who contributes is not aware of the scheme and does not obtain
to (aids and abets) the offence (Section 15). any benefits from it. Both the influencing agent
Attempts to violate the Anti-corruption Provi- and the person offering or giving the advantage
sions may also be punishable (Section 17). would be exposed to liability. However, Section
389 does not require that the influencing agent
Violations of the Anti-corruption Provisions may actually has the capacity/powers to influence
give grounds for corporate criminal liability, pro- the decision-maker. Furthermore, Section 389
vided that the violations were committed by per- does not require that any advantage has been
sons “acting on behalf” of the company (see 3.3 attained.
Corporate Liability).
When assessing whether the advantage is
Failure to Prevent Corruption “improper” within the meaning of Section 389,
Failure to prevent violations of the Anti-corrup- particular importance is placed on whether the
tion Provisions is not an offence (see 6.1 National influencing agent – for example, a lobbyist –
Legislation and Duties to Prevent Corruption). openly informs the decision-maker that they
are acting on behalf of another person. If the
2.2 Influence-Peddling influencing agent is not transparent about rep-
Section 389 of the Penal Code criminalises resenting another person, such conduct may be
“trading in influence”. As noted in 2.1 Bribery, regarded as improper. If so, the act would be
this offence covers active and passive trading in punishable under Section 389 provided that the
influence, in the public and private sector, com- other conditions for criminal liability are met.
mitted in Norway or abroad.
According to Section 389, first paragraph, let- The Accounting Act (1998) and the Bookkeeping
ters a and b, trading in influence occurs when Act (2004) require companies to keep adequate
a person: books and records.
• for themselves or others “demands, receives According to the Penal Code, Sections 392–394,
or accepts an offer” of an “improper advan- violations of provisions regarding bookkeeping
233 CHAMBERS.COM
and the documentation of accounting informa- aries. Case law shows that both legal and natural
tion, annual accounts, annual reports or storing persons have been held liable for violations of
accounts are criminally punishable. Sections 387 and 388 by engaging third parties
to participate in bribery or other corrupt transac-
The penalty provisions are general in nature tions on their behalf.
and apply to violations of all provisions relat-
ing to accounting and bookkeeping. Thus, the Third parties involved in such offences may be
provisions do not only apply to violations of the held liable for criminal complicity (Section 15 of
Accounting and Bookkeeping Acts, but also, for the Penal Code).
example, to violations of accounting rules in tax
legislation.
3. Scope
2.4 Public Officials
The Penal Code does not contain any provisions 3.1 Limitation Period
that specifically address the misappropriation of Criminal acts are not punishable when the limi-
public funds by a public official, the unlawful tak- tation periods included in the Penal Code have
ing of interest by a public official, embezzlement expired (Section 85 of the Penal Code).
of public funds by a public official or favouritism
by a public official. The limitation period(s) for criminal liability under
Norwegian law depend/depends on the maxi-
However, the general provisions related to, for mum statutory penalty prescribed for the various
example, the misappropriation of funds, fraud, or criminal offences.
breach of financial trust (Sections 324, 371 and
390 respectively) may be applicable. In respect According to Section 86 of the Penal Code, the
of the latter, the penal provision for breach of limitation period for violations of the Anti-cor-
financial trust also specifically mentions that it ruption Provisions committed by individuals are
would be considered an aggravating factor that as follows:
the act was carried out by a public official (Sec-
tion 390, second paragraph). • corruption (Section 387) – five years;
• aggravated corruption (Section 388) – ten
It should also be noted that, according to the years; and
general rules on the determination of penalties, • trading in influence (Section 389) – five years.
it is an aggravating circumstance that a criminal
offence was committed in the course of public With respect to corporate criminal liability, the
service (Section 77 of the Penal Code). limitation period shall be calculated on the basis
of the limitation period that would be applicable
2.5 Intermediaries if the act was committed by an individual (Sec-
It is commonly understood that the wording tion 89 of the Penal Code).
of Sections 387 and 388 of the Penal Code is
wide enough to include the channelling of bribes Provisions concerning the start and interruption
through third parties such as family members, of limitation periods are included in Chapter 15
nominee companies, agents or other intermedi-
234 CHAMBERS.COM
of the Penal Code; see, especially, Sections 87, the Anti-corruption Provisions committed by a
88 and 89. foreign national acting on behalf of the company
abroad, also when such actions would not con-
3.2 Geographical Reach of Applicable stitute a criminal offence in the country in which
Legislation they took place.
According to the principle of territoriality under
Section 4 of the Norwegian Penal Code, as a The Penal Code also generally applies to acts
main rule, Norwegian criminal law, including vio- that Norway has a right or an obligation to prose-
lations of the Anti-corruption Provisions, applies cute pursuant to agreements with foreign states
to criminal acts conducted in Norway (including or otherwise pursuant to international law (Sec-
in Svalbard and on Jan Mayen) and in certain tion 6).
specified places such as the Exclusive Econom-
ic Zone and on Norwegian vessels. In addition, Section 7 of the Penal Code provides
that when the criminality of an act is contingent
The extraterritorial effect of Norwegian criminal on, or affected by, an actual or intended effect,
law is mainly set out in Section 5 of the Penal the act is also deemed to have been committed
Code. The Penal Code applies to violations at the place where the effect has occurred or
of the Anti-corruption Provisions committed was intended to be caused.
abroad by persons who are Norwegian nationals
or domiciled in Norway, and to violations com- 3.3 Corporate Liability
mitted abroad on behalf of a corporate entity Corporate criminal liability for violations of the
registered in Norway (Section 5, first paragraph, Anti-corruption Provisions follows from the gen-
No 12). In addition, the Anti-corruption Provi- eral provisions included in Sections 27 and 28 of
sions may apply retroactively to acts committed the Penal Code. The Supreme Court has stated
abroad; inter alia, to acts committed on behalf that corruption offences lie within the core area
of a foreign entity that after the time of the act of corporate criminal liability.
has transferred the entirety of its operations to
Norway (Section 5, second paragraph). Thus, The Affiliation Requirement (“on Behalf of”)
the Anti-corruption Provisions have extraterrito- A corporate entity may be held criminally liable
rial reach. when a penal provision is violated by a person
“acting on behalf” of a “company”. The term
Notably, such acts committed abroad may be “company” is interpreted broadly, and includes
prosecuted in Norway pursuant to the Penal companies, associations, foundations, organisa-
Code, even if the activity does not constitute a tions and public bodies. According to case law
criminal offence under local law. This is a con- and the preparatory works to the Penal Code, a
sequence of the amendments made to Section person would be “acting on behalf” of the com-
5 of the Penal Code as of 1 July 2020, which pany only if both the offender and the act have
exempted foreign violations of, inter alia, the a certain connection with the company.
Anti-corruption Provisions from the general
requirement of dual criminality. For example, the Complicity
amendment makes clear that Norwegian com- According to Section 15 of the Norwegian Penal
panies may be held responsible for violations of Code, a penal provision also applies to any per-
235 CHAMBERS.COM
son (including companies, in accordance with whether a penalty is imposed on any individu-
Section 27 of the Penal Code) who contributes al person is a relevant factor when assessing
to (aids and abets) the offence, unless otherwise whether a penalty should be imposed against
provided. the company (Section 28, letter g).
Prosecutorial and Judicial Discretion Culpability

The imposition of corporate liability is subject to Companies may also be penalised if the indi-
discretion (prosecutorial and of the courts) (Sec- vidual who committed the offence is not pros-
tions 27 and 28). This means that even if the ecuted or convicted. In fact, the wording of Sec-
conditions of Section 27 are satisfied, there is no tion 27 allows for corporate liability even if the
general presumption of corporate liability under subjective culpability or accountability require-
Norwegian law; ie, the imposition of a corporate ments of the Penal Code are not met for the indi-
penalty depends on all the circumstances of the vidual who committed the offence on behalf of
case. the company. This would, in practice, mean that
the Penal Code allows for penalising a company
When deciding whether to impose liability on a on the basis of strict liability; ie, even if no indi-
company (and if so, the level of sanctions), the vidual may be found guilty of, or charged with,
prosecutors and courts will conduct a broad the offence.
overall assessment primarily based on the (non-
exhaustive) list of factors set out in Section 28, However, the Norwegian Supreme Court found,
including: in its judgment of 15 April 2021, that such a strict
liability requirement was not in conformity with
• the severity of the offence; the European Convention on Human Rights and
• the preventative effect of the penalty; case law from the European Court of Human
• whether the company could have prevented Rights. Therefore, going forward, demonstrat-
the offence by use of guidelines, instruction, ing subjective culpability (a “mental link”) will be
training, checks or other measures; required in order to impose corporate liability.
• whether the offence has been committed in The Supreme Court’s judgment necessitates
order to promote the interests of the com- changes to the corporate criminal liability pro-
pany; and vision. A proposal for new wording is currently
• the financial capacity of the company. under consideration; see 8. Review.
In addition, according to case law, it is also Successor Liability

relevant to assess whether the company has Under Norwegian law, a successor entity may
taken appropriate measures to remedy the vio- be held liable for criminal offences by the tar-
lation after becoming aware of it (so-called self- get entity that occurred prior to, for example, a
cleaning). merger or acquisition.
Individual and Corporate Liability for the If a company undergoes “identity changes” after
Same Offence a criminal offence has been committed, criminal
Individuals and companies may – and often will liability shall be placed at the company on behalf
– be held liable for the same offence. However, of which the offence was committed. This is cur-
236 CHAMBERS.COM
rently not further regulated by law and depends In respect of corporate criminal liability, some of
on a complex assessment, where the guidelines the discretional elements to be considered when
are set out in case law and legal theory. determining whether corporate liability should
be imposed contain defence-related elements
In summary, the main rule is that the criminal (Section 28, and see 3.3 Corporate Liability). In
liability follows the company’s formal identity; particular, it would be relevant to assess whether
ie, as it is established in accordance with the the company could have prevented the offence
rules that apply to the type of company in ques- by the use of guidelines, instruction, training,
tion. This means that, for example, the transfer checks or other compliance measures (Sec-
of shares in a company does not change which tion 28, letter c). A defence against liability for
subject is criminally liable (Supreme Court Rul- corruption violations committed “on behalf of”
ing of 2002 on p1722). In such cases, criminal the company could therefore be to demonstrate
liability would transfer with the target entity (ie, that the company had in place an effective anti-
the entity being sold). corruption compliance programme at the time
of the violation, and that the company could not
In the event of an asset sale where the activity reasonably have acted differently in its efforts to
in the original company is transferred to another prevent the violation.
company but the original company still formally
exists, the acquiring company will, on the other It is important to note, however, that the assess-
hand and as a general rule, not be held crimi- ment of such defence is subject to (prosecuto-
nally liable for any prior criminal offence. There rial/judicial) discretion, and would not automati-
may, however, be exceptions to this rule if the cally absolve the company of corporate liability.
purchaser has taken over a complete division
of a company with all activities, employees and 4.2 Exceptions
contracts. As there are no formal defences available to vio-
lations of the Anti-corruption Provisions of the
Penal Code, there are no such exceptions.
4.1 Defences There are no de minimis exceptions for the Anti-
The Penal Code does not contain any concrete corruption Provisions of the Penal Code.
defences that apply specifically to the Anti-cor-
ruption Provisions. 4.4 Exempt Sectors/Industries
The Anti-corruption Provisions of the Penal Code
Any of the general defences within the Penal apply to all natural and legal persons acting
Code may apply as defences for violations of within the jurisdiction of the Penal Code (see 3.2
the Anti-corruption Provisions. For example, Geographical Reach of Applicable Legislation),
it would be a defence against violations of an without exception. Consequently, no sectors or
Anti-corruption Provision if the violation is com- industries are exempt from these offences.
mitted on grounds of necessity (Section 17) or
self-defence (Section 18).
237 CHAMBERS.COM
4.5 Safe Harbour or Amnesty Programme In addition, both natural and legal persons may
Under Norwegian law, there is no formal system face measures such as the confiscation of pro-
of safe harbours or amnesty programmes based ceeds arising from the violation (Sections 66–76
on self-reporting or having in place adequate of the Penal Code).
compliance procedures or remediation efforts.
However, self-reporting may reduce the penalty Assessment of Penalties
imposed for the violation (see 5.2 Guidelines As further described in 5.1 Penalties on Con-
Applicable to the Assessment of Penalties, viction, the penalties for violations of the Anti-
6.3 Disclosure of Violations of Anti-bribery corruption Provisions are fines (no minimum or
and Anti-corruption Provisions and 7.4 Discre- maximum limit) and/or imprisonment for certain
tion for Mitigation). Moreover, efforts to remedy maximum terms. The minimum term of imprison-
the violation after becoming aware of it (ie, self- ment for such violations is 14 days (Section 31,
cleaning) are relevant when determining whether second paragraph).
corporate liability should be imposed, and, if so,
when determining the level of sanctions imposed Within these minimum and maximum limits, Nor-
(see 3.3 Corporate Liability and 5.2 Guidelines wegian courts have much leeway in the determi-
Applicable to the Assessment of Penalties). nation of appropriate penalties.
General Statutory Guidelines

5. Penalties As a starting point, Sections 77 and 78 of the
Penal Code contain general guidelines that apply
5.1 Penalties on Conviction to the determination of appropriate penalties for
When committed by individuals, the penalties violations of the Penal Code within the applica-
for corruption (Section 387 of the Penal Code) ble minimum and maximum limits. In addition,
and trading in influence (Section 389 of the Penal Sections 79 and 80 provide a basis for increas-
Code) may be imprisonment for a term of up to ing or decreasing the maximum and minimum
three years and/or a fine. For legal persons, the penalties, respectively, on a case-by-case basis.
corporate penalty for such offences would be
a fine, which may be combined with loss of the In respect of general aggravating circumstances
right to operate or prohibitions on operation in to be given particular consideration, Section 77
certain forms. includes factors such as whether the offence:
In respect of penalties upon conviction for • carried a considerable potential for harm;
aggravated corruption (violation of Section 388 • was intended to have a substantially more
of the Penal Code), the penalties for natural per- serious outcome;
sons may be a term of imprisonment up to ten • was committed by multiple persons acting
years. For legal persons, the penalty may be a together;
fine (unlimited amount), which may be combined • was committed in the course of public ser-
with loss of the right to operate or prohibitions vice; or
on operation in certain forms. • was perpetrated by violating a special trust.
238 CHAMBERS.COM
In respect of general mitigating circumstances Section 79, which allows for the imposition of
to be given particular consideration, Section 78 penalties exceeding the maximum penalty for
includes factors such as whether the offender: the offence, provides that a sentence of impris-
onment may be increased up to double length;
• has prevented, reversed or limited the harm inter alia, when a previously convicted person
or loss caused by the offence, or sought to has again committed a criminal act of the same
do so; nature as one for which they have previously
• made an unreserved confession, or contrib- been convicted.
uted significantly to solving other offences; or
• acted on the basis of a dependent relation- In respect of fines, Section 53 provides that when
ship to another participant. assessing the size of the fine to be imposed,
particular weight shall, in general, be given, in
Additionally, Section 78 provides a basis for addition to such factors that are generally given
prosecutors and courts to reduce the penalty weight in assessing penalties, to the offender’s
due to the offender’s self-reporting (including income, assets, responsibility for dependants,
giving an unconditional confession); see also debt burden and other circumstances affecting
6.3 Disclosure of Violations of Anti-bribery financial capacity.
and Anti-corruption Provisions. As regards the
size of such “discount”, the Director of Public Corporate Criminal Liability
Prosecutions has expressed that, in general, a With respect to corporate criminal liability, the
discount of between a quarter and a third would size of the fine to be imposed is determined
be considered appropriate. However, an overall based on the non-exhaustive list of factors set
assessment of all the relevant circumstances of out in Section 28 of the Penal Code (see 3.3
the case must always be made. Corporate Liability).
Moreover, Section 80 provides a list of circum- Law Enforcement/Case Law

stances that would allow for the imposition of In addition, the Norwegian National Authority
a penalty below the minimum penalty or a less of Investigation and Prosecution of Economic
severe type of penalty. Inter alia, this may be and Environmental Crime (ØKOKRIM) will pub-
done when the offender, without knowing that lish information regarding the factors ØKOKRIM
they were under suspicion, has, to a significant considers when issuing a penalty notice, includ-
degree, prevented or reversed the harm caused ing the size of the fine.
by the offence, or has made an unreserved con-
fession. Also, case law may provide guidance for the
assessment of appropriate penalties for corrup-
In general, repeated offences may be more tion offences. For example, the Supreme Court
severely punished. Section 77, letter k, provides has emphasised that the preventative effect of a
that an aggravating factor when determining an penalty is of particular importance when deter-
appropriate penalty is whether the act was com- mining appropriate penalties for corruption com-
mitted by a person who has previously been the mitted in the course of public service.
subject of a criminal sanction for similar acts or
other acts of relevance to the case. Moreover,
239 CHAMBERS.COM
6. Compliance and Disclosure example, to companies in the private sector that

carry out lobbying activities. The Quarantine Act
6.1 National Legislation and Duties to also has rules on the obligation to provide infor-
Prevent Corruption mation in connection with transfers covered by
Norwegian legislation does not provide a legal the act.
duty to prevent corruption by setting up a com-
pliance programme (or similar preventative Also, as noted in 2.1 Bribery, Section 389 of
measures). Consequently, a failure to prevent the Penal Code criminalises active and passive
corruption is not an offence under Norwegian “trading in influence” in the public and private
law. sector, committed in Norway or abroad.
Having said that, whether the company could Typically, trading in influence occurs when an
have prevented a corruption offence by the influencing agent (eg, a lobbyist) demands,
use of internal guidelines, instruction, training, receives or accepts an offer of an improper
checks or other measures is an important fac- advantage in return for secretly exerting influ-
tor when determining whether corporate liability ence on a third person’s (ie, a decision-maker’s)
should be imposed, and, if so, the size of the professional conduct. Both the influencing agent
fine (Section 28 of the Penal Code, and see 3.3 (eg, a lobbyist) and the person offering or giving
Corporate Liability and 4.1 Defences). Imple- the advantage are exposed to criminal liability,
menting effective anti-corruption compliance see 2.2 Influence-Peddling.
programmes may therefore reduce the risk of
criminal liability. When assessing whether the advantage is
“improper” within the meaning of Section 389,
ØKOKRIM has expressed certain (soft-law) particular importance is placed on whether the
expectations with respect to the measures com- influencing agent (eg, a lobbyist) openly informs
panies should implement to prevent corruption the decision-maker that they are acting on behalf
related to their business. Inter alia, ØKOKRIM of another person. If the influencing agent is not
suggests that companies look to the DOJ Evalu- transparent about representing another person
ation of Corporate Compliance Programs (from (by clearly informing the decision-maker of this
the US Department of Justice) and the UK Min- fact), and does not have reason to believe that
istry of Justice’s guidance to the UK Bribery the decision-maker otherwise has knowledge
Act for inspiration in relation to compliance proof this, such conduct will often be regarded as
grammes. “improper”.
6.2 Regulation of Lobbying Activities However, it is stated in the preparatory works to

Lobbying activities are not directly regulated by Section 389 that the influencing agent is gener-
Norwegian legislation. ally not required to inform the decision maker
about who they are acting on behalf of, or of
However, the Quarantine Act (LOV 2015-06-19- the type or value of the advantage they have
70) sets out rules on quarantine in certain situ- demanded, received or accepted in this regard.
ations when politicians, public officials/govern-
ment employees transfer to new positions, for
240 CHAMBERS.COM
Other relevant circumstances when assessing • when considering whether to initiate investi-
whether the advantage was “improper” is typi- gative steps such as searching the company’s
cally the value and type of advantage that is premises or seizing documents;
demanded, received or accepted by the influ- • whether to prosecute, and, if so, the nature of
encing agent, and who the decision-maker is the charges; and
(eg, whether the decision-maker holds a position • when assessing company liability and decid-
or office that is especially important to safeguard ing the amount of penalty to be imposed.
from improper influence, such as members of
the national assembly or the Supreme Court). 6.4 Protection Afforded to Whistle-
Blowers
6.3 Disclosure of Violations of Anti- Right to Report Objectionable Conduct
bribery and Anti-corruption Provisions There is protection afforded to whistle-blowers
Norwegian law does not require individuals or in Norway.
companies to report any violations, or suspicion
of violations, of the Anti-corruption Provisions. The protection of whistle-blowers follows from
the Norwegian Act relating to the working envi-
However, as further described in 5.2 Guidelines ronment, working hours and employment pro-
Applicable to the Assessment of Penalties and tection, etc, of 2005 No 62 (the “Working Envi-
7.4 Discretion for Mitigation, self-reporting/ ronment Act”).
admission of guilt could be of significant impor-
tance, both in the determination of whether to According to Section 2 A-1 (1) of the Working
prosecute and at the sentencing stage. Environment Act, an employee has the right to
report “censurable conditions” (ie, matters of
Companies are encouraged by the enforcement concern, hereinafter referred to as “objection-
authorities (such as ØKOKRIM) to disclose any able conduct”) relating to the employer’s busi-
suspicions of – eg, economic crime, and to do ness. From the same paragraph, it follows that
so as early and thoroughly as possible. For this right is also granted to hired workers.
example, companies are encouraged to share
the results of any internal investigations relating The legislation confers a right to report “objec-
to the (suspected) violation. Should a criminal tionable conduct”, which means conditions
investigation be opened, companies are encour- in contravention of legal rules, written ethical
aged to co-operate with the investigative author- guidelines or broadly accepted ethical norms in
ities. society (Section 2 A-1 (2)). Examples of “objec-
tionable conduct” include:
In general, the timing and extent of the willing-
ness to disclose information and co-operate with • danger to life or health;
the authorities will be taken into account when • danger to the environment or climate;
the authorities exercise procedural discretion • corruption or other economic crimes;
related to the case. For example: • abuse of authority;
• unsatisfactory working environment; and
• breach of data privacy.
241 CHAMBERS.COM
A notification may be made anonymously, and worker has signalled their future intention to
the employer would, to the extent possible, also report; for instance, by providing information
be required to follow up on anonymous notifica- about objectionable conduct.
tions.
In this context, retaliation would include any
The right to report objectionable conduct does detrimental act, practice or omission that is a
not extend to matters that solely concern the consequence of, or reaction to, the employee or
employee’s own working conditions, unless hired worker’s report. Examples of “detrimental
such matters relate to conduct clearly defined acts” include:
as objectionable in Section 2 A-1 (2), as set out
above. Examples of matters that would not nor- • threats, harassment, arbitrary discrimination,
mally be considered “objectionable conduct” social exclusion or other improper conduct;
within the meaning of the Working Environment • warnings, change of duties, relocation or
Act include dissatisfaction about one’s salary, demotion; and
workload, distribution of work or occupational • suspension, dismissal, summary discharge or
disagreements. disciplinary action.
Procedure for Notifications 6.5 Incentives for Whistle-Blowers

An employee may report concerns through There are no general financial incentives for
various channels, including internally to the whistle-blowers to report bribery or corruption
employer or a representative of the employer, in in Norway.
accordance with internal reporting procedures,
in accordance with relevant reporting obligations However, an employee may, in certain cir-
or via a health and safety, union or legal repre- cumstances, have an obligation to notify their
sentative (Section 2 A-2 of the Working Environ- employer of objectionable conduct in cases
ment Act). An employee may also report exter- where the employee becomes aware of circum-
nally to a public supervisory authority or other stances such as (Section 2–3 of the Working
public authority. In certain (albeit more limited) Environment Act):
circumstances, an employee may also report
directly to the media or the public. • faults or defects that may involve a danger to
life or health;
Prohibition Against Retaliation • harassment or discrimination in the work-
The right to report concerns is safeguarded by place; or
way of a prohibition against retaliation. • an employee suffering injury at work or dis-
eases believed to be a result of the work or
It follows from Section 2 A-4 of the Working Envi- working conditions.
ronment Act that retaliation against an employee
or hired worker who notifies their employer or Please note that there are also some regulated
hirer of any objectionable conduct, in accord- professions that have an obligation to notify rel-
ance with the procedure set out above, is pro- evant authorities of suspicious transactions or
hibited. The prohibition against retaliation also activities, such as auditors and employees of
applies in cases where the employee or hired financial institutions.
242 CHAMBERS.COM
There is also an obligation for companies subject • Section 2 A-8 on the role of the Discrimina-
to the requirements of the Norwegian Act relat- tion Tribunal in disputes relating to breaches
ing to measures to combat money laundering of the prohibition against retaliation of whis-
and terrorist financing of 1 June 2018 No 23 (the tle-blowers.
“Anti-Money Laundering Act”) to report circum-
stances giving grounds for suspicion of money
laundering or terrorist financing to the authori- 7. Enforcement
ties (Section 26 of the Anti-Money Laundering
Act). This obligation also applies personally to 7.1 Enforcement of Anti-bribery and Anti-
board members, management representatives, corruption Laws
employees and others acting on behalf of the Under Norwegian law, enforcement of violations
company. of the Anti-corruption Provisions of the Penal
Code is a criminal matter, governed by the Nor-
6.6 Location of Relevant Provisions wegian Criminal Procedure Act (1981).
Regarding Whistle-Blowing
The key whistle-blowing provisions are found in 7.2 Enforcement Body
Chapter 2 A of the Working Environment Act, as ØKOKRIM is the Norwegian national authority
detailed in 6.4 Protection Afforded to Whistle- for the investigation and prosecution of econom-
Blowers. They include: ic and environmental crimes, including violations
of the Anti-corruption Provisions. ØKOKRIM
• Section 2 A-1 on the right to report objection- is simultaneously a public prosecutors’ office
able conduct (see 6.4 Protection Afforded to reporting to the Director of Public Prosecutions,
Whistle-Blowers); as well as a centralised specialist police agency,
• Section 2 A-2 on the procedure for report- organised under the National Police Directorate.
ing concerns (see 6.4 Protection Afforded to
Whistle-Blowers); In practice, cases involving corruption offences
• Section 2 A-3 on the employer’s duty to act in may also be handled by the specialist teams for
response to reported concerns; economic crimes in the local police districts.
• Section 2 A-4 on the prohibition against
retaliation (see 6.4 Protection Afforded to In such cases, the police districts may – if nec-
Whistle-Blowers); essary – request investigatory support from
• Section 2 A-5 on redress and compensation ØKOKRIM’s designated Assistance Team. The
in cases of breach of the prohibition against nature and extent of the support is determined
retaliation; on a case-by-case basis. By way of its support
• Section 2 A-6 on the requirement for employ- and guidance, ØKOKRIM contributes to building
ers to prepare procedures for internal report- and maintaining competency in the police dis-
ing, applicable to companies with at least five tricts as well as to solving the cases. ØKOKRIM
employees; may also support the various special police
• Section 2 A-7 on the duty of confidentiality in agencies, such as the Norwegian Bureau for the
connection with external reporting to public Investigation of Police Affairs, which investigates
authorities; and criminal offences committed by police officers.
243 CHAMBERS.COM
Particularly serious violations of economic of a case without court proceedings (Chapter 20

crimes are handled by ØKOKRIM itself. In this of the Criminal Procedure Act).
regard, it should be noted that ØKOKRIM (unlike
the police districts) has discretionary power to Penalty notices are frequently used in cases
decide which cases to investigate. Its decision regarding corporate criminal liability; eg, in cor-
in this regard shall, in particular, be based on: ruption and other economic crime cases. If the
penalty notice is not accepted by the company
• the scope and complexity of the investiga- (or person) charged, the notice will serve as an
tion/its economic size; indictment and court proceedings will be initi-
• whether the case is international/cross-bor- ated.
der; and
• whether the nature of the case is such that an In practice, and as mentioned in 6.3 Disclosure
investigation should be opened as a matter of of Violations of Anti-bribery and Anti-corrup-
principle. tion Provisions, the willingness to self-report/
admit guilt and co-operate with the authorities
In respect of court proceedings, there are no will be taken into account; eg, in the prosecuto-
specialised courts or judges for criminal cases rial discretion on whether to impose corporate
in the Norwegian courts system. All courts and liability and with respect to the level of the fine.
judges competent to handle criminal cases may
handle cases involving violations of the Anti- Furthermore, self-reporting and admission of
corruption Provisions. guilt may also be considered by the court when
determining an appropriate penalty (see 5.2
7.3 Process of Application for Guidelines Applicable to the Assessment of
Documentation Penalties).
The Norwegian Criminal Procedure Act also
applies to the investigation of corruption cases. 7.5 Jurisdictional Reach of the Body/
Bodies
Due to the fact that aggravated corruption can Norwegian law enforcement has the authority to
be punished with ten years’ imprisonment, the investigate and prosecute crimes that fall within
police may – in addition to search and seizure Norwegian jurisdiction (see 3.2 Geographical
of evidence – in such cases also use coercive Reach of Applicable Legislation).
measures, such as different forms of surveil-
lance. As mentioned in 7.2 Enforcement Body,
ØKOKRIM has primary responsibility for the
7.4 Discretion for Mitigation enforcement of international cases.
Norwegian criminal procedure does not cur-
rently contain any formal system for non-trial 7.6 Recent Landmark Investigations or
resolutions such as plea agreements, deferred Decisions involving Bribery or Corruption
prosecution agreements and non-prosecution Some examples of recent cases involving vio-
agreements. However, criminal cases may be lations of the Anti-corruption Provisions are
resolved through penalty notices; ie, resolution included below.
244 CHAMBERS.COM
First, two recent decisions (the Tjøme case and The Nittedal Case
the Nittedal case) clarify the content of the con- Late in 2020, a local mayor and a local busi-
dition in the corruption provision (Section 387 of nessman were indicted for aggravated corrup-
the Penal Code) that a benefit must be granted tion related to a benefit the mayor had received
“on the occasion of” the recipient’s position, in connection with a private business relation-
office, or assignment to be considered corrup- ship. The businessman had paid NOK125,000 to
tion. a company that was 50% owned by the mayor
and in the view of the prosecution, the payment
The Tjøme Case was made in connection with the mayor’s posi-
The Supreme Court decision (HR-2022-1278-A) tion/office; ie, her role in approving a construc-
concerned an architect who had provided free tion project in which the businessman had sig-
architectural services to a municipal planning nificant interests.
official.
Both the mayor and the businessman were
Both the architect and the official were charged acquitted by the Court of Appeal in July 2022.
with gross corruption and initially sentenced
to eight months’ imprisonment for aggravated The Court of Appeal found that the benefit in this
corruption in the local district court. On appeal, case had not been granted “on the occasion”
they were however acquitted and the Court of of the recipient’s office as mayor. The Court of
Appeal held that evidence had to be provided Appeal stated that evidence must be shown
for a causal link between the benefit and the that the benefit provided is in fact related to the
recipient’s position. Based on the evidence in recipient’s performance of a position, office or
the case, the court held that it could not be ruled assignment and clarified relevant assessment
out that the services were provided to the official criteria in this regard.
in his capacity as a private individual, unrelated
to his position. The prosecuting authority did not appeal the
case, which means the acquittal is final.
The Supreme Court stated that the term “on the
occasion” indicates a requirement of connec- The Stendi Case
tion between the performance of a benefit and In April 2022, three previous regional directors
the position the recipient holds. But even if such of the private care provider Stendi AS were sen-
connection or link must have a certain strength tenced by the Oslo district court to prison sen-
and be clear, there is no requirement for a direct tences of between one year and nine months,
causal connection between the benefit provided and three years, for aggravated corruption. The
and the recipient’s position. Consequently, the manager of certain companies that provided ser-
Supreme Court overturned the acquittal. vices to Stendi AS was sentenced to four years
and three months’ prison time for aggravated
The case is scheduled for retrial before the Court corruption.
of Appeal following the Supreme Court’s ruling.
The directors had significant influence on Stendi
AS’s selection of suppliers and purchases. The
manager had over some time given the directors
245 CHAMBERS.COM
improper advantages, including by renovating 7.7 Level of Sanctions Imposed

one director’s house free of charge, and giving Fines imposed on individuals for violations of
another free disposal of two cars and a boat. the Anti-corruption Provisions have been in the
range of NOK6,000 to NOK450,000 (statistics
In connection with the sentencing, Oslo district from Transparency International Norway for
court underlined that corruption in the public 2003–2021). The longest prison sentence in a
sector has particularly harmful effects on soci- corruption case is the maximum sentence of 21
ety, and that “Stendi AS ran welfare and care years in case against a former policeman (the
services to vulnerable user groups and received Jensen case). Note, however, that the sentence
their assignments from public authorities. The also included other serious charges (ie, not just
business was particularly reliant on trust from corruption charges).
both users and clients”.
In respect of corporate criminal liability, the high-
All four have appealed their cases and the con- est penalty imposed on a company for violation
victions are not final. of the Anti-corruption Provisions is the NOK270
million fine imposed on Yara International ASA
Corruption in the Municipal Sector in 2017. In addition to the fine, an amount of
In April 2022, four individuals were convicted NOK25 million was confiscated.
by the Oslo district court to imprisonment for
corruption relating to the sale of real estate to
the municipality of Oslo. A purchaser hired by 8. Review
a municipal real estate company was convicted
for passive corruption, for accepting money and 8.1 Assessment of the Applicable
other improper advantages from private inves- Enforced Legislation
tors in connection with their sale of real estate The enforcement of the Anti-corruption Provi-
at inflated values to the municipal company. The sions has not been officially assessed in 2022.
remaining three individuals were convicted for However, in May 2021, the Ministry of Justice
active corruption, for non-transparently paying and Public Security published an evaluation,
the consultant money, including kickbacks, in conducted by Knut Høivik (PhD), of the Nor-
connection with the sales. The terms of impris- wegian legislation governing corporate criminal
onment vary from six months to three-and-a-half liability (Sections 27 and 28 of the Penal Code)
years. A fifth individual was convicted of laun- and the Anti-corruption Provisions (Sections
dering the proceeds from the crimes. 387, 388 and 389 of the Penal Code) (the “Høi-
vik Evaluation”). This evaluation is under review
ØKOKRIM has stated that the case illustrates the by the Ministry (see 8.2 Likely Changes to the
seriousness of corruption in the municipal sector Applicable Legislation of the Enforcement
and in particular in public procurement, where Body).
private and public sectors intersect. ØKOKRIM
has underlined that it will focus on investigating In his study, Høivik conducted a comprehensive
corruption, particularly in the public sector, going evaluation and proposed a revision of the rules
forward. At least one of the convicted individuals on corporate liability in light of the fact that it is
have indicated that he will appeal the case. 30 years since the general legal basis for cor-
246 CHAMBERS.COM
porate liability was introduced in 1991. Further- The Ministry of Justice and Public Security has
more, Høivik assessed whether there is a need not (yet) provided their views of the Høivik Eval-
for changes to the Anti-corruption Provisions to uation (as further commented on in 8.2 Likely
ensure an effective fight against corruption in Changes to the Applicable Legislation of the
line with Norway’s international obligations. Enforcement Body).
In brief, the Høivik Evaluation provided, inter 8.2 Likely Changes to the Applicable
alia, the following suggestions for legislative Legislation of the Enforcement Body
changes: The Høivik Evaluation, mentioned in 8.1 Assess-
ment of the Applicable Enforced Legislation, is
• introduce requirements regarding subjec- under consideration by the Ministry of Justice
tive guilt (culpability) for corporate criminal and Public Security. The evaluation was sent on
liability; a public hearing (consultation round) from 12
• clarify which connection should be required October 2021 to 11 January 2022. Within this
between the company and the offence(s) in timeframe, any natural or legal person had the
order for the company to be criminally liable; opportunity to provide the Ministry with their
• remove the discretionary nature of corporate comments on the evaluation and the changes
criminal liability; proposed therein.
• clarify that indirect corruption through the use
of intermediaries is covered by the Anti-cor- The Ministry has not (yet) presented any proposi-
ruption Provisions; tions to the Norwegian Parliament based on the
• criminalise gross negligent complicity to cor- Høivik Evaluation’s suggestions for changes to
ruption; the legislation governing the Anti-corruption Pro-
• limit the scope of the “trading in influence” to visions (Sections 387, 388 and 389 of the Penal
only cover influencing public decisions; Code) and corporate criminal liability (Sections
• introduce regulatory requirements for pre- 27 and 28 of the Penal Code). The Ministry has
ventative anti-corruption work and rules not confirmed that such proposition(s) will be
specifically addressing the effect of compa- prepared and has not provided any time frames
nies self-reporting and co-operating with the for when such follow-up may happen.
enforcement authorities; and
• make changes to ensure that fines are calcu-
lated in a transparent and more predictable
manner, including changes to provide more
information to the public about the use and
terms of penalty notices.
247 CHAMBERS.COM
Wikborg Rein Advokatfirma AS is headquar- rate governance and assists in the development
tered in Oslo and offers a full range of legal of compliance programmes within different ar-
services to domestic and international clients. eas of law. It also conducts integrity due dili-
The firm also has offices in Bergen, London, gence of various types of business partners and
Shanghai and Singapore. As Norway’s most conduct, advises on internal investigations and
international law firm, it is, together with its in- provides legal assistance to companies faced
ternational offices and collaborating law firms, with potential corporate criminal liability. At the
able to offer top-quality legal advice worldwide. Oslo office, the team consists of ten lawyers.
Wikborg Rein’s Compliance and Crisis Manage- Wikborg Rein is the preferred law firm for the
ment team assists private and public entities in Norwegian government (the Norwegian Minis-
preventing and detecting corruption and other try of Foreign Affairs) for compliance matters
economic crime or misconduct, both in Norway worldwide.
and abroad. The firm provides advice on corpo-
Authors
Elisabeth Roscher is a partner Geir Sviggum is a partner at
at Wikborg Rein’s Oslo office Wikborg Rein’s Oslo office and
and head of the firm’s chairman of the firm’s board of
Compliance and Crisis directors. He headed the firm’s
Management team. She is also Shanghai office from 2008 to
part of the firm’s Trade 2013 and was managing partner
Compliance and Sanctions team. Elisabeth’s international with overall responsibility for
main areas of practice are corporate Wikborg Rein’s international practice from
compliance systems, including anti-corruption, 2012 to 2016. Geir is ranked Band 1 by
anti-money laundering, international sanctions/ Chambers Europe within the Compliance
trade control, responsible business conduct category. His compliance speciality focuses
and human rights, private investigations and primarily on anti-bribery and crisis
crisis management and criminal law (in management, criminal law consequences and
particular, corporate criminal liability). Elisabeth civil disputes triggered by potential
was ranked among the top three compliance misconduct. He headed the largest compliance
lawyers in Norway in Norwegian Financial crisis matter in the Nordics in 2019 and 2020
Daily’s annual lawyers survey in 2022. She is (the investigation into the so-called Fishrot files
also ranked by Chambers Europe within the in Namibia).
Compliance category. Elisabeth was previously
a senior public prosecutor with the Norwegian
National Authority for Investigation and
Prosecution of Economic and Environmental
Crime.
248 CHAMBERS.COM
Tine Vigmostad is a senior Kristin Nordland Brattli is a

lawyer on Wikborg Rein’s senior lawyer on Wikborg Rein’s
Compliance and Crisis Compliance and Crisis
Management team, as well as Management team, as well as
the firm’s Trade Compliance and the firm’s Trade Compliance and
Sanctions team. Tine provides Sanctions team. Kristin focuses
advice within a wide range of issues relating to on anti-corruption, anti-money laundering,
corporate compliance and crisis management. international sanctions as well as responsible
On the preventative side, these cases involve, business conduct/human rights. Kristin has
inter alia, advising on the implementation of handled several cross-border private
compliance programmes, anti-corruption and investigations and crisis management cases,
risk-mitigating measures, and third-party and she also assists with setting up
management. On the responsive side, she has compliance programmes and advising on
worked on several international investigations preventative corporate compliance measures.
and headed crisis management teams handling Previously, Kristin has worked with
co-ordination between investigators, legal international trade law in the Norwegian
advisers in several jurisdictions and advisers Ministry of Foreign Affairs and she also has
within other disciplines. worked in-house in a large financial institution
on anti-money laundering and sanctions
matters.

Dronning Mauds gate 11
0250 Oslo
Norway
Tel: +47 22 82 76 65
Email: elr@wr.no
Web: www.wr.no
249 CHAMBERS.COM
POLAND
Lithuania

Poland Belarus
Contributed by: Warsaw

Jarosław Majewski
DeBenedetti Majewski Szcześniak Kancelaria Czech Ukraine
Prawnicza Sp.k. see p.254 Republic
Slovakia
The Law That is to Tighten up Criminal or accepting an offer or a promise of such

Liability for the Crime of Bribing a Public benefits, in consideration for performing an
Officer is Going to Enter into Force? act or omitting to perform an act in the func-
Corruption and bribery are multi-dimensional tions they perform;
phenomena that penetrate various spheres of • undertaken in the course of business activi-
social life. These phenomena take various forms, ties that involve performing certain obliga-
making it very difficult to define them precisely. tions towards a public authority (institution) in
Polish law does not have one overall legal defi- connection with directly or indirectly prom-
nition of “bribery” or “corruption” that would be ising, offering or giving any unauthorised
binding within the entire legal regime. However, benefits to a person leading a non-public
the statutory definition of “corruption” provided finance unit, or working for any such unit in
in Article 1 Section 3a of the Act on the Central any capacity, or to any other person, in con-
Anti-corruption Bureau of 9 June 2006, could be sideration for performing an act or omitting to
treated as a point of reference, since the Central perform an act, in breach of their obligations
Anti-corruption Bureau is constituted of special and constituting a reciprocity that would be
intelligence forces established to fight corruption detrimental to society; or
in public and economic life, in particular to iden- • undertaken in the course of business activi-
tify, prevent and reveal corruption-related crimes ties that involves performing certain obliga-
in the areas of state institutions and local govern- tions towards a public authority (institution)
ment bodies, economic trade, the organisation of in connection with a person leading a non-
elections and referendums, the financing of politi- public finance unit, or working for any such
cal parties, sporting competitions and the trade unit in any capacity, demanding or accepting,
in medicines and medicinal products, as well as directly or indirectly, any unauthorised ben-
to investigate the perpetrators of such crimes. efits, or accepting an offer or promise of such
Pursuant to this definition, corruption is an act: benefits for themselves or for any other per-
son, in consideration for performing an act or
• involving any person, directly or indirectly, omitting to perform an act in breach of their
promising, offering or giving any unauthorised obligations and which constitutes a reciproc-
benefits to a public official in return for this ity that would be detrimental to society.
person, or any other person, performing an
act or omitting to perform an act in the func- In view of the high social harmfulness, various
tions they perform; legal regimes fight back against corruption and
• involving a public official, directly or indirectly, bribery using various measures, including legal
demanding or accepting any unauthorised ones. As part of the legal solutions that, directly
benefits for themselves or any other person, or indirectly, aim to counteract corruption and
250 CHAMBERS.COM
POLAND Trends and Developments
Contributed by: Jarosław Majewski, DeBenedetti Majewski Szcześniak Kancelaria Prawnicza Sp.k.
bribery or reduce the risk of corruptive phe- to mean such acts for which the perpetrator may
nomena, both systemic and specific, criminal face criminal liability under Articles 228 and 229
law measures play a very important role. They of the CC. This is because of two factors: i)
include legal solutions setting out frameworks undoubtedly, for the state and society, it is the
for identifying, detecting and investigating the most destructive, and hence the most shameful
crimes of bribery and corruption, and then pun- type of corruption; and ii) the criminalisation of
ishing the perpetrators of these crimes. bribery in this sector of public life has the longest
history in Poland.
In Poland, as in many other countries, various
types of bribery or corruption, characteristic of On 7 July 2022, the Polish Sejm (lower cham-
various spheres of public and economic life, ber of Parliament), at the government’s initiative,
have been criminalised – either in the Polish resolved on the amendment introducing mate-
Criminal Code of 6 June 1997 (the CC) or in other rial modifications to the Criminal Code (“NCC
acts. As far as bribery is concerned, the scope of Amendment”). The Senat (higher chamber of
criminalisation includes, in particular, the crime Parliament) requested that the NCC Amend-
of bribing a public official (Articles 228, 229 § 1-5 ment be rejected in full but the Sejm rejected
of the CC), electoral bribery (Article 250a § 1-2 of the reservations of the Senat and on 2 December
the CC), bribery in business transactions (Article 2022 the President signed it. The NCC Amend-
296a § 1-4 of the CC), bribery in connection with ment will enter into force after the expiry of three
insolvency proceedings or seeking to prevent months following its announcement in the Jour-
bankruptcy (Article 302 § 2-3 of the CC), bribery nal of Laws. One of many modifications con-
in sports (Articles 46-48 of the Act on Sports of stitutes the tightening of criminal liability when
25 June 2010) and bribery in the area of market- the bribery of public officials concerns material
ing medicines and medical devices (Article 54 benefits with a value exceeding PLN200,000
of the Act on Refunding of Medicines, Special (approximately EUR42,500).
Dietary Product and Medical Devices of 12 May
2011). In all these instances, the substance of Acts related to the bribery of public officials are
bribery is defined as accepting a material or per- currently criminalised in the provisions of Arti-
sonal benefit, or a promise of such a benefit from cle 228 and Article 229 § 1-5 of the CC. The
another person, or requesting such a benefit in scope of criminalisation includes the acts of
exchange for a certain conduct, and granting or a public official in relation to the function they
promising to another person a material or per- perform, consisting of: accepting a material or
sonal benefit in exchange for certain conduct. personal benefit, or a promise of such a ben-
efit, or demanding such a benefit, or making
Although all forms of criminalisation of bribery the performance of a professional duty depend-
include various spheres of social life, the aver- ent on receiving such a benefit, or its promise,
age Polish citizen would associate bribery as a and acts consisting of granting or promising to
basis of criminal liability, with bribery of public grant a material or personal benefit to a public
officials in the first place. This is reflected not official in relation to the function they perform.
only in the everyday language, but also in the The concept of a person performing a public
language used by lawyers: in Polish, both in a function is quite broad. According to the statu-
common and legal sense, “bribery” is often used tory definition contained in Article 115 §19 of
251 CHAMBERS.COM
the CC, the people performing a public func- treated in a less severe way – they are punished
tion include public officials, members of a local with a fine, the restriction of liberty or imprison-
self-governing authority, anyone employed in ment from one month to two years (Article 228
an organisational unit with public funds, unless § 2 of the CC and Article 229 § 2 of the CC
they perform only service-related activities, as respectively). However, if a public official accepts
well as anyone else whose rights and obligations a bribe or a promise of a bribe in consideration
with respect to public activities are defined or for a conduct in breach of the law, or makes the
recognised by law or an international agreement performance of a professional duty conditional
binding on the Republic of Poland. The concepts upon receipt of a bribe or a promise of a bribe,
of material and personal benefit are also broadly or demands a bribe, then these actions are sub-
defined. A benefit is anything that can satisfy ject to more severe liability, namely, imprisonment
human needs (money, objects or services, as from one to ten years (Article 228 § 3 and 4 of the
well as distinction, honourable title, etc), and it is CC). An equally severe punishment is imposed
generally accepted that it concerns a benefit that on individuals who grant a bribe, or promise to
is “fraudulent”, “undue”, “unlawful”, etc. It does grant a bribe, in order to persuade a public offi-
not matter whether it concerns a benefit for the cial to breach the provisions of law, as well as
offender themselves, or for someone else. The on individuals granting or promising a bribe to
provisions of Articles 228–229 of the CC apply a public official for the breaching thereof (Article
both to the bribery of Polish public officials and 229 § 3 of the CC). Finally, where the object of
the bribery of public officials of foreign countries the bribe is a “benefit of substantial value”, the
or international organisations. penalty is the most severe and may be from two
to 12 years’ imprisonment, which applies both to
The criminal consequences of bribing a public a public official who accepts a bribe (Article 228
officer in Poland depend on the type of bribery. § 5 of the CC) and anyone who grants a bribe
to that person (Article 229 § 4 of the CC). While
The basic types of this offence include acts con- “benefit of substantial value” is not defined in the
sisting of a public official accepting a material or CC, the prevailing view in the literature on the
personal benefit, or a promise thereof, in relation subject is that it should be the same criterion as
to performing their function, and acts consisting Article 115 § 6 of the CC provides for “property
of granting or promising to grant a material or of substantial value” – ie, PLN200,000 (approxi-
personal benefit to a public official in relation to mately EUR42,500).
performing their function. Anyone who grants a
bribe to a public official (Article 229 § 1 of the Similar principles apply to the bribery of pub-
CC), along with any public official who accepts lic officials of foreign countries or international
a bribe (Article 228 § 1 of the CC), commits an organisations (Article 228 § 6 of the CC and Arti-
offence punishable by imprisonment from six cle 229 § 5 of the CC respectively).
months to eight years.
In the event of a conviction for those offences,
In cases of lesser gravity, when the social harm- the court is obliged, regardless of the penalty,
fulness of the act is not so material (for instance, to order the forfeiture of the subject-matter of
where the subject of the bribe constitutes a mate- the bribe, or its equivalent, and may also order
rial benefit of a minor value), the perpetrators are certain punitive measures against the offender
252 CHAMBERS.COM
(including a prohibition on holding a specific in Article 115 § 7 of the CC – ie, that the mate-
post, on pursuing a particular profession or eco- rial benefit of great value will be interpreted as a
nomic activity, the publication of the judgment benefit valued in excess of PLN1 million (approx-
and the award of a cash sum for a particular imately EUR212,500).
social purpose), as well as the forfeiture of any
items directly derived from the offence and ben- The idea behind introducing these changes was
efits (or their equivalent). justified by their authors in a very general and
succinct way. They argue that new types of the
The NCC Amendment provides for two material offence of bribery, provided for in Article 228 §
modifications to the provisions of the CC, crimi- 5a and Article 229 § 4a of the CC, are to be
nalising bribery of both Polish public officials and introduced due to the need to rationalise the
public officials of foreign countries or interna- criminal liability for the bribery of public officials,
tional organisations. First of all, the NCC Amend- while at the same time they emphasise that the
ment increases the upper limit of imprisonment existing solutions lack internal coherence and
provided for in Article 228 § 5 and Article 229 § do not properly reflect the great difference in the
4 of the CC, applicable when the object of the level of social harmfulness between bribery con-
bribe is a “benefit of substantial value” – from the cerning a material benefit of slightly more than
current 12 years to 15 years. The second, and PLN200,000 (EUR42,500) and bribery concern-
more significant change is that the NCC Amend- ing a material benefit counted in millions of PLN.
ment excludes the situations when the object of
the bribe is a “benefit of great value” from the The authors of the bill do not really try to explain
application of Article 228 § 5 and Article 229 § why criminal liability would also be tightened up
4 of the CC, and makes them subject to newly for acts concerning material benefits with a value
introduced provisions of law – just added to the exceeding PLN200,000 (EUR42,500) – ie, such
CC as its Article 228 § 5a and Article 229 § 4a acts that, pursuant to the NCC Amendment,
respectively. This modification aims materially to will be, as before, covered by the provisions of
tighten up the criminal liability. The provisions Article 228 § 5 and Article 229 § 4 of the CC,
of Article 228 § 5a and Article 229 § 4a of the explaining it away as being merely an adjust-
CC provide for a sentence of imprisonment from ment modification.
three to 20 years. When these provisions of law
enter into force, the penalty that the perpetra- Upon analysing the NCC Amendment, it seems
tors face for the offence will be almost twice as clear that the main purpose of the modifications
high as it is currently. The rather loosely speci- provided for therein is materially to tighten up
fied term, “benefit of great value”, has not yet criminal liability for many types of the offence.
been defined in the CC, and the NCC Amend- The modification to Articles 228 and 229 of the
ment does not introduce a statutory definition of CC as adopted by the Sejm nicely illustrates this
this term. From the official justification of the bill attempt. The changes introduced to the criminal
of the NCC Amendment prepared by the Polish law by the NCC Amendment seem to be tak-
government, it can be inferred that the drafters ing Poland in the wrong direction. No significant
assume that a “benefit of great value” mentioned arguments have been raised to justify the general
in the planned provisions would be understood tightening-up of criminal liability, especially given
similarly to a “property of great value” as defined that Polish criminal law is already quite strict.
253 CHAMBERS.COM
DeBenedetti Majewski Szcześniak Kancelaria firm for any difficult commercial situations, both
Prawnicza Sp.k. (DMS) is a transactional-litiga- in Poland and abroad. DMS acts as subcon-
tion boutique firm with 21 lawyers in Warsaw, tractor for many international law firms without
Poland. The firm specialises in corporate law, a Warsaw office, assisting with cross-border
private equity, M&A, bankruptcy/restructuring, M&A transactions, advising on local aspects of
litigation and mediation, as well as in criminal Foreign Corrupt Practices Act (FCPA)/Bribery
law. The firm’s experience in drafting compli- Act claims, and amending contracts in order to
cated transactions, tailored to the needs of very reflect aspects of Polish law and business.
demanding clients, means that it is the go-to
Author
Jarosław Majewski is a from the point of view of the nature of a legal
professor of criminal law, an problem, but also the internal regulations in
advocate and a partner – and is force in the organisation. What clients value
a renowned authority, in most are his legal knowledge, professional
particular in the sphere of experience, expertise and quality of legal
criminal law and banking. Prior assistance, as well as his care in their interests.
to forming the firm, he chaired legal He combines legal practice with academic
departments of Polish major financial work. He is the author and co-author of over
institutions. This experience enables him to 190 publications.
find optimum solutions for clients, not only
DeBenedetti Majewski Szcześniak

Kancelaria Prawnicza Sp.k.
Saski Crescent
ul. Królewska 16
00-103
Warsaw
Poland
Tel: +48 22 339 54 00

Fax: +48 22 339 54 01
Email: office@dms-legal.com
Web: www.dms-legal.com
254 CHAMBERS.COM
PORTUGAL
Law and Practice
Portugal
Spain
Contributed by:
Rui Patrício, Tiago Geraldo, Teresa Sousa Nunes Lisbon
and Juliana Vasconcelos Senra
Morais Leitão, Galvão Teles, Soares da Silva
& Associados see p.276
Contents
2.1 Bribery p.260
3. Scope p.263
5. Penalties p.266
Penalties p.269
255 CHAMBERS.COM
PORTUGAL Law and Practice
Contributed by: Rui Patrício, Tiago Geraldo, Teresa Sousa Nunes and Juliana Vasconcelos Senra,
Morais Leitão, Galvão Teles, Soares da Silva & Associados
1. Legal Framework for Offences • undue receipt of an advantage by a politi-

cal or high public official, punishable under
1.1 International Conventions Article 16 of Law 34/87, of July 16th;
Portugal has signed a number of conventions • passive and active corruption of political and
related to corruption and bribery, the most rel- high public officials, punishable under Articles
evant being: 17 and 18 of Law 34/87, of July 16th;
• active corruption in international trade and
• the Organisation for Economic Co-operation passive and active corruption in the private
and Development (OECD) Convention on sector, punishable under Articles 7, 8 and 9 of
Combating Bribery of Foreign Public Officials Law 20/2008 (29 January 2008), respectively;
in International Business Transactions (1997); • undue receipt of an advantage and passive
• the European Union Convention on the fight and active corruption in the context of sport
against corruption involving officials of the EU competitions, punishable under Articles 8,
or EU Member States (1997); 9 and 10-A of Law 50/2007, of August 31st,
• the European Union Convention on the Pro- respectively;
tection of the Financial Interests of the Com- • passive corruption of an individual serving in
munities and Protocols; the armed forces or other military forces for
• the Council of Europe Criminal Law Conven- the performance of an illicit action, punish-
tion on Corruption (1999); able under Article 36 of Law 100/2003, of
• the United Nations Convention against Trans- November 15th;
national Organized Crime (2000); and • active corruption of an individual serving in
• the United Nations Convention against Cor- the armed forces or other military forces,
ruption (2003). punishable under Article 37 of Law 100/2003,
of November 15th; and
Since 1 January 2002, Portugal has been a • submission of fraudulent accounts by the
member of the Council of Europe’s Group of manager or administrator of a commercial
States against Corruption (GRECO). company, punishable under Article 519-A of
Law 262/86, of September 2nd.
Portuguese legislation recognises the following Passive corruption can be defined as the request
basic criminal offences in the areas of bribery or acceptance of an undue advantage – patri-
and corruption: monial or not – conditional on the performance
of a certain action or omission (quid pro quo).
• undue receipt of an advantage by a public Active corruption is characterised by the offer
official, punishable under Article 372 of the or promise of an advantage of the same nature
Criminal Code; with the same purpose.
• passive and active corruption in the public
sector, punishable under Articles 373 and 374 Corruption provisions apply, regardless of the
of the Criminal Code; actual rendition of the undue advantage by the
• influence-peddling, punishable under Article corruptor or of its acceptance by the public offi-
335 of the Criminal Code; cial, politician, private worker, sportsperson, or
military official. The undue advantage may also
256 CHAMBERS.COM
be granted through an intermediary if there is islation, although case law and doctrine should
consent or ratification by the passive agent. be borne in mind.
The intended recipient of the undue advantage
is irrelevant. The provisions apply, regardless Article 372, paragraph 3, of the Criminal Code
of whether that advantage is intended for the and Article 16 of the Law 34/87, of July 16th,
public official, politician, private worker, sport- establishes that the provisions are not applica-
sperson, military official or for a third party, by ble when the conduct is socially adequate or in
indication of the former or with their knowledge. conformity with common customs and habits.
Corruption provisions are also applicable wheth- Even though there is no formal definition of what
er the action or omission contemplated by the conduct is socially adequate, it is possible to
corruptor is lawful – aligned with the passive identify a growing quantification of the offered
agent’s official duties – or unlawful – contrary advantages or invitations allowed in some sec-
to those duties. The penalty is, however, more tors of activity.
severe in the latter case.
Following some extent of media debate, the
Criminal offences of undue receipt of advantage Portuguese government issued its own Code
and corruption, whether active or passive, dis- of Conduct – approved by Resolution 53/2016,
play a unilateral and instantaneous structure, of September 21st, and updated by Resolution
meaning that the crime is performed merely by 184/2019, of December 3rd, both from the Min-
the action of each individual, regardless of the isters’ Council – establishing guidelines for the
recipient’s acceptance. Along the same lines, acceptance of gifts and invitations by members
when it comes to crimes of corruption, consum- of government and of their respective cabinets,
mation is not dependent on the occurrence of among others. According to these guidelines, an
the action or omission intended by the corrup- offer or invitation is considered capable of affect-
tor, deriving solely from the offer or promise of ing the impartiality and integrity required in the
an advantage – active corruption – or from the exercise of official duties if it has a value equal
solicitation or acceptance of that advantage – or superior to a benchmark figure of EUR150,
passive corruption. regarding one calendar year.
These conclusions derive from Articles 372, 373 Law 52/2019, of July 31st, regulating the con-
and 374 of the Criminal Code, Articles 16, 17 and duct of political and high public officials, estab-
18 of the law on corruption of political and high lishes similar guidelines regarding institutional
public officials and Articles 8, 9 and 10-A of Law offers and hospitalities.
50/2007, of August 31st, regarding bribery in the
context of sport competitions. Notwithstanding, guidelines include special
provisions in respect of invitations seen as con-
1.3 Guidelines for the Interpretation and solidated, normal social and political practices,
Enforcement of National Legislation invitations to events where the presence of a
There are no specific guidelines regarding the member of the government is of relevant public
interpretation and enforcement of national leg- interest and occasions involving official repre-
sentation of the Portuguese state.
257 CHAMBERS.COM
Another example of quantifications can be found Recently, Article 5 of Decree 167/XIV, approved
in the Code of Conduct of the Portuguese Foot- by Parliament, was deemed unconstitutional by
ball Federation’s Arbitration Council, which pre- the Constitutional Court. This decree, by altering
vents referees and other members of the national the Cybercrime Law – Law 109/2009, of Sep-
arbitration structure from accepting offers equal tember 15th – aimed to transpose the Directive
to or greater than EUR150 in national champion- (EU) 2019/713 of the European Parliament and of
ships, or EUR300 in international ones. the Council of 17 April 2019 on combating fraud
and counterfeiting of non-cash means of pay-
1.4 Recent Key Amendments to National ment. Article 5 would modify the current Article
Legislation 17 of that law, by granting the Public Prosecution
As a result of the work of the Parliamentary powers to seize email messages in the course
Commission for Transparency, Law 52/2019, of of investigations. Following the request of a pre-
July 31st, put forward an exclusivity obligation emptive constitutional review by the President,
while in public office which applies to political or grounded notably on the lack of judicial inter-
high public officials. This same law also estab- vention, the Constitutional Court deemed that
lished a duty to present, in a single document to norm to be unconstitutional, due to the viola-
be accessible online, a declaration of all income, tion of the fundamental right of confidentiality
assets and liabilities, including every act and of correspondence and of the right to privacy,
activity that could lead to incompatibilities and in articulation of the proportionality principle
impediments. and the constitutional guarantees of defence
in criminal proceedings. Furthermore, after a
Law 58/2021, of August 31st, the recently lengthy formulation process, the Portuguese
altered Law 52/2019, of July 31st, add to the list Council of Ministers has recently approved the
of mandatory revelations for individuals on the National Anti-corruption Strategy 2020–2024
affiliation or any sort of participation in entities of (Estratégia Nacional de Combate à Corrupção
an associative nature, as long as that announce- 2020–2024) Resolution 37/2021, of April 6th.
ment does not imply the divulgement of consti- The document provides a set of programmatic
tutionally protected data, namely, related to the preventative and repressive measures that aim
political or high public official’s health, sexual to ensure a more uniform and efficient applica-
orientation, union membership and religious or tion of anti-corruption mechanisms, anticipating
political convictions (circumstances in which the the publication of several and significant legisla-
revelation is merely voluntary). tive alterations. It has now been transposed into
legislation through the approval and entry into
Under the Organic Law 4/2019, of September force of Law 94/2021, of December 21st, which
13th, the Entity for Transparency was officially revises and amends several laws relevant to the
created as the body responsible for, among oth- anti-corruption regime.
er tasks, the monitoring and assessment of the
truthfulness of the previously indicated income Some relevant examples of the measures includ-
and asset declarations issued by holders of ed in the National Anti-corruption Strategy are:
Political Positions and High Public Offices.
• Preventative measures:
258 CHAMBERS.COM
(a) the implementation of educational pro- corruption;

grammes for active citizenship, through (f) implementation of a plea-bargaining
the introduction of the subject in primary mechanism during the trial stage, rooted
and secondary school curriculums; in a free, global and unreserved confes-
(b) the adoption of maintained and continued sion of the facts for which the defendant
programmes of public compliance within was charged;
the public administration, including the (g) the uniformisation of the possibilities of
establishment of reporting channels; waiving the penalty, making it mandatory
(c) the creation of the Preventative Mecha- when the crime is denounced before the
nism of Corruption and related offences beginning of the criminal procedure;
(Mecanismo de Prevenção da Corrupção (h) the uniformisation of the instances of pen-
e da Criminalidade Conexa), an independ- alty mitigation, applicable to the accused
ent entity with monitoring and sanctioning who decisively co-operates in the discov-
faculties, destined to assure the efficiency ery of the truth;
of the national preventative anti-corrup- (i) amendment of the Cybercrime Law (Lei do
tion policies. Law 109-E/2021, of De- Cibercrime) with the intention of regulat-
cember 9th created and established the ing investigative methods in a digital set-
general regime of this mechanism; and ting, namely, online searches; and
(d) reinforcement of the powers granted to (j) transposition of the Directive (EU)
the Court of Auditors (Tribunal de Contas), 2019/1153 of the European Parliament
namely, through the expansion of its juris- and of the Council, of 20 June 2019,
diction before entities whose activities are that aims to facilitate the use of financial
mainly financed by public funding. and other information for the prevention,
• Repressive measures: detection, investigation or prosecution of
(a) the creation of specific procedural regula- certain criminal offences.
tions for legal persons, namely, regarding
enforcement measures; As depicted by the foregoing list, the implemen-
(b) definition of the criminal liability of legal tation of the aforementioned strategy has intro-
persons for the crimes of undue receipt duced significant changes to the current criminal
of advantage, and active and passive procedure panorama, and will continue to do so,
corruption committed by political or high particularly in the field of criminal compliance,
public officials, punishable under Law corporate criminal liability and plea-bargaining
34/87, of July 16th; mechanisms.
(c) the uniformisation of the general regime
of criminal liability of legal persons; As forecasted by the National Anti-corruption
(d) extension of the statute of limitation for Strategy and as required by EU law, the rightful
some criminal offences; legislative process of transposition of the Direc-
(e) extension of the scope of the provisional tive (EU) 2019/1937 on the protection of persons
suspension of criminal procedures, pro- who report breaches of EU law – the so-called
vided for by Article 9 of Law 36/94, of “whistle-blowers” – has taken place, through
September 29th, in order to include the Law 93/2021, of December 20th, which has
crimes of undue receipt of advantage and recently come into force in June 2022. It entails
259 CHAMBERS.COM
several innovative duties for legal persons based Hospitality and promotional expenditures, as
in Portugal with over 50 employees, including, well as facilitation payments, may fall within
inter alia, the duty to develop and implement an the category of a bribe, particularly in contexts
internal code of conduct, a training programme where they may be regarded as compensation
and reporting channels. for the action or omission to be performed.
In 1.3 Guidelines for the Interpretation and

2. Classification and Constituent Enforcement of National Legislation, some
Elements remarks were made about the demand of social
inadequacy of the undue advantage. As previ-
2.1 Bribery ously noted, certain types of conduct are exclud-
A bribe – an undue advantage – can be defined ed from criminal relevance if they are considered
as a patrimonial or non-patrimonial advantage, to be socially adequate and in line with habits
regardless of its nature, that aims to benefit the and normal practices. Each advantage must be
one who receives it without any legal ground or analysed in a case-by-case assessment, under a
justification. “reasonableness” standard, bearing in mind the
concrete circumstances of the case, namely, the
As noted in 1.2 National Legislation, the undue sector in question, the context and the parties
advantage may be offered or given by the cor- involved.
ruptor, or an intermediary, directly to the person
intended to be corrupted – the public official, Failure to prevent a bribe is not a criminal offence
politician or private worker. However, it can also per se, but if an individual provides material or
be entrusted to a third party, when requested or moral aid to the perpetrator of the offence, they
consented by the corrupted person. may be criminally liable for undue receipt of
advantage or corruption as an accomplice. In
As described in 1.2 National Legislation, the addition, as established by Article 11, paragraph
solicitation or acceptance of a bribe is deemed 2 of the Criminal Code, companies may be held
to be passive corruption. responsible for bribery-related offences if those
offences occurred within their organisation (ie,
When public officials or political figures are if they did not have appropriate mechanisms in
involved, bribery may qualify as an undue receipt place to prevent such an offence from occur-
of an advantage, punishable under Article 372 ring).
of the Criminal Code and Article 16 of the Law
on Crimes of the Responsibility of Political Offi- While there had existed a disconnection
cials. In this scenario, the criminalised behaviour between the Criminal Code and Law 34/87, of
is always unilateral and instantaneous; it is not a July 16th, which prevented legal persons from
condition that the promise or offer, solicitation or being criminally liable in cases when the undue
acceptance be predetermined to the attainment receipt or acceptance of advantage is solicited
of a certain action or omission on behalf of the or accepted by a political or high public official,
public official. an amendment by Law 94/2021, of December
21st, has solved this incongruity.
260 CHAMBERS.COM
Article 6-A of this law prescribes that legal per- undue advantage to a private-sector worker, or
sons may be held liable for receiving or offer- to a third party with their consent or ratification in
ing unlawful advantages, applied in conjunction order to obtain an action or omission constitut-
with Article 16 which criminalises bribes in this ing a violation of the private worker’s profession-
context (as well as for crimes of active corrup- al duties. Attempted corruption is punishable in
tion, in conjunction with Article 18). This change this situation. When the action or omission per-
was brought about by the implementation of the formed by the private-sector worker in return for
National Anti-corruption Strategy 2020-2024. the undue advantage is liable to distort competi-
tion or cause economic losses for third parties,
It is important to add that bribery of foreign pub- the maximum penalty is applicable.
lic officials is also criminalised. Under Article 7 of
Law 20/2008, of April 21st, active corruption is 2.2 Influence-Peddling
punishable in the context of international com- Influence-peddling, provided for in Article 335
merce whenever an individual, acting on their of the Criminal Code, is a criminal offence of
own behalf or through an intermediary, gives a general nature for which any person – public
or promises an undue advantage to a national official or not – may be held liable.
or foreign public official, to an official from an
international organisation, or to a third party with This crime is committed by the subject who,
consent or ratification from the corrupted person directly or through an intermediary, promises to
themselves, as a means to obtain or maintain a offer to, or offers, an advantage to a third per-
business, a contract or another undue advan- son – the “peddler” – so that they abuse their
tage in international commerce. However, it influence, actual or supposed, before any pub-
should be noted that Transparency International lic entity. The crime is equally committed by the
has identified the enforcement of foreign bribery subject who, directly or through an intermediary,
legislation as one of the weaknesses of Portu- solicits or accepts such an advantage as com-
gal’s anti-corruption legislation, in their report pensation for the abuse of their actual or sup-
titled Exporting Corruption 2022. posed influence before any public entity.
Under Article 8 of the same law, passive cor- Law 94/2021, of December 21st, has broadened
ruption is punishable whenever a private-sector the scope of this criminal offence by clarifying
worker, acting on their own behalf or through that public entities, either national or internation-
an intermediary, demands or accepts, for them- al, are included, as well as by further criminalis-
selves or for a third person, an undue advantage, ing the giving or promising of such advantages,
or the promise thereof, to perform an action or whether these constitute patrimonial assets or
an omission constituting a violation of their pro- not.
fessional duties.
Bribery between private parties in a commercial Other than the crime of document forgery, pro-
setting, or any other, is also covered under Article vided for in Article 256 of the Criminal Code and
9 of the same law. Active corruption is punish- punishable by imprisonment for a period of up
able whenever an individual, acting on their own to five years, Article 379-E of the Portuguese
or through an intermediary, gives or promises an Securities Code currently includes the crime of
261 CHAMBERS.COM
capital investment fraud, which encompasses role due to a special bond, judiciary profession-
the use of false or wrongful information in capital als and those working in its supervisory organs,
investment operations launched by public com- arbiters, interpreters and others working in the
panies (ie, companies whose shares are listed context of the justice system. Also included in
and traded on a stock exchange market). The this definition are workers of companies operat-
maximum penalty amounts to eight years. Neg- ing public services under a concession agree-
ligent behaviour is also punishable, although it ment, of regulatory entities, of other states and
leads to a reduction of the applicable penalty of international organisations governed by pub-
by half. lic international law, regardless of their national-
ity, as well as anyone who holds office who is
The General Regime for Credit Institutions and employed temporarily by a public administrative
Financial Companies establishes as a regulatory or jurisdictional authority.
offence (Article 211 (1-g)) the forgery of account-
ing and the lack of organised accounting, as well It is crucial to be aware of the leading role played
as the breach of the applicable accounting rules by public officials in some relevant crimes.
determined by law or by the Bank of Portugal.
• Embezzlement (peculato) is a specific crime
The Commercial Societies Code has also includ- (ie, a crime which can only be punished by an
ed an amendment, through Law 94/2021, of author of certain characteristics), punishable
December 21st, introducing the crime of sub- by up to eight years of imprisonment under
mission of fraudulent accounts by the manager Article 375 of the Criminal Code. This offence
or administrator of a commercial company, now may be committed by public officials who
provided for in Article 519-A. unlawfully appropriate, for their own or some-
one else’s gain, money or any movable or
2.4 Public Officials immovable property or animal, either public or
Article 386 of the Criminal Code provides a very private, that is in their possession or is acces-
broad definition of “public official” for crime- sible to them due to their public functions.
related purposes, even more so than in the pre- • Extortion by a public official (concussão), pro-
vious version, now amended by Law 94/2021, vided for in Article 379 of the Criminal Code,
of December 21st. is punishable by up to two years of imprison-
ment.
This vast concept encompasses not only politi- (a) This crime is committed by a public
cians, civil servants, administrative agents, arbi- official who, while performing their duties
trators, jurors and experts, but also members or exercising powers deriving therefrom,
of managing or supervisory bodies or workers by themselves or through an intermedi-
of state-owned or state-related companies – ary, receives any undue compensation
including private companies whose capital is for themselves, for the state or for a third
mainly held by the state or state-owned entities. party, by inducement of error or exploita-
Furthermore, with the recent amendment in the tion of a victim’s mistake.
context of the National Anti-corruption Strategy (b) Article 377 of the Criminal Code criminal-
2020-2024, the concept was extended to those ises the conduct of taking an economic
serving in the military, those fulfilling a public advantage while in public office, punish-
262 CHAMBERS.COM
ing it by up to five years of imprisonment. These limitation periods are, however, subject
This crime may be committed by a public to normal suspension and interruption clauses.
official who, during a legal transaction,
and with the intention of obtaining an There has been some recent controversy, cata-
unlawful economic participation for lysed by the media coverage of highly publicised
themselves or a third party, wholly or cases, regarding the beginning of the running
partially damages the public interest that of the limitation period in relation to crimes of
they have the duty to manage, supervise, corruption. Briefly put, some public prosecutors
defend or carry out. and courts have interpreted the Criminal Code
• Although there is no specific offence address- as providing that the limitation period in crimes
ing the issue of “favouritism” on behalf of of corruption only starts to run from the moment
public officials, the general crime of abuse of of the rendition of the undue advantage to the
power, as provided for in Article 382 of the corrupted agent, and not from the moment of the
Criminal Code, determines that any public promise of that rendition; ie, when that promise
official who abuses their official powers in occurs. The Portuguese Constitutional Court, in
order to secure an unlawful advantage for the context of a concrete constitutional review,
themselves or a third party, or to damage has deemed the relevant legal norms, when sub-
another, is to be punished by up to three ject to this second interpretation, as unconstitu-
years of imprisonment (if no other more tional, for violating the constitutional principle of
severe penalty is applicable under other pro- criminal legality. Nonetheless, any such decision
visions). does not have a general binding effect.
2.5 Intermediaries 3.2 Geographical Reach of Applicable

According to the general principles that govern Legislation
Portuguese criminal law, provided for in Arti- As a rule, Portuguese criminal law is applicable
cles 26 and 27 of the Criminal Code, interme- to all acts committed in Portuguese territory,
diaries may qualify as joint principals, subject regardless of the offender’s nationality, accord-
to the same maximum penalty provided for the ing to Article 4 of the Criminal Code.
perpetrator, or accomplices, in which case the
maximum and minimum limits of the sentence Law 20/2008, of April 21st, which created the
provided for the principal, shall be reduced by criminal regime for corruption in international
one third, depending on their level of involve- commerce and in the private sector, is also
ment in the commission of the offence. applicable to:
• the crime of active corruption to the detriment

3. Scope of international commerce, to acts commit-
ted by Portuguese or foreign citizens who are
3.1 Limitation Period found in Portugal, regardless of the location
The crimes referred to in 1.2 National Legisla- where the punishable action took place; and
tion have a general limitation period of 15 years. • the crimes of passive and active corruption
in the private sector, regardless of the loca-
tion where the action took place, when the
263 CHAMBERS.COM
perpetrator who gives, promises, demands liability. Article 6-A of Law 34/87 of July 16th now
or accepts the bribe or the promise of a bribe states that legal persons and similar entities may
is a public official or a political official or, if be liable for the offences of receiving or offering
of Portuguese nationality, is an official of an an undue advantage, as well as the crime of pas-
international organisation. sive corruption.
Other than the specific rules that govern Portu- Article 11 of the Criminal Code remains the core
guese legislation on the bribery of foreign pub- disposition when it comes to the criminal respon-
lic officials within international commerce (which sibility of legal persons. It has been through
only require the active perpetrator to be of Por- several amendments in the past years, includ-
tuguese nationality), Portuguese law shall apply, ing that of Law 34/87. It includes an extended
notably, when the crime: list of crimes for which legal persons may be
liable. This list must be completed with provi-
• is perpetrated by Portuguese citizens against sions included in separate legislation.
other Portuguese citizens who live in Portu-
gal; In these offences, corporate liability may coex-
• is perpetrated by Portuguese citizens or by ist with individual criminal responsibility, applied
foreigners against Portuguese citizens, if the to exactly the same set of facts. A legal person
perpetrator is to be found in Portugal and if may be held liable (without excluding the indi-
the facts are punishable in the territory where vidual liability of the material perpetrators) if the
they took place (unless the punitive power is relevant offence is committed in their name and
not carried out in that place) and the extradi- according to the collective interest by individuals
tion cannot be performed or if it is decided who occupy a position of leadership, or by an
not to surrender the offender as a result of a individual who acts under the authority of some-
European arrest warrant or other international one occupying a position of leadership, due to
agreement binding Portugal; or a violation of the monitoring and control duties
• is perpetrated by or against a legal person pertaining to the latter.
with its headquarters in Portuguese territory.
Irrespective of its former or current owners or
Portuguese criminal law is also applicable to shareholders, corporate liability is held by the
acts committed abroad in cases affected by same legal entity through which an offence has
international conventions to which Portugal is been committed. This liability may not be trans-
bound. mitted to another entity, due to the constitutional
principle according to which punitive liability is
3.3 Corporate Liability personal and non-transferable. Nonetheless, the
While the general regime, despite exceptions, division or fusion of the criminally liable legal
used to provide that only individuals would be person does not determine the extinction of that
criminally responsible, the recent amendment liability, which is transferred to the resulting legal
introduced by Law 94/2021 of December 21st person.
has established the regime of criminal responsi-
bility of legal persons, and thus has clarified and It is also relevant to note that in some circum-
broadened the scope of the norms on corporate stances the people occupying a leadership posi-
264 CHAMBERS.COM
tion in the relevant company may be asked to programme, according to Article 90-B of the
pay the fine for which the company was con- Criminal Code.
victed, in subsidiary terms, if the latter does not
have the financial capacity to do so. A company may also avoid liability if it is able
to demonstrate that the criminally relevant act
Despite these amendments, Transparency Inter- or omission was not perpetrated in its name or
national’s report “Exporting Corruption 2022 – according to collective interest and that there
Assessing Enforcement of the OECD Anti-Brib- were no violations of any duties of due vigilance
ery Convention” still identifies deficiencies in the or control by the people with responsible leader-
law on the liability of legal persons as one of the ship positions.
main handicaps of national legislation when it
comes to the anti-bribery regime. As mentioned in 1.3 Guidelines for the Inter-
pretation and Enforcement of National Legisla-
tion and 2.1 Bribery, conduct is excluded from
4. Defences and Exceptions criminal legal relevance if it is considered to be
socially adequate and in line with habits and nor-
4.1 Defences mal practices.
A defendant charged with corruption under the
Criminal Procedure Code has the same defence 4.2 Exceptions
rights as any another defendant in criminal pro- Law 93/2021 of December 20th introduces one
ceedings, based on the fundamental principle of exception to the defence of whistle-blowers,
the presumption of innocence and its interplay clarifying that they may be criminally liable upon
with the in dubio pro reo principle. divulging an infraction, if they have obtained or
accessed the information on the matter through
However, as further explained in 6.5 Incentives criminal means, as stated by Article 24.
for Whistle-Blowers, Article 374-B of the Crimi-
nal Code, regarding crimes of undue receipt of When it comes to members of parliament, as
an advantage and corruption in the public sec- well as regional government members of parlia-
tor, establishes that, under certain conditions, ment and government members, their detention
penalties can be mitigated or waived altogether. or imprisonment for these crimes is dependent
Law 93/2021 has furthermore transposed the EU on permission from the competent Parliamen-
Whistleblower Protection Directive into national tary body.
law, as will be explored further below.
The criminal liability of legal persons may be There are no exceptions to the defences stated
excluded when the material perpetrator has in 4.1 Defences.
acted against express orders or instructions
given by people with proper authority within the 4.4 Exempt Sectors/Industries
organisation. Legal persons may also mitigate There are no sectors or industries exempt from
the penalties they will incur if they demonstrate the aforementioned offences, apart from those
that they have adopted an internal compliance which have been previously detailed relating to
the state and public legal persons (eg, in 1.3
265 CHAMBERS.COM
Guidelines for the Interpretation and Enforce- years of imprisonment, and other aggravating
ment of National Legislation). circumstances are present.
4.5 Safe Harbour or Amnesty Programme Passive corruption crime in the public sector
There are no sectors or industries exempt from If the undue advantage is conditional on the
the aforementioned offences, apart from those obtainment of an illicit act or omission by the
which have been previously detailed relating to public official:
the state and public legal persons.
• for individuals – imprisonment between two
and eight years; and
5. Penalties • for legal persons – a fine of between 120 and
960 days.
5.1 Penalties on Conviction
Public Sector If the undue advantage is conditional on the
Undue advantage in the public sector obtainment of an act or omission which is not
• For individuals who solicit or accept an undue illicit by the public official:
advantage – imprisonment for up to five
years, in the case of political office holders, or • for individuals – imprisonment for between
a fine of up to 600 days. two and five years; and
• For legal persons who solicit or accept an • for legal persons – a fine of between 120 and
undue advantage – a fine of up to 600 days. 600 days.
• For individuals who give or promise to give
an undue advantage – imprisonment for up to There are provisions aggravating these penalties
three years or a fine of up to 360 days. in certain circumstances.
• For political officeholders who give or prom-
ise to give other political office holders an Active corruption crime in the public sector
undue advantage – imprisonment for up to If the undue advantage is conditional on the
five years. obtainment of an illicit act or omission by the
• For legal persons who give or promise to give public official:
an undue advantage – a fine of up to 360
days. • for individuals – imprisonment for between
• For individuals who cause harm to a matter two and five years; and
they are in charge of managing or overseeing • for legal persons – a fine of between 120 and
in the context of their public duties – impris- 600 days.
onment for up to five years.
If the undue advantage is conditional on the
There are provisions aggravating these penalties obtainment of an act or omission which is not
in certain circumstances. illicit by the public official:
Additionally, public officials may also be banned • for individuals – imprisonment for up to five
from public office from two to eight years, if they years or a fine of up to 360 days; and
commit a crime which has a penalty of over three • for legal persons – a fine of up to 360 days.
266 CHAMBERS.COM
Attempted active corruption is punishable. There • for individuals – imprisonment for up to five
are provisions aggravating these penalties in years or a fine of up to 600 days; and
certain circumstances. • for legal persons – a fine of up to 600 days.
Private Sector Attempted active corruption is punishable.

Passive corruption crime in the private sector
If the undue advantage is conditional on the For legal persons, an additional penalty enforc-
obtainment of an act or omission against pro- ing the adoption of a compliance programme
fessional duties: may be determined.
• for individuals – imprisonment for up to five International Commerce

years or a fine of up to 600 days; and Active corruption crime in international
• for legal persons – a fine of up to 600 days. commerce
• For individuals – imprisonment for between
If the action or omission on which the advantage one and eight years.
is conditional is suitable to cause a distortion of • For legal persons – a fine of between 120 and
competition or an economic loss for third par- 960 days.
ties:
Political or High Public Officials
• for individuals – imprisonment for between Undue advantage to a political or high public
one and eight years; and official
• for legal persons – a fine of between 120 and • Soliciting or accepting an undue advantage is
960 days. punishable by imprisonment for between one
and five years.
For legal persons, an additional penalty enforc- • Offering or promising to offer an undue
ing the adoption of a compliance programme advantage to a political or high public official
may be determined. is punishable by imprisonment for up to five
years or with a fine of up to 600 days.
Active corruption crime in the private sector
If the undue advantage is conditional on the Passive corruption crime by a political or high
obtainment of an act or omission contrary to public official
professional duties: • Soliciting or accepting an undue advantage
intended as compensation for the practice
• for individuals – imprisonment for up to three of an illicit action or omission is punishable
years or a fine of up to 360 days; and by imprisonment for between two and eight
• for legal persons – a fine of up to 360 days. years.
• Soliciting or accepting an undue advantage
If the action or omission on which the advantage conditional on the obtainment of an action
is conditional is suitable to cause a distortion of or omission that is not illicit is punishable by
competition or an economic loss for third par- imprisonment for between two and five years.
ties:
267 CHAMBERS.COM
Active corruption crime by a political or high to corrupt or who they have corrupted, or an
public official official who hierarchically exercises a position
• Offering or promising to offer an undue of command, the minimum of the applicable
advantage to a political or high public offi- penalty will be doubled.
cial conditional on the obtainment of an illicit
action or omission is punishable by imprison- Sports
ment for between two and five years. Undue advantage in sports
• Offering or promising to offer an undue • For a sports agent who, in the exercise of its
advantage conditional on the obtainment of tasks or because of them, solicits or accepts
an action or omission which is not illicit is an undue advantage or its promise – impris-
punishable by imprisonment for up to five onment for up to five years or a fine of up to
years. 600 days.
• The crime of active corruption committed by • For legal persons, qualified as sports agents,
a political or high public official is punishable who solicit or accept an undue advantage – a
with the same penalties as those ascribed to fine of up to 600 days.
the crime of passive corruption. • For individuals who offer or promise to offer
an undue advantage to a sports agent –
Armed Forces and Military Officials imprisonment for up to three years or a fine of
Passive corruption by a member of the up to 360 days.
armed forces or a military official • For legal persons who offer or promise to give
• Soliciting or accepting an undue advantage an undue advantage to a sports agent – a fine
conditional on the practice of an action or of up to 360 days.
omission contrary to military duties and
resulting in peril to national security is punish- Passive corruption in sports
able by imprisonment for between two and • For a sports agent who solicits or accepts
ten years. and undue advantage or its promise con-
• If the corrupted agent, before performing ditional on the obtainment of an action or
the targetted action or omission, voluntarily omission intended to secure the alteration or
rejects the offer of advantage or its promise falsification of a result in a sport competition
or returns it, the penalty will be waived. – imprisonment for between one and eight
years.
Active corruption by a member of the armed • The minimum and maximum limits of the
forces or a military official penalties is aggravated by a third if the per-
• Offering or promising to offer an undue petrator is a sports director, referee, sports
advantage to a person in the armed forces, businessperson or legal person.
conditional on the obtainment of an action
or omission contrary to military duties and Active corruption in sports
resulting in peril to national security is punish- • Offering or promising to offer an undue
able by imprisonment for between one and advantage to a sports agent conditional on
six years. the obtainment of an action or omission
• If the corrupting agent is an official of supe- intended to secure the alteration or falsifi-
rior rank to the official who they attempted
268 CHAMBERS.COM
cation of a result in a sports competition – For more on this matter, see also the note on
imprisonment for between one and five years. Article 47 of the Criminal Code in 5.1 Penalties
• The limits of the penalties are aggravated by on Conviction.
a third if the undue advantage is intended for
a sports director, referee, sports businessper-
son or legal person. 6. Compliance and Disclosure
(For individual perpetrators, under Article 47 6.1 National Legislation and Duties to
of the Criminal Code, each day of the fine may Prevent Corruption
correspond to an amount between EUR5 and With the implementation of the National Anti-
EUR500, which the court determines accord- corruption Strategy 2020-2024 in Law 94/2021
ing to the economic and financial situation and of December 21st, several provisions altering
personal expenses of the convicted individual. various legislative pieces highlight the impor-
For legal persons, Article 90-B of the Criminal tance of implementing internal compliance pro-
Code establishes that each day of the fine cor- grammes in companies, both as deterrents to
responds to an amount between EUR100 and criminal activity and as means to diminish the
EUR10,000, which the court determines accord- risk of repeated criminal activity, when it has
ing to the economic and financial situation of occurred, thus arising as a particularly impor-
the convicted legal person and its expenses with tant preventative measure. The existence of
workers. In cases where the criminal provision such programmes may, for instance, serve as a
does not contemplate days of fine, but solely mitigating circumstance for the penalties to be
imprisonment, the rule regarding legal persons applied to the legal person.
is that one month of a prison sentence corre-
sponds to ten days of a fine.) 6.2 Regulation of Lobbying Activities
Lobbying activities have historically not been
5.2 Guidelines Applicable to the regulated in Portugal, with the discussion con-
Assessment of Penalties sidering the topic politically relevant recently
The minimum and maximum limits of penalties gaining traction. In 2021, three legislative pro-
may be aggravated if the bribe or undue advan- jects were introduced in Parliament as sugges-
tage offered is of a high or considerably high tions for a lobbying regulation. Due to the end
value. In certain circumstances, penalties may of the legislative term and the new elections for
also be mitigated. Parliament, these projects did not see the end
of the legislative lifecycle. Another project was
For instance, regarding the crimes of undue introduced in 2022 that attempts to regulate lob-
receipt of advantage and passive or active cor- bying.
ruption of public officials, the criminal code pro-
vides that the sentence may be waived when the A Commission on Transparency and the Stat-
perpetrator denounces the crime within 30 days ute of Members of Parliament has been created
of its occurrence, before the opening of criminal in 2019 with the incumbency of, among other
procedures, as long as they voluntarily return the tasks, preventing conflicts of interest when pri-
advantage given to them. vate entities wish to participate in defining and
implementing public policies and legislation – ie,
269 CHAMBERS.COM
lobbying. The Commission terminated its man- Furthermore, recent Law 93/2021, of December
date in March 2022, with no legislation on lob- 20th, has transposed the EU’s Whistleblower
bying having yet been issued. Protection Directive into national law, which
entered into force in June 2022. This new regime
6.3 Disclosure of Violations of Anti- encompasses all persons who, in the context of
bribery and Anti-corruption Provisions their professional activity, regardless of nature,
Portuguese law does not provide a general duty sector or remuneration, pass on criminally rel-
to report or denunciate private entities or individ- evant information to the authorities.
uals. Nevertheless, the failure to report imminent
bribery or corruption practices by those who Measures for the development and implemen-
assume a leading position within organisations, tation of reporting channels, internal to com-
and who are therefore bound by law to prevent panies or external, are further specified in the
such unlawful outputs, may lead to the liability of new regime. External reporting channels must
the company itself and/or of the omitting agent. be made available by the criminal police forces,
the Bank of Portugal, municipalities, the public
The Portuguese Companies Code provides that prosecution office, and other obliged entities.
the company’s statutory auditor and the mem-
bers of its supervisory board, as well as the Law 93/99, of July 14th, establishes generic
chairman of the audit committee of companies special measures for the protection of witnesses
with limited liability by shares, must disclose under criminal procedure that may be applicable
before the Public Prosecution office any criminal to those acting as whistle-blowers.
suspicions which have come to their knowledge
that may have relevance as crimes of a proce- Article 4 of Law 19/2008, of April 21st, deter-
dural public nature, such as corruption. mines that workers of the public administration
and of state-owned companies, as well as pri-
In some circumstances, the disclosure of crimi- vate-sector workers, who report offences they
nal suspicions to relevant authorities and/or become aware of in the course of their work or
internal supervisory bodies may be construed because of the exercise of their duties cannot be
as the essential content of the duty to act that jeopardised in any way, including by means of
discharges agents of possible criminal liability non-voluntary transfer or dismissal. These work-
for their omissions. ers have the right to remain anonymous until a
charge is brought and to request an irrefusable
6.4 Protection Afforded to Whistle- transfer to a different position once a charge is
Blowers brought.
There are several legal provisions granting a
waiver or mitigating the penalty for perpetrators The Central Department for Investigation and
who, under certain conditions, report the crime, Penal Action (Departamento Central de Investi-
under limited timeframes, or who have decisively gação e Acção Penal) has created a digital plat-
contributed to the gathering of evidence which form that allows the filing of anonymous com-
allows for the identification and capture of others plaints of crimes of fraud or corruption.
who are criminally liable.
270 CHAMBERS.COM
6.5 Incentives for Whistle-Blowers or omission intended by the corruptor takes

New Law 93/2021 of December 20th entails sev- place; or
eral protective measures which aim to incentiv- • as a political office holder, committing the
ise the use of reporting channels. The identity crimes provided for in Law 34/87, of July
of the whistle-blower is anonymised, protection 17th, reports the crime before criminal pro-
against retaliation is provided and, if retaliation ceedings are initiated, according to Article
occurs, it is deemed as a punishable offence. 19-A.
Whistle-blowers may also benefit from witness
protection measures, in general terms. The penalty is specially mitigated when the per-
petrator:
Article 8 of Law 36/94, of September 29th,
regarding measures to combat corruption and • until the conclusion of the court hearing, spe-
economic and financial crime, establishes a miti- cifically aids the investigation in gathering or
gation of penalty for corruption cases where a producing decisive evidence for the identifi-
defendant aids the investigation, gathering deci- cation or capture of others responsible;
sive evidence for the identification and capture • had performed the criminal act at the request
of others who are criminally liable. of a public official, either directly or by means
of an intermediary; or
Likewise, Article 374-B of the Criminal Code, • is a legal person that has implemented an
regarding crimes of undue receipt of an advan- internal compliance programme.
tage and corruption in the public sector estab-
lishes that, under certain conditions, penalties 6.6 Location of Relevant Provisions
can be mitigated or waived altogether. Regarding Whistle-Blowing
Law 93/2021 has transposed the EU Whistle-
The penalty may be waived when the perpetra- blower Protection Directive into national law.
tor:
Of the previously referred provisions relating to
• in the crime of passive corruption, has not the waiver or penalty mitigation, the following are
practised acts or omissions contrary to the worth mentioning: Article 374-B of the Criminal
duties of the office they have solicited the Code, Article 8 of Law 36/94, of September 29th,
advantage to, and voluntarily returns the Article 5 of Law 20/2008, of April 21st 2008, and
advantage or restores its value; Article 19-A of Law 34/87, of July 16th, 1987.
• in the crime of unlawful receiving or giving of
advantage, voluntarily returns the advantage The Data Protection Enforcement Agency
or restores its value; (CNPD) has issued a resolution (765/2009),
• voluntarily renounces the undue advantage granting special protection to whistle-blowers
previously accepted or returns it before the in relation to all sorts of criminal offences, not
act or omission intended by the corruptor just bribery and corruption.
takes place;
• withdraws their promise, refuses its offer-
ing or requests its restitution before the act
271 CHAMBERS.COM
7. Enforcement including bribery and corruption-related offenc-

es, is carried out by the Central Department of
7.1 Enforcement of Anti-bribery and Anti- Investigation and Prosecution (Departamento
corruption Laws Central de Investigação e Ação Penal), which
First and foremost, anti-bribery and anti-corrup- has nationwide jurisdiction to co-ordinate and
tion laws are subject to criminal enforcement. direct the investigation.
There is an independent administrative entity
called the Council for the Prevention of Bribery, National Anti-corruption Strategy 2020-2024
created under the umbrella of the Court of Audi- has anticipated the creation of the Preventative
tors, with the purpose of developing measures in Mechanism of Corruption and Related Offences
the field of the prevention of bribery and related (Mecanismo de Prevenção da Corrupção e da
offences. The Council, empowered merely with Criminalidade Conexa), an independent enti-
soft-law powers, has issued several instructions ty with monitoring and sanctioning faculties,
and recommendations, namely, asking public designed to assure the efficiency of the national
entities to prepare, apply and publicise bribery- preventative anti-corruption policies, working
prevention plans, as well as demonstrating how in co-operation with investigative units. It has,
they should assess potential conflicts of interest. however, not yet been specifically legislated on
or started its activity.
According to data from Directorate-General of
Justice Policies, between 2017 and 2021 there 7.3 Process of Application for
was a 42% increase in investigations of corrup- Documentation
tion. In addition to the powers generally endowed
to the Public Prosecutor’s office in any crimi-
7.2 Enforcement Body nal investigation, there are special provisions
By their nature, criminal laws against corrup- regarding the investigation entailing the breach
tion are enforced in the courts of law. The Pub- of secrecy of financial institutions, warranting a
lic Prosecutor’s office is the competent body to more effective collection of evidence by means
investigate any suspected corruption or bribery of requesting documentation and informa-
offences, aided by the Judiciary Police, particu- tion (Law 5/2002, of January 11th). Under Law
larly by the National Anti-Corruption Unit. 5/2002, of January 11th, any breach of banking
and professional secrecy must be ordered by
Currently, there is no specific enforcement body the judiciary authority conducting the proceed-
or entity specialised in these types of crime. Pub- ings. This order must identify the envisaged indi-
lic Prosecutors bear the general powers attrib- viduals and specify the information and docu-
uted to them by law to investigate any acts that ments to be surrendered, even if generically. The
may constitute a criminal offence in Portuguese request may also be made with reference to the
territory, without compromising the application accounts or transactions in relation to which
of rules that govern extraterritorial jurisdiction of information is needed.
Portuguese law.
The enforcement body has complete access to
Usually, the investigation of crimes of a violent the tax administration database. Financial insti-
nature, particularly complex or highly organised, tutions are required to provide the information
272 CHAMBERS.COM
requested within a period of five days (if the In cases involving active corruption crimes in the
information is available as computer data), or 30 public sector, Article 9 of Law 36/94, of Sep-
days (if the information is not available as com- tember 29th, establishes that the provisional
puter data). The latter timeframe is reduced to suspension of the procedure may be offered to
15 days if the suspects are detained in custody. a defendant when they have reported the crime
All documents not voluntarily rendered can be or when the Public Prosecutor considers them to
apprehended by court order. have made a decisive contribution towards the
unveiling of the truth. The suspension in such
7.4 Discretion for Mitigation cases requires fewer conditions; other than the
Portuguese law provides a mechanism of pro- defendant’s contribution, it is necessary only that
visional suspension of the enforcement proce- they are in agreement with that suspension and
dure, under Articles 281 and 282 of the Criminal that it is foreseeable that the compliance with the
Procedure Code and Article 9 of Law 36/94, of injunction and the rules of conduct imposed will
September 29th. be sufficiently deterrent to achieve the preven-
tion demands in the concrete case.
This mechanism is agreed between the Public
Prosecutor and the defendant, with a judge’s The suspension of the procedure can last up
concurrence, and it determines that the pro- to two years, during which time the running of
cedure will be suspended upon the defendant the limitation period is also suspended. If the
adhering to injunctions and specific rules of con- defendant complies with the set of injunctions
duct. The conditions that must be met in order and rules of conduct prescribed, the Public
to achieve that agreement are: Prosecutor dismisses the proceedings. In con-
trast, failure to comply with the terms agreed,
• the crime must be punishable with imprison- or recidivism, causes the process to resume its
ment for less than five years, or with a penalty course.
other than imprisonment;
• the agreement of both the defendant and the 7.5 Jurisdictional Reach of the Body/
offended party (when the offended party is Bodies
part of the procedure); See 7.2 Enforcement Body.
• the absence of a previous conviction for a
crime of the same nature; 7.6 Recent Landmark Investigations or
• the absence of previous provisional suspen- Decisions involving Bribery or Corruption
sion for a crime of the same nature; In recent years, there have been several promi-
• the absence of institutionalisation as a safety nent and high-profile cases of bribery or corrup-
measure; tion prosecuted and tried in Portuguese courts.
• the absence of a high level of guilt; and
• it must be foreseeable that the compliance • In “Operation Marquês”, considered by many
with the injunctions and the rules of conduct to be the biggest corruption case in Portu-
imposed is sufficiently deterrent to achieve gal’s modern history, a former Prime Minister
the prevention demanded in the concrete and the former CEO of one of the largest
case. Portuguese private banks (among other cor-
porate elites, namely, former chief executives
273 CHAMBERS.COM
of Portugal Telecom), were formally charged 8. Review

with several counts of corruption, money
laundering, document forgery and tax fraud, 8.1 Assessment of the Applicable
which were the charges significantly reduced Enforced Legislation
in the pre-trial decision. On 28 June 2019, the GRECO, which is the Coun-
• The “E-Toupeira” operation, related to alleged cil of Europe’s anti-corruption body, published
corruption practices in sports, began with the a compliance report on Portugal, assessing the
involvement of a major Portuguese football implementation of the 15 recommendations it
club that was later entirely dismissed from issued in a report adopted in December 2015.
any liability in the pre-trial stage. The GRECO concluded that minor improvements
• In the “Lex” operation, related to alleged cor- had been made by Portugal and that only one of
ruption practices in the judicial system, two the 15 recommendations had been implemented
former judges of the Lisbon Court of Appeals satisfactorily. The GRECO therefore concluded
were formally indicted. that the low level of compliance with the recom-
• The “CMEC” case, related to alleged corrup- mendations remained “globally unsatisfactory”.
tion practices in the energy sector, involved
top managers from major Portuguese com- The Second GRECO Interim Compliance Report,
panies operating in the energy sector and assessing the measures taken by the authori-
former ministers and secretaries of state from ties of Portugal to implement the recommenda-
the Portuguese government. tions issued in the Fourth Evaluation Report on
• The “Tutti-Frutti” investigation encompassed that country, was published on 12 April 2021.
many alleged crimes, such as corruption, In that report, it was once again concluded that
influence-peddling, abuse of power and Portugal had achieved only minor progress in
embezzlement, involving various Portuguese the fulfilment of recommendations previously
central and municipal political figures, several offered; only three of the 15 recommendations
companies and a known university professor. had been implemented satisfactorily and, of the
remaining recommendations, seven had now
7.7 Level of Sanctions Imposed been partly implemented and five remained not
Final decisions – with a res judicata effect – have implemented. The GRECO therefore concluded
not yet been reached in the cases referred to in that the current slightly improved level of com-
7.6 Recent Landmark Investigations or Deci- pliance with the recommendations is no longer
sions Involving Bribery or Corruption. Another “globally unsatisfactory”.
relevant and landmark case, “Face Oculta”,
already concluded, concerned an alleged cor- A Second Compliance Report by GRECO,
ruption ring designed to favour a private busi- issued in June 2022, assesses the measures
ness group linked to waste management, also taken by the authorities of Portugal to imple-
involving relevant public officials, where the ment the recommendations made in the Fourth
most severe penalty imposed was imprisonment Round Evaluation Report on Portugal, regarding
for 13 years. corruption prevention in respect of members of
parliament, judges and prosecutors. The report
addresses 15 recommendations made to Portu-
gal. It notes that the Committee for Transparency
274 CHAMBERS.COM
and the Statute of Members of Parliament has

made progress in ensuring the independence
of members of parliament, as well as on other
aspects under the oversight of the Council of
Europe, while some recommendations are only
partly implemented, or not implemented at all.

The National Anti-corruption Strategy 2020–
2024 will continue to be implemented as, for
instance, the Preventative Mechanism of Cor-
ruption and related offences (Mecanismo de
Prevenção da Corrupção e da Criminalidade
Conexa) is expected to come into force.
The European Commission has sent a letter of

formal notice to Portugal for incorrectly trans-
posing the fourth EU Anti-Money Laundering
Directive in 2021. It is to be expected that the
Directive will be duly transposed, and it must
also be taken into account that the EU’s Anti-
Money Laundering Package is expected to be
published soon, which will need to be reflected
in national legislation. The standstill on lobbying
regulation will likely continue to be discussed,
after a commission, which was created for the
purpose of developing standards on handling
matters related to the independence of mem-
bers of parliament and of the Parliament, has
terminated its mandate without having issued
any legislation or guidelines to regulate lobbying
activities. At least one legislative project, already
presented, will be discussed in Parliament within
the current legislative session.
275 CHAMBERS.COM
Morais Leitão, Galvão Teles, Soares da Silva & solutions that often challenge some of the most
Associados is a leading full-service law firm in conventional practices. With a team of over 250
Portugal, with a solid background of decades of lawyers at a client’s disposal, Morais Leitão is
experience. Broadly recognised, Morais Leitão headquartered in Lisbon and has additional of-
is referred to in several branches and sectors fices in Porto and Funchal. Due to its network of
of the law at a national and international level. associations and alliances with local firms and
The firm’s reputation amongst both peers and the creation of the Morais Leitão Legal Circle in
clients stems from the excellence of the legal 2010, the firm can also offer support through
services provided. The firm’s work is character- offices in Angola (ALC Advogados), Cape Verde
ised by its unique technical expertise, combined (VPQ Advogados) and Mozambique (MDR Ad-
with a distinctive approach and cutting-edge vogados).
Authors
Rui Patrício is a partner and Tiago Geraldo is a senior
head of the criminal, regulatory associate in the criminal,
offences and compliance regulatory offences and
practice areas at Morais Leitão. compliance practice group at
He has extensive trial Morais Leitão. Tiago focuses his
experience and is one of the activity on criminal litigation,
firm’s most experienced lawyers in criminal specifically white-collar defence and corporate
and regulatory litigation and compliance, crime, where he has substantial experience in
acting on behalf of companies and individuals representing and advising companies and
on complex and publicly relevant cases related individuals, both in and out of court. He is
to white-collar defence, regulatory enforcement actively engaged with regulatory disputes in
and compliance. He is also a regular speaker in sectors such as energy, banking, capital
seminars and conferences, predominantly on markets, telecommunications and media, while
criminal and regulatory legal themes, and also teaching criminal law as a teaching
collaborates with the media on matters related assistant at the University of Lisbon school of
to justice. law, often lecturing in seminars and
conferences on criminal law issues.
276 CHAMBERS.COM
Teresa Sousa Nunes joined Juliana Vasconcelos Senra

Morais Leitão in September joined Morais Leitão in
2021. She is a member of the September 2021. She is a
litigation and criminal, regulatory member of the litigation and
offences and compliance team. criminal, regulatory offences and
compliance team.
Morais Leitão, Galvão Teles,

Soares da Silva & Associados
Rua Castilho, 165
1070-050
Lisbon
Portugal
Tel: +351 21 381 7400

Fax: +351 213 817 499
Email: mlgtslisboa@mlgts.pt
Web: www.mlgts.pt
277 CHAMBERS.COM
ROMANIA
Ukraine
Trends and Developments Hungary

Moldova
Contributed by: Romania

Simona Pirtea and Mădălin Enache Bucharest
Enache Pirtea & Asociatii see p.285 Serbia
Bulgaria
General Outlook As such, within 60 days of the Whistleblower

The 2023 fight against corruption looks set to Protection Law entering into force, all public
continue under the same auspices as per 2022, and private companies located in Romania with
with justice reforms remaining a priority on the more than 249 employees must design internal
political agenda throughout the past year. Many reporting methods and channels. This obligation
EU member states have initiated important is also applicable to companies with 50—249
reforms in order to strengthen the independence employees, but these companies have between
of the judiciary, including reforms that affect the one and two years to submit to the reporting
composition and attributes of judicial councils, obligation instead.
improve appointment procedures or reinforce
the autonomy of criminal prosecution bodies. Laura Codruta Kovesi (in her capacity as Chief
Prosecutor of the European Public Prosecutor’s
EU member states have also introduced meas- Office) had a slightly negative reaction to this
ures to enhance efficiency and quality through legislative process as a result. Kovesi stated
further digitisation of their justice systems and that “the provision could have a demobilising
thereby facilitate access to justice in light of effect, discouraging potential whistle-blowers
the COVID-19 pandemic. In this respect, the in Romania and negatively affecting the level of
Romanian government has published several fraud detection in EU”.
draft laws concerning the status of magistrates,
judicial organisation and the draft law on the Unlike previous years, in which the trend was
Superior Council of the Magistracy. mainly for fighting organised and violent crimi-
nality, 2022 saw the focus of the judiciary envi-
In line with other member states, Romania has ronment in Romania shift to the discovery,
adopted the Directive (EU) 2019/1937 of the prevention and fight against corporate crimes
European Parliament and of the Council of 23 following the adoption of the EU Whistleblowing
October 2019 on the protection of persons who Directive.
report breaches of Union law (commonly known
as the “EU Whistleblowing Directive”) into However, also in 2022, a former Member of Par-
national law, although this has yet to enter into liament (MP) was finally indicted for trading in
force. On 29 June 2022, the EU Whistleblowing influence and forgery of private documents more
Directive was transposed into national law and than five years after criminal proceedings began.
the Law on the Protection of Whistleblowers in Specifically, the former MP allegedly demanded
the Public Interest (“Whistleblower Protection and received various sums of money between
Law”) was adopted by Parliament. 2010 and 2014 from representatives of an IT
company in order to induce the decision-mak-
278 CHAMBERS.COM
ROMANIA Trends and Developments
Contributed by: Simona Pirtea and Mădălin Enache, Enache Pirtea & Asociatii
ers and public officials he claimed or implied he Minister of Tourism, Elena Udrea, whose appeal
could influence to: against a 2018 conviction for corruption offenc-
es was rejected by the High Court. Other inves-
• award public procurement contracts to that tigations against her are also ongoing.
company; or
• allow previously signed contracts to be car- Controversies Surrounding the Statute of
ried out in good conditions. Limitations
This topic of limitation periods for criminal liabil-
Another criminal case with political implications ity has undoubtedly aroused particular interest
is the “Colectiv Club” case, in which Cristian across the Romanian legal landscape in recent
Popescu Piedone (the mayor of the Fifth District years. The Constitutional Court ruled in Deci-
of Bucharest) was finally sentenced to four years sion No 358/2022 that Article 155 para 1 of the
in prison almost seven years after the tragedy in Romanian Criminal Code does not comply with
which 65 people lost their lives. Judges at the constitutional law, thus giving rise to heated
Bucharest Court of Appeal also sentenced the debates in the legal field and also to different
Colectiv Club’s three owners to six, eight and 11 interpretations by the courts.
years in prison respectively.
In essence, Article 155 para 1 of the Criminal
Furthermore, after more than six years of trials, Code stated that the limitation period for criminal
a case brought by the National Anti-corruption liability could be interrupted by “any procedural
Directorate (Direcția Națională Anticorupție, or act in the case”. These regulations were not con-
DNA) in November 2015 was finally resolved sidered predictable by the Constitutional Court.
when the Bucharest Court of Appeal convicted They were also deemed contrary to the criminal
Sorin Oprescu in 2022. The court sentenced the procedure’s principle of legality on the grounds
former mayor of Bucharest to: that the phrase “any procedural act” also refers
to acts that were not communicated to the sus-
• six-and-a-half years in prison for the aggra- pect or defendant – thereby making them una-
vated version of the offence of setting up an ware of the interruption of the limitation period
organised criminal group; and the start of a new limitation period for their
• six years in prison for taking bribe; criminal liability.
• three years in prison for abuse of office; and
• three-and-a-half years in prison for money Ultimately, the direct application of this decision
laundering. will trigger the closing of a number of criminal
cases currently being prosecuted and lead to
After combining the sentences into one concur- the acquittal of number of defendants already
rent sentence of six-and-a-half years, the court on trial. Therefore, by applying the principle of
added the mandatory additional four years and mitior lex, individuals may refer the court to Deci-
two months – thus resulting in a prison sentence sion No 358/2022 and ask the court to apply
of ten years and eight months. the general limitation period if the offence was
committed before 30 May 2022.
Another famous criminal case brought to the
attention of the public in 2022 is that of the
279 CHAMBERS.COM
Although Constitutional Court decisions are Although there are still debates concerning
binding and immediately applicable, the Bucha- their desirability, the authors believe that these
rest Court of Appeal decided to initiate a request decisions were also intended to sanction the
to the High Court to resolve certain questions of prosecution bodies that allowed a multitude of
law related to the applicability of this decision. criminal files to remain unresolved for more than
On 25 October 2022, the High Court transposed a decade.
this debate and ruled in Decision No 66/2022
that the legislation in force between 9 August For the time being, the special statute of limi-
2018 and 30 May 2022, which did not provide tations is regulated by government emergency
for any cases of interruption of the statute of ordinance (GEO) No 71/2022, according to which
limitations, constitutes a more favourable law as “the course of the limitation period for criminal
per the mitior lex principle. Numerous criminal liability shall be interrupted by the performance
cases have been closed, either during the pros- of any procedural act in the file that, accord-
ecution or trial stage, as a result of this decision. ing to the law, must be communicated to the
Many will follow suit in the next several months, suspect or defendant”. GEO No 71/2022 was
depending on the status of their procedures. adopted in the context of Decision No 358/2022
of the Constitutional Court, which states that “for
The representatives of the General Prosecutor’s the period between June 25, 2018 and until the
Office argue that they do not agree with the entry into force of a normative act clarifying the
applicability of Decision No 66/2022, as there norm (30 May 2022, date of publication of GEO
is – among other things – the possibility of a No 71/2022), by expressly regulating the cases
“disguised amnesty”. capable of interrupting the course of the term of
prescription of criminal liability, the active sub-
The DNA stated that the direct application of stance of the legislation does not contain any
the decisions will have consequences for 557 case that would allow the interruption of the
cases, either under criminal prosecution or at course of prescription of criminal liability”.
trial stage, in which the total estimated damage
amounts to EUR1.2 billion. The Main Authorities Involved in the Fight
Against Corruption
The DNA also announced that they will submit In Romania, the legislative and institutional
the matter to the ECJ in order to assess whether framework for the fight against corruption is – in
these decisions are consistent with the rules and a broad sense – well established. However, the
the jurisprudence of the ECJ, which obligate the national anti-corruption strategy for 2020–24 is
Romanian State to investigate and sanction acts still to be applied – a process that is co-ordinat-
of corruption and fraud of EU funds effectively. ed by the Ministry of Justice.
The Directorate for Investigating Organised The National Anti-corruption Directorate

Crime and Terrorism (Direcția de Investigare a The criminal prosecution organisation that spe-
Infracțiunilor de Criminalitate Organizată și Teror- cialises in the fight against corruption is the
ism, or DIICOT) also stated that they identified a DNA. It has the authority and competence to
total of 605 criminal cases that could be closed investigate medium-to-large corruption cas-
as a result of these decisions. es, whereas the (regular) Public Prosecutor’s
280 CHAMBERS.COM
Office investigates all other corruption cases. In Additionally, the National Agency for the Admin-
contrast to previous years, there was a slight istration of Seized Goods (Agenția Națională de
increase the number of cases registered on the Administrare a Bunurilor Indisponibilizate, or
dockets of the DNA following the removal of all ANABI) ensures the management of assets that
restrictions related to COVID-19. have been seized and confiscated as a result of
crimes.
According to the DNA’s 2021 Activity Report,
the institution aims to record an increase in the The new National Defence Strategy
intensity and quality of the activity carried out in According to a press release by the presiden-
the coming years. The DNA also aims to make tial adviser from the Department for National
efficient use of the reports it receives from indi- Security, the fight against corruption is being
viduals or legal persons. approached through multiple sections of the
National Defence Strategy for 2020–2024 (the
In 2016, the Romanian Constitutional Court ruled “Strategy”). The Strategy places great empha-
that the Romanian Intelligence Service (Serviciul sis on the social component of national security,
Român de Informații, or SRI) can no longer per- especially with regard to:
form wire tapping on behalf of the DNA – nor can
the DNA use any such evidence or SRI investiga- • increasing resilience and reducing internal
tors in its performance of criminal investigations. vulnerabilities (including through the fight
Thus, the execution of the technical supervision against corruption);
mandates ordered in the criminal trials is carried • the proper functioning of democracy and the
out exclusively by judicial police officers from rule of law; and
the DNA’s Technical Department. The DNA has • strengthening administrative capacity.
publicly complained that it lacks the technical
resources and knowhow – as well as sufficient In the new Strategy, corruption does not only
personnel – to do this. represent a vulnerability (as per previous strat-
egies); it is now placed under the category of
There are currently approximately 150 prosecu- “security risk”. Thus, all stages of the corruption
tors and 310 judicial police officers and special- process – from the establishment of illegitimate
ists working for the DNA; however, these num- interest groups to the risk of overturning deci-
bers are considered insufficient. A new project to sions made by the authorities of the state – are
increase the number of prosecutors and police addressed respectively in multiple sections of
officers in the DNA is being debated publicly. the Strategy.
Recent criminal investigations have focused on Furthermore, in the President’s view, the fight
crimes involving the production, importation and against corruption must proceed without imped-
distribution by companies of medical masks and iment and with concomitant awareness-raising
other devices. Prosecutors performed several concerning the fundamental values of society.
searches at the headquarters of companies and This is the crux of creating a culture of integrity
some criminal cases have also appeared before in the public sector – for only in this way will it
the court. be possible to eradicate the root causes of the
corruption phenomenon.
281 CHAMBERS.COM
The Section for the Investigation of Judicial The ANI continues to deliver good results,
Crimes including a total of 2,827 public procurement
On 11 March 2022, Law No 49/2022 regarding procedures that were analysed through the
the dismantling of the SIIJ entered into force, computer system PREVENT between April and
following promises by current politicians to dis- June 2021. Of these procedures, around 20%
band the Section for the Investigation of Judicial relate to contracts financed by EU funds. At the
Crimes (Secția pentru Investigarea Infracțiunilor same time, approximately a third of the total pro-
din Justiție, or SIIJ) since their election. cedures involve 16,288 subsequent contracts.
Moreover, during the same period, three integrity
From March 14, 2022, the prosecutors within warnings were issued concerning a total amount
the SIIJ (including those with management of RON6.6 million.
positions) returned to the regular prosecutors’
offices. The crimes that until now were under The ANI has also developed powerful tools for
jurisdiction of the SIIJ are to be resolved by the preventing administrative conflicts of interest
Public Prosecutor’s Office with the High Court of (particularly in the field of public procurement)
Cassation and Justice and the Court of Appeal. and has carried out awareness-raising cam-
paigns in national and local elections. Previ-
The Fight Against Fraud Department ous Co-operation and Verification Mechanism
Attempts by the European Anti-Fraud Office (Mecanismul de Cooperare și Verificare, or MCV)
(Office européen de Lutte Antifraude, or OLAF) reports have highlighted the persistent issues
to combat corruption in Romania through the faced by the legislative framework in terms of
Fight Against Fraud Department (Departamentul integrity and the need for stability and clarity.
pentru Lupta Antifraudă, or DLAF) should also
be mentioned as an important component of The ANI proposed that the Ministry of Justice
the measures against defrauding EU subsidies. work with stakeholders to review legislation con-
Thus, Romania is the first EU member state to be cerning integrity and strive towards developing
included in the latest OLAF report with regard to a coherent and strengthened legislative frame-
corruption investigations and tip-offs concern- work. Even though the ANI has a substantially
ing EU funds, which strengthens the role of the higher workload during election time, its budget
DLAF in this area. has been reduced.
The National Integrity Agency The European Public Prosecutor’s Office

The National Integrity Agency (Agenția Națională The European Public Prosecutor’s Office (EPPO)
de Integritate, or ANI) is responsible for the was established by Regulation (EU) 2017/1939
investigation of administrative conflicts of inter- as an independent body of the EU. The EPPO is
est, incompatibilities and unjustified assets. the first EU body that can investigate and pros-
ecute criminal offences.
Its operation has produced positive results so
far, as the sanctioning of incompatibilities and The EPPO also has the power to investigate,
of conflicts of interest is an important element of prosecute and punish perpetrators of offences
combating and preventing corruption. against the EU’s financial interests (as set out in
Directive (EU) 2017/1371 and laid down in Regu-
282 CHAMBERS.COM
lation (EU) 2017/1939). Cases prosecuted by the As for the opinion of the general public when it
EPPO are referred to the competent courts in the comes to the efforts of anti-corruption authori-
EU member states. ties, the public now tends to be more concerned
about the fight against violent criminality – for
The EPPO will work in close co-operation with example, human trafficking (as a result of a
national judicial and law enforcement authori- case that horrified the public) and drug traffick-
ties. It will also work closely with other EU bodies ing (there is a draft law in Parliament that will
such as OLAF, Eurojust and Europol. increase penalties). As such, the focus is not on
the results of the anti-corruption authorities and
Given the EPPO’s jurisdiction, an investigation criminal investigations at the moment.
has already been launched into alleged fraud
with EU funds, with damages of over EUR3 mil- However, corruption among high officials has
lion. The EPPO suspects three people of setting been heavily criticised in the media for being the
up an organised criminal group at the beginning reason why the fight against criminal networks
of 2018, with the aim of defrauding EU funds and the handling of the pandemic was poorly
intended for the development of the Danube managed. So the fight against corruption is sure
Delta. To this end, the suspects set up a fraud to remain a constant in the efforts to ensure jus-
scheme through seven companies, which they tice in Romania – especially as the MCV is yet
controlled either directly or through intermediar- to be rescinded, even though efforts are being
ies. made at an administrative, political and judicial
level to persuade the EU decision-makers that
Trends for the Future this supervision is no longer necessary.
As was the case in 2022, it is expected that the
fight against corruption will continue throughout However, as regards the adoption of the Whistle-
2023 in a more intense fashion than previous blower Protection Law, the authors believe that
periods as people are interested in relevant out- there will be a lot of challenges in terms of the
comes in this area. Even so, the criminal inves- EU Whistleblowing Directive’s requirement to
tigation authorities still look set to struggle with establish or maintain internal reporting channels
some problems in their day-to-day activities due and procedures within public institutions or pri-
to understaffing and political pressures on the vate companies. The EU Whistleblowing Direc-
justice system. tive, obviously, imposes measures to ensure
the appropriate protection of persons reporting
Nonetheless, every authority that handles cor- crimes within their companies, such as:
ruption cases is anticipated to continue its activ-
ity with full force. As mentioned earlier, the DNA • the establishment of safe reporting channels;
plans to intensify its activities and increase the and
quality of those carried out. One way to achieve • protection against dismissal or other forms of
these goals, as stated in DNA’s 2021 Activity retaliation.
Report, is by recruiting DNA members as pros-
ecutors. Owing to contradictions in the national legisla-
tion transposing the EU Whistleblowing Direc-
tive, companies will have a hard time implement-
283 CHAMBERS.COM
ing these measures to support people who take Whistle-blowers will continue to be discouraged
risks in uncovering crimes such as fraud and from reporting perceived illegal actions unless
corruption. the Senate revises national legislation and
establishes a legal framework in line with the EU
The Whistleblower Protection Law, which was Whistleblowing Directive. Whistle-blowers will
recently adopted and sent for promulgation, also remain under the impression that they are
significantly diminishes mechanisms that pro- not properly protected by national authorities,
tect the integrity of whistle-blowers. As such, as the transposition law does not provide suf-
this transposition law will reduce opportunities ficient protection in terms of anonymous report-
for whistle-blowers to report the irregularities ing, confidentiality, etc.
they find anonymously and will also affect the
process of discovering crimes committed by the Moreover, the Whistleblower Protection Law
authorities. approved by Parliament even has consequences
for the private sector, as anonymous reporting is
The form of the national legislation transposing an effective method of preventing and detecting
the EU Whistleblowing Directive has many defi- fraud in private companies.
ciencies, which will undoubtedly lead to a lot of
public controversy. However, the draft law on It can be concluded that the fight against cor-
whistle-blower protection has been sent by the ruption in the public and private sector may be
President of Romania to the Senate for reconsid- hindered if the legislator does not revise the
eration in order to remedy these shortcomings. transposition law as soon as possible. In this
respect, it is important to mention that the ECHR
A number of constitutional provisions are also recently found an infringement in the case Poie-
violated by this national law, so the authors naru v Romania. Essentially, the ECHR stated
believe that criticisms of the form it takes are that the national courts failed to analyse the
justified. Overall, the Whistleblower Protection extent to which the claimant benefited from the
Law contains some vague, interpretable or even legal protection of whistle-blowers.
contradictory provisions.
284 CHAMBERS.COM
Enache Pirtea & Asociatii (EPA) stands for ex- “new wave” business criminal law attorneys,
traordinary professionalism applied to the re- Simona Pirtea and Mădălin Enache. Both have
quirements and needs of the clients, which is extensive experience of white-collar criminal-
the main drive and focus of the law firm. This is ity cases, but also in business crime matters of
best encapsulated by the firm’s motto (“We go considerable importance. The firm’s focal area
the extra mile”), as well as in its mission (“inside of activity, in which the main partners have more
the business and outside the box”) and vision than 15 years’ professional experience, is crimi-
(to provide businesses with integrated practi- nal law – including its two main components
cal solutions for ethically moving forward and (criminal investigation and litigation) – as well as
shaping the future). EPA was set up in 2018 in business crime consultancy and counselling in
Bucharest following the merger of the special- relation to business ethics and integrity.
ised law boutique offices of two highly reputed
Authors
Simona Pirtea is a criminal law Mădălin Enache is the
practitioner and the co-founder co-founder of Enache Pirtea &
of Enache Pirtea & Asociatii. She Asociatii and brings to the firm
has more than a decade of first-class professional expertise
intensive professional activity in acquired during some of the
the legal and intelligence fields, most difficult and media-
having demonstrated her strong technical scrutinised criminal investigations and trials.
knowledge and consistent business-oriented He has practised extensively in high-level
approach throughout a wide array of complex white-collar criminal cases since 2006, building
cases involving important multinational a solid reputation as a leading criminal law
companies or governmental and European attorney, and is now known as one of the most
institutions. Professionalism, combined with highly skilled practitioners in this field. Mădălin
strategic thinking and absolute dedication, are has counselled, assisted and represented
the attributes that define Simona’s practice as renowned international and Romanian
a lawyer. Using the knowledge and knowhow corporate clients, key-figure businesspeople
gained from her extensive experience in and executives and high-profile politicians who
criminal law and risk management, she has have been involved in a wide range of white-
developed her practice by conducting several collar criminal cases. Mădălin is also a highly
major projects in compliance and regulation. regarded and valued lecturer on criminal law
topics, who has published specialised articles
in national and international publications on the
subject of business crime.
285 CHAMBERS.COM
Enache Pirtea & Asociatii

33 Argentina Str
1st District
011753
Bucharest
Romania
Tel: +40 371 471 000

Fax: +40 371 607 160
Email: office@enachepirtea.ro
Web: enachepirtea.ro
286 CHAMBERS.COM
SINGAPORE
Malaysia
Law and Practice
Singapore
Contributed by:
Wendell Wong, Paras Lalwani and Andrew Chua
Drew & Napier LLC see p.301 Indonesia
Contents
2.1 Bribery p.289
3. Scope p.294
5. Penalties p.295
Penalties p.295
287 CHAMBERS.COM
SINGAPORE Law and Practice
Contributed by: Wendell Wong, Paras Lalwani and Andrew Chua, Drew & Napier LLC
1. Legal Framework for Offences The Penal Code 1871 (Penal Code) contains fur-
ther provisions relating to bribery and corruption.
1.1 International Conventions This includes offences related to the bribery of
Singapore is a signatory to the United Nations domestic “public servants” under Sections 161
Convention against Corruption (signed on 11 to 165 of the Penal Code. In practice, however,
November 2005, ratified on 6 November 2009), the offences under the Penal Code are rarely
and to the United Nations Convention against used for the prosecution of corruption offences.
Transnational Organized Crime (signed on 13 Prosecutors usually rely on the offences under
December 2000, ratified on 28 August 2007). the PCA instead.
In addition, Singapore has been a member of the The Corruption, Drug Trafficking and other Seri-
Financial Action Task Force (FATF) since 1992, ous Crimes (Confiscation of Benefits) Act 1992
and is one of the founding members of the Asia/ (CDSA) is another legislation aimed at com-
Pacific Group on Money Laundering (APG). bating corruption. The CDSA criminalises the
acquisition, possession, use, concealment and/
Singapore’s Corrupt Practices Investigations or transfer of the benefits from criminal conduct
Bureau (CPIB), the agency responsible for the (such as corruption), and allows for the confisca-
investigation and prevention of corruption in tion of such benefits.
Singapore, also represents Singapore at various
anti-corruption fora, such as: 1.3 Guidelines for the Interpretation and
Enforcement of National Legislation
• Asian Development Bank (ADB) – Organisa- There are no official guidelines on the interpreta-
tion for Economic Co-operation and Devel- tion and enforcement of Singapore’s anti-cor-
opment (OECD) Anti-Corruption Initiative for ruption legislation.
Asia and Pacific;
• Asia-Pacific Economic Cooperation (APEC) However, the CPIB has published on its website
Anti-Corruption and Transparency Experts’ some answers to frequently asked questions
Working Group (ACTWG); relating to anti-corruption and bribery laws in
• Economic Crime Agencies Network (ECAN); Singapore: https://www.cpib.gov.sg/faq/cor-
• G20 Anti-Corruption Working Group (ACWG); ruption-related/.
• International Association of Anti-Corruption
Authorities (IAACA); and In 2017, the CPIB and SPRING (now Enterprise
• South-East Asia – Parties Against Corruption Singapore – a government agency championing
(SEA-PAC). enterprise development) also launched the Sin-
gapore Standard (SS) ISO 37001 on anti-bribery
1.2 National Legislation management systems. This voluntary standard
The primary legislation governing bribery and is based on internationally recognised good
corruption in Singapore is the Prevention of Cor- practices. It provides guidelines to help Singa-
ruption Act 1960 (PCA). The main offences under pore companies strengthen their anti-bribery
the PCA are set out in Sections 5 and 6, which compliance systems and processes and ensure
apply to both the private and public sector, and compliance with anti-bribery laws.
prohibit both active and passive bribery.
288 CHAMBERS.COM
Further, also in 2017, the CPIB published PACT 2. Classification and Constituent
– its Practical Anti-Corruption Guide for Busi- Elements
nesses in Singapore. PACT provides guidance
for business owners on how to develop and 2.1 Bribery
implement an anti-corruption system. The ele- Bribery is defined very widely under the PCA.
ments of an effective corporate compliance pro-
gramme as stated in PACT include: Section 5 of the PCA provides that it is an
offence for anyone to:
• setting the tone from the top to promote a
corporate culture of compliance; (a) “corruptly solicit or receive, or agree to
• implementation of clear, visible and easy to receive for themselves, or for any other
understand anti-corruption policies and a person; or
code of conduct; (b) corruptly give, promise or offer to any
• guidance on common corruption risk areas person whether for the benefit of that
including corporate gifts and entertainment, person or of another person,
conflicts of interests, and contributions and
sponsorship; any gratification as an inducement to or reward
• conducting bribery and corruption risk for, or otherwise on account of —
assessments;
• the implementation of effective internal con- (a) any person doing or forbearing to do any-
trols; thing in respect of any matter or transac-
• the availability of effective reporting and tion whatsoever, actual or proposed; or
whistle-blower systems; and (b) any member, officer or servant of a public
• regular monitoring of the compliance system. body doing or forbearing to do anything in
respect of any matter or transaction what-
1.4 Recent Key Amendments to National soever, actual or proposed, in which such
Legislation public body is concerned […]”
One of the key amendments to the national
legislation was the introduction of the Deferred Further, Section 6 of the PCA provides that it
Prosecution Agreements (DPA) regime in 2018. is an offence for an agent to corruptly accept
or obtain any gratification in relation to the acts
A DPA is a voluntary alternative in which a pros- or performance of their principal. This may, for
ecutor agrees to grant amnesty in exchange for a example, involve an employee corruptly accept-
defendant agreeing to fulfil certain requirements ing or obtaining gratification in the course of their
and specific conditions, such as, implementing employment with their company and/or in rela-
compliance programmes, and/or co-operating tion to the acts of their company.
in investigations into wrongdoing by individuals.
Further, Sections 11 and 12 of the PCA pro-
Under this regime, corporations can potentially vide that it is an offence to offer gratification
enter into DPAs with Singapore’s Attorney-Gen- to domestic public officials (such as members
eral’s Chambers in respect of certain corruption of parliament or members of a public body). In
and corruption-related offences. turn, a public body is defined as any corporation,
289 CHAMBERS.COM
board, council, commissioners or other body Facilitation Payments

which has power to act under and for the pur- Facilitation payments may be defined as pay-
poses of any written law relating to public health ments which are made to public officials to
or to undertakings or public utility or otherwise speed up an administrative process where the
to administer money levied or raised by rates or outcome is already pre-determined.
charges in pursuance of any written law.
Where such payments are concerned, these are
Hospitality Expenditures, Gifts and not specifically regulated in Singapore – in par-
Promotional Expenditures ticular, there is no exemption or defence appli-
Under the PCA, “gratification” has a very wide cable to such payments similar to that provided
definition, which includes: under the United States Foreign Corrupt Prac-
tices Act 1977 (FCPA).
• money or any gift, loan, fee, reward, commis-
sion, valuable security or other property or However, regard should be had to Section 12
interest in property of any description, wheth- of the PCA. That Section prohibits, among oth-
er movable or immovable; ers, the giving, solicitation and/or accepting of
• any office, employment or contract; gratification for a member of a public body’s per-
• any payment, release, discharge or liquidation forming or abstaining from performing, or their
of any loan, obligation or other liability what- aid in procuring, expediting, delaying, hindering
soever, whether in whole or in part; or preventing the performance of any official act.
• any other service, favour or advantage of any
description whatsoever, including protec- Bribery of a Public Official
tion from any penalty or disability incurred or The primary corruption offences under Sections
apprehended or from any action or proceed- 5 and 6 of the PCA apply to both the private and
ings of a disciplinary or penal nature, whether public sectors.
or not already instituted, and including the
exercise or the forbearance from the exercise However, the law distinguishes between bribery
of any right or any official power or duty; and of a public official and private persons in that
• any offer, undertaking or promise of any grati- there is a presumption of corruption in certain
fication within the meaning of the bullet points cases involving the bribery of public officials. In
set out above. this regard, Section 8 of the PCA provides as
follows:
Hospitality expenditures (travel expenses,
meals), gifts and promotional expenditures are “Where in any proceedings against a person for
therefore likely to fall under this very wide defini- an offence under Section 5 or 6, it is proved that
tion of gratification under the PCA. Whether or any gratification has been paid or given to or
not the giving or acceptance of such gratification received by a person in the employment of the
amounts to the offence of bribery will therefore government or any department thereof or of a
depend on the state of mind of the giver/receiver public body by or from a person or agent of a
and the purpose for giving/receiving such grati- person who has or seeks to have any dealing
fication. with the government or any department thereof
or any public body, that gratification shall be
290 CHAMBERS.COM
deemed to have been paid or given and received above, the former is defined under Section 21
corruptly as an inducement or reward as herein- of the Penal Code as including:
before mentioned unless the contrary is proved.”
• an officer in the Singapore Armed Forces;
Aside from this, the law also distinguishes • a judge;
between bribery of a public official and private • an officer of a court of justice;
persons in that there are specific offences under • an assessor assisting a court of justice;
the PCA and the Penal Code that relate to the • an arbitrator or other person to whom any
public sector. cause or matter has been referred for deci-
sion;
In particular, under the PCA, it is an offence to: • an office holder who holds powers to confine
other persons;
• corruptly procure the withdrawal from a gov- • an officer of the Singapore government;
ernment tender (Section 10 of the PCA); • an officer who acts on behalf of the govern-
• bribe a member of parliament, or to accept ment; or
such a bribe as a member of parliament (Sec- • a member of the Public Service or Legal Ser-
tion 11 of the PCA); and vice Commission.
• bribe a member of a public body, or to accept
such a bribe as a member of a public body Bribery of Foreign Public Officials
(Section 12 of the PCA). There are no legislative provisions that specifi-
cally deal with the potential bribery of foreign
Further, under the Penal Code, the following are public officials.
offences (amongst others):
However, Section 37 of the PCA states that if a
• the acceptance by a public servant of a grati- Singapore citizen commits an offence under the
fication or anything of value as a reward for PCA in any place outside of Singapore, they may
doing any official act, outside of legal remu- be dealt with in respect of that offence as if it had
neration (Section 161 of the Penal Code); been committed within Singapore. Section 4 of
• the acceptance of a gratification by any the Penal Code also provides that public serv-
person in order to influence or to exercise ants who commit offences outside of Singapore
personal influence over a public servant (Sec- are deemed to have committed that offence in
tions 162-63 of the Penal Code); and Singapore.
• the acceptance by a public servant of a
gratification or anything of value without any The sum total of this is that the various prohibi-
or adequate consideration (Section 165 of the tions for corruption-related offences under the
Penal Code). PCA and Penal Code can apply to cases involv-
ing foreign public officials and, in some cases,
In this regard, it should be noted that a “public even apply where the acts of corruption occur
servant” is defined differently from the definition outside of Singapore.
of a “member of a public body” under the PCA.
Whereas the definition of the latter is set out In fact, it should also be noted that the Singapore
courts have held that the fact that a corruption
291 CHAMBERS.COM
offence involves the corruption of foreign public 2.3 Financial Record-Keeping

officials is an aggravating factor: see PP v Tan Obligation of Companies in Respect of
Kok Ming Michael [2019] 5 SLR 926 at [73]-[93]. Record-Keeping
Under Section 199(1) of the Companies Act (CA),
2.2 Influence-Peddling every company is required to keep accounting
As stated at 2.1 Bribery, the PCA defines grati- and other records “sufficiently explain the trans-
fication very widely and includes “any office, actions and financial position of the company
employment or contract”, as well as “any other and enable true and fair financial statements and
service, favour or advantage of any description any documents required to be attached thereto
whatsoever, including protection from any pen- to be prepared from time to time”.
alty or disability incurred or apprehended or from
any action or proceedings of a disciplinary or Such records must be kept for a period of not
penal nature, whether or not already instituted, less than five years from the end of the financial
and including the exercise or the forbearance year in which the transactions or operations to
from the exercise of any right or any official which those records relate are completed.
power or duty”.
If a company fails to do so, the company and
Therefore, influence-peddling (ie, the use of every officer of the company who is in default
one’s positional or political influence in exchange will be guilty of an offence under Section 199(6)
for undue advantages) is likely to constitute an of the CA.
offence under Sections 5 or 6 of the PCA. Fur-
ther, influence peddling by citizens of Singapore Falsification of Accounts/False
of foreign public officials is likely to come within Documentation
Section 12 of the PCA, read with Section 37(1) Section 477A of the PC criminalises the falsi-
of the PCA. fication of accounts. The section provides as
follows:
Apart from the PCA, Section 161 of the PC pro-
vides that it is an offence for a person, being “Whoever, being a clerk, officer or servant, or
or expecting to be a public servant, to accept employed or acting in the capacity of a clerk,
or obtain (or agree to accept or obtain) any officer or servant, intentionally and with intent to
gratification other than a legal renumeration as defraud destroys, alters, conceals, mutilates or
a motive or reward for, among others, doing or falsifies any book, electronic record, paper, writ-
forbearing to do any official act. ing, valuable security or account or a set thereof
which belongs to or is in the possession of their
In a similar vein, Section 163 of the PC provides employer, or has been received by them for or on
that it is an offence for a person to accept or behalf of their employer, or intentionally and with
obtain gratification for exercising personal influ- intent to defraud makes or abets the making of
ence on a public servant to do or forbear to do any false entry in, or omits or alters or abets the
any official act. omission or alteration of any material particu-
lar from or in any such book, electronic record,
paper, writing, valuable security or account or a
set thereof, shall be punished with imprisonment
292 CHAMBERS.COM
for a term which may extend to 10 years, or with • influence the outcome of an election to the
fine, or with both.” office of President, a general election of
members of parliament, a by-election of a
Aside from this, the PC also sets out various member of parliament, or a referendum;
offences relating to documents and electronic • incite feelings of enmity, hatred or ill will
records (such as forgery under Section 463 of between different groups of persons; or
the PCA and making a false document or false • diminish public confidence in the perfor-
electronic record under Section 464 of the PC). mance of any duty or function of, or in the
These offences can also potentially apply to situ- exercise of any power by, the government, an
ations involving inaccurate corporate books and organ of state, a statutory board, or a part of
records. the government, an organ of state or a statu-
tory board.
Dissemination of False Information
As for the dissemination of false information of 2.4 Public Officials
a harmful thing, Section 268A of the PC crimi- Under Section 405 of the PC, any person who
nalises the communication of information con- misappropriates property they are entrusted with
taining a reference to the presence in any place will be liable for criminal breach of trust. Where
or location or in any conveyance or means of such breach of trust is committed by, inter alia,
transportation of any thing that is likely to cause a public servant, Section 409 of the PC provides
hurt or damage to property by any means which for enhanced penalties, namely, imprisonment
the person knows to be false or fabricated. for life, or imprisonment for a term which may
extend to 20 years, and liability to a fine.
As for the dissemination of false information
online, Singapore recently enacted the Protec- There are, however, no specific provisions which
tion from Online Falsehoods and Manipulation relate to the unlawful taking of interest by a pub-
Act 2019 (Act No 18 of 2019) (POFMA). lic official and/or favouritism by a public official.
In such situations, the general provisions under
Amongst other things, POFMA criminalises the the PCA and PC would potentially apply.
doing of an act within or outside Singapore in
order to communicate in Singapore a statement 2.5 Intermediaries
knowing, or having reason to believe, that the Under Section 5 of the PCA, it is an offence for
statement is a false statement of fact; and its any person to give or receive bribes “by them-
communication of that statement in Singapore selves or by or in conjunction with any other
is likely to: person”. This is wide enough to cover situa-
tions where a person commits a bribery offence
• be prejudicial to the security of Singapore or through an intermediary.
any part of Singapore;
• be prejudicial to public health, public safety, Further, under Section 6 of the PCA, it is an
public tranquillity or public finances; offence for an agent to corruptly accept or
• be prejudicial to the friendly relations of Sin- obtain any gratification in relation to the acts or
gapore with other countries; performance of their principal. For example, this
may involve an employee corruptly accepting or
293 CHAMBERS.COM
obtaining any gratification in relation to the acts 4. Defences and Exceptions

of their company. In addition, Section 6(b) also
criminalises the giving or agreement to give any 4.1 Defences
gratification to any agent. There are no statutory defences to bribery under
the PCA. The accused will therefore need to rely
on negating each element of the charge against
3. Scope them.
3.1 Limitation Period Chapter IV of the PC sets out the various gen-
Under Singapore law, there is no limitation period eral defences available against a criminal charge
for enforcing or prosecuting criminal offences. under the PC. However, these defences are
unlikely to be applicable in the vast majority of
3.2 Geographical Reach of Applicable corruption offences.
Legislation
Section 37 of the PCA provides extraterritorial 4.2 Exceptions
reach for the provisions of the PCA provided that Several of the general defences under Chapter
the offences in question are committed by a citi- IV of the PC are subject to exceptions (such as
zen of Singapore overseas. the defence of duress). However, as stated at
4.1 Defences, these defences are unlikely to
In addition, under Section 4 of the PC, every be applicable in the vast majority of corruption
public servant who, being a citizen or a perma- offences.
nent resident of Singapore, when acting or pur-
porting to act in the course of their employment, 4.3 De Minimis Exceptions
commits an act or omission outside Singapore The general defences in Chapter IV of the PC
that if committed in Singapore would constitute include a defence of de minimis. The relevant
an offence under the law in force in Singapore, is section is Section 95 of the PC, which states as
deemed to have committed that act or omission follows: “Nothing is an offence by reason that it
in Singapore. causes, or that it is intended to cause, or that it
is known to be likely to cause, any harm, if that
3.3 Corporate Liability harm is so slight that no person of ordinary sense
Both individuals and corporate entities may be and temper would complain of such harm.”
held liable for bribery. The primary bribery offenc-
es under Sections 5 and 6 of the PCA apply to It is unlikely that this general defence will be
all “persons”. The term “person” is defined in applicable to corruption offences as the strict
the Interpretation Act as including “any company policy approach taken by lawmakers and the
or association of body of persons, corporate or CPIB towards the implementation and enforce-
unincorporated.” ment of corruption offences in Singapore means
that any bribe, no matter how small, will not be
In practice, however, the authorities’ enforcement considered de minimis. There is also some doubt
efforts have focused predominantly on individu- as to whether the defence of de minimis applies
als, with prosecutions against corporate entities to offences outside of the PC.
for corruption offences being rare to date.
294 CHAMBERS.COM
However, the issue has yet to come before the government or any department thereof or with
Singapore courts. any public body or a subcontract to execute
any work comprised in such a contract) – a
4.4 Exempt Sectors/Industries fine not exceeding SGD100,000 or imprison-
There are no sectors or industries exempt from ment not exceeding seven years, or both;
bribery and corruption offences under the PCA. • Section 10, PCA (corruptly procuring with-
drawal of tenders) – a fine not exceeding
Further, under Section 23 of the PCA, in any civil SGD100,000 or imprisonment not exceeding
or criminal proceedings under the PCA, evidence seven years, or both;
to show that any gratification is customary in the • Section 11, PCA (bribery of member of parlia-
profession, trade, vocation or calling shall not be ment) – a fine not exceeding SGD100,000 or
admissible. imprisonment not exceeding seven years, or
both; and
4.5 Safe Harbour or Amnesty Programme • Section 12, PCA (bribery of member of public
There is no safe harbour or amnesty programme body) – a fine not exceeding SGD100,000 or
based on the self-reporting of corruption offenc- imprisonment not exceeding seven years, or
es. both.
However, the DPA scheme may allow compa- In addition, where the offender has received a
nies to highlight effective anti-bribery compli- bribe, under Section 13 of the PCA, the court
ance programmes as part of their negotiations may order the person to pay a penalty equivalent
on any DPA to be entered into with the AGC. At to the amount of gratification received, in addi-
present, there are no publicly available guide- tion to the penalties stipulated above.
lines on when the AGC will enter into a DPA with
a corporate entity. 5.2 Guidelines Applicable to the
Assessment of Penalties
In PP v Tan Kok Ming Michael [2019] 5 SLR 926,
5. Penalties the High Court of Singapore (now the General
Division of the High Court of Singapore) held that
5.1 Penalties on Conviction the main overarching sentencing considerations
In general, the maximum penalties prescribed in corruption cases are deterrence and retribu-
under the relevant statutes are as follows: tion (at [99]).
• Section 5, PCA – a fine not exceeding Further, in Takaaki Masui v PP [2020] SGHC 265,
SGD100,000 or imprisonment not exceeding the High Court also observed that there were
five years, or both; four broad categories of corruption under the
• Section 6, PCA – a fine not exceeding general offences set out in Sections 5, 6 and 7
SGD100,000 or imprisonment not exceeding of the PCA.
five years, or both;
• Section 7, PCA (increase of maximum pen- • Category 1 – corruption in the public sector
alty in cases where the offence related to a which involves government servants or offic-
contractor a proposal for a contract with the ers of public bodies. A custodial sentence
295 CHAMBERS.COM
is the norm for such cases in the light of the Nonetheless, these are not immutable or fixed
strong public interest in stamping out corrup- categories. There are no prescribed sentencing
tion in the public sector. formulae, and the issue of sentencing in corrup-
• Category 2 – corruption in the private sector tion cases will often turn on the specific facts of
which engages the public service rationale. each case.
For clarity, this refers to the “public interest in
preventing a loss of confidence in Singapore’s
public administration”. This sentencing prin- 6. Compliance and Disclosure
ciple is presumed to apply in cases of public
sector corruption but has been extended to 6.1 National Legislation and Duties to
cases where private agents handle public Prevent Corruption
money, supply public services or are involved There are no statutorily mandated compliance
in government contracts. This category also programmes.
includes private sector offences that concern
regulatory or oversight roles such as marine However, in 2017, Singapore introduced both
surveying. In such cases, a custodial sen- the Singapore Standard (SS) ISO 37001 on anti-
tence is often the norm. bribery management systems, and published
• Category 3 – corruption in the private sec- PACT – the CPIB’s Practical Anti-Corruption
tor which does not engage the public service Guide for Businesses in Singapore (see 1.3
rationale, ie, private sector agents performing Guidelines for the Interpretation and Enforce-
purely commercial functions. While there is ment of National Legislation).
no norm in favour of non-custodial sentences
in such cases, the general trend indicates 6.2 Regulation of Lobbying Activities
that where private sector agents performing Lobbying activities in Singapore are primarily
purely commercial functions are concerned, regulated through the Political Donations Act
offences which register a lower level of overall 2000 (PDA).
criminal culpability may be dealt with through
the imposition of fines. However, whether or Under the PDA, political associations and can-
not the custody threshold is breached will didates can only accept contributions from per-
depend greatly on the specific nature of cor- missible donors – that is, Singapore citizens not
ruption. less than 21 years of age, Singapore-controlled
• Category 4 – corruption cases for which there companies carrying on business mainly in Sin-
are established sentencing guidelines. This is gapore, or a candidate’s political party. If dona-
an open category that has been included to tions come from anonymous donors, such dona-
accommodate any present and future judg- tions from anonymous donors may not exceed
ments that provide sentencing guidelines SGD5,000 per financial year.
tailored to a specific type of fact scenario. At
present, the only types of cases falling within Further, Section 12 of the PDA mandates that
this category are: (a) those relating to sports- every political association must prepare and
betting and match-fixing; and (b) cases send a donation report to the Registrar of Politi-
involving offenders prosecuted under Section cal Donations.
6 read with Section 7 of the PCA.
296 CHAMBERS.COM
Donation reports should state details such as the However, some protection is offered by the PCA
identity of donors, value of donations and cir- – in particular, Section 36 of the PCA renders
cumstances in which donations were made. Fur- any complaints under the PCA inadmissible as
ther, donation reports must also contain details evidence in any civil or criminal proceedings.
of every donation where: Further, no witness is obliged or permitted to
disclose the name or address of any informer,
• the donation is not less than SGD10,000; or or state any matter which might lead to their
• if added to any other donation from the same discovery.
permissible donor, the aggregate amount of
the donations is not less than SGD10,000. There is growing pressure for the introduction of
such specific legislation.
bribery and Anti-corruption Provisions 6.5 Incentives for Whistle-Blowers
Under Section 424 of Criminal Procedure Code There are no specific legislative provisions that
(CPC), individuals are obliged to report the com- provide for incentives for whistle-blowers. None-
mission or the intention of any other person to theless, if criminal charges are brought against a
commit certain offences under the PC. These whistle-blower, the Singapore courts may poten-
offences include some offences under the PC tially give mitigating weight to the fact that the
which relate to the corruption of public servants whistle-blower voluntarily gave information to
(ie, offences under Sections 161 to 164 of the the authorities at the outset.
PC).
6.6 Location of Relevant Provisions
The PCA itself, however, does not criminalise Regarding Whistle-Blowing
a person’s failure to disclose violations of anti- See 6.4 Protection Afforded to Whistle-Blow-
bribery and anti-corruption provisions at the ers.
outset. That said, Section 27 of the PCA obliges
an individual or company required by the CPIB
to give information on any subject of inquiry by 7. Enforcement
the CPIB.
In addition, under Section 39 of the CDSA, indi- corruption Laws
viduals and companies may be liable for failing Both criminal and civil enforcement are statuto-
to report a suspicion that any property repre- rily provided for under the PCA.
sents the proceeds of, or was used in connec-
tion with, any criminal offence. Criminal Enforcement
Offences under the PCA (for example, those set
6.4 Protection Afforded to Whistle- out in Sections 5-7 of the PCA) are punishable
Blowers by imprisonment, fines or both (see 5.1 Penal-
There is currently no specific omnibus legisla- ties on Conviction).
tion to provide protection to whistle-blowers in
Singapore.
297 CHAMBERS.COM
Civil Enforcement tinue any proceedings for any criminal offence.

As for civil enforcement, pursuant to Section 14 This is provided for in Article 35(8) of the Consti-
of the PCA, where a bribe has been given by any tution of the Republic of Singapore and Section
person to an agent, the agent’s principal may 11 of the CPC.
recover the value of the bribe as a civil debt. This
would allow, for example, a company to seek Accordingly, the AGC has unfettered discre-
damages from a former director or employee tion to extend any plea or sentencing offer to
who paid corrupt payments on account of their the offender concerned. The same would apply
dealings on behalf of the company. Any such to any plea or sentencing agreement arrived at
civil liability would be in addition to any penalty subsequent to negotiations with the offender or
or fine imposed as part of a criminal sentence. their legal counsel.
In addition to the civil recovery proceedings per- There are no published or standard guidelines on
mitted by the PCA, other types of civil actions the factors that may be taken into account by the
are available. For example, in certain circum- AGC in such offers or negotiations.
stances, it is possible for a company to bring a
civil action for conspiracy against its employee(s) One of the fairly recent introductions in enforce-
who orchestrated and/or participated in the giv- ment is the DPA regime. As stated at 1.4 Recent
ing/receiving of bribes. Key Amendments to National Legislation, a
DPA is a voluntary alternative in which a pros-
7.2 Enforcement Body ecutor agrees to grant amnesty in exchange for a
The CPIB is the agency responsible for the defendant agreeing to fulfil certain requirements
investigation and prevention of corruption in and specific conditions, such as implementing
Singapore. The CPIB is under the Prime Min- compliance programmes and/or co-operating in
ister’s Office (PMO) and reports directly to the investigations into wrongdoing by individuals.
Prime Minister. The Attorney General’s Cham-
bers (AGC) is the agency responsible for the For now there are no publicly available prosecu-
prosecution of offences. tion guidelines on when the AGC will enter into
a DPA with a corporate entity and it remains to
7.3 Process of Application for be seen how the DPA regime will affect trends in
Documentation investigations. Nonetheless this is a new option
Under Section 17 of the PCA, the director or a that the AGC can consider in exercising its pros-
special investigator of the CPIB may, without the ecutorial discretion.
order of the public prosecutor, exercise all or any
of the powers in relation to police investigations However the introduction of DPAs in Singapore
that are provided for under the CPC. Such pow- may be an indication of an increased focus on
ers include the powers of search and seizure as corporate entities by the Singapore government.
well as the power to examine witnesses. This is since the Singapore Ministry of Law stat-
ed that the DPA regime serves two main purpos-
7.4 Discretion for Mitigation es: (i) to encourage corporate reform to prevent
The Attorney General has the power, exercisable future offending and (ii) to facilitate investiga-
at their direction, to institute, conduct or discon-
298 CHAMBERS.COM
tions into wrongdoing both by the company and ers, forbearing to accurately report the amount
by individuals. of oil that Shell had loaded onto various ves-
sels (so as to mask the fact that misappropri-
7.5 Jurisdictional Reach of the Body/ ated oil had been loaded onto these vessels).
Bodies In exchange, these surveyors received bribes.
The CPIB can investigate offences committed by
any person within Singapore. For Singaporean On 31 March 2022, the General Division of the
citizens, the CPIB is empowered, by virtue of High Court sentenced one of the masterminds
Section 37 of the PCA, to investigate offences of this conspiracy, Juandi bin Pungot: see PP
committed outside Singapore. v Juandi bin Pungot [2022] SGHC 70. For his
role in the conspiracy, Mr Pungot was sentenced
Where offences committed outside of Singapore to 29 years’ imprisonment. Aside from Mr Pun-
are concerned, the CPIB can potentially work got, other co-conspirators were separately sen-
with the relevant jurisdiction to investigate the tenced to imprisonment terms varying with their
matter. In this regard, the Mutual Assistance in levels of involvement in the scheme.
Criminal Matters Act, Chapter 65A, provides
that Singapore may, in some circumstances, Another noteworthy recent decision is the High
request legal assistance from a foreign country. Court’s decision in Takaaki Masui v PP [2020]
Such assistance includes the taking of evidence, SGHC 265. That matter concerned one of Sin-
search and seizure, and locating or identifying gapore’s largest private sector corruption cases
persons of interest. to date. In that case, the two accused persons
were convicted of conspiring to obtain nearly
7.6 Recent Landmark Investigations or SGD2 million in bribes from a flour distributor.
Decisions involving Bribery or Corruption
On 14 April 2022, 12 individuals were charged 7.7 Level of Sanctions Imposed
for, among others, corruption offences in con- The courts determine each case on its unique
nection with a long-term and large scale con- facts, taking into account a myriad of factors.
spiracy to misappropriate oil from Shell Eastern Amongst other things, the courts will take into
Petroleum’s (Shell) Pulau Bukom site. account the offender’s level of culpability, as well
as the harm caused by the act.
The conspiracy involved a complex arrangement
which included, among others, configuring the
flow of misappropriated gas oil through routes 8. Review
that would avoid custody transfer meters, ensur-
ing that multiple pumps and tanks were moving 8.1 Assessment of the Applicable
at the same time and ensuring production of oil Enforced Legislation
into tanks from which oil was being misappropri- The CPIB publishes an annual report which,
ated. All these steps were carried out to mask amongst other things, highlights the key devel-
the misappropriation of oil. opments and trends in Singapore for the previ-
ous year in the field of anti-corruption.
Shell’s external surveyors were also involved in
this conspiracy. Their role involved, among oth-
299 CHAMBERS.COM
Based on statistics that were released on 5 May This is especially pertinent as Singapore
2022, the CPIB received 249 corruption-related approaches and/or transitions into a post-COV-
reports – a 4% increase from the 239 corruption- ID-19 world, where many global economies,
related reports received in 2020. industries and workplaces have seen significant
transformations.
These same statistics also showed that of the
249 said corruption-related reports, the CPIB For example, there is an increasingly prevalent
registered 83 reports as new cases for inves- trend of decentralised/remote working arrange-
tigation. That is, that the CPIB considered the ments in many economies, industries and
information received by way of these reports to workplaces. In fact, some companies may even
be pursuable. have employees working in an entirely different
country from its physical offices. This gives rise
Moreover, of these new cases registered for to fresh and evolving challenges relating to the
investigation, the majority of these cases detection of corruption and the ability of inves-
involved the private sector (89%), and this figure tigators to effectively and efficiently investigate
has remained relatively constant since 2017. In potential offences.
a similar vein, the majority of individuals pros-
ecuted in court in 2021 were from the private
sector (93%), and this figure has remained rela-
tively constant since 2017.

There have not been any recent announcements
regarding changes to the relevant legislation or
to the CPIB. Nonetheless, it can be expected
that the CPIB will need to assess its practices
and protocols in light of the constantly evolving
COVID-19 situation.
300 CHAMBERS.COM
Drew & Napier LLC is well-placed to help cli- senting clients in investigations or enforcement
ents navigate potential pitfalls and handle the proceedings brought by external bodies, in-
full range of proceedings that may arise when cluding public and law enforcement authorities.
businesses globally are increasingly being ex- In 2020, Drew & Napier united with some of the
posed to governmental and regulatory inves- most influential leading law firms in Southeast
tigations and enforcement action, resulting in Asia to form a network of blue-chip law firms –
civil, criminal and regulatory risk. The firm is Drew Network Asia (DNA), which operates as “a
experienced in handling cross-border investi- firm of firms” with international perspective and
gations concerning bribery, fraud, anti-money strong local expertise. The investigations team
laundering, whistle-blower complaints, tax and is regularly instructed by multinationals and list-
financial services offences. These include con- ed companies from a broad range of industries.
ducting internal investigations as well as repre-
Authors
Wendell Wong is a highly Paras Lalwani is a director in
respected civil, commercial and Drew & Napier’s dispute
criminal lawyer. His civil and resolution practice. Paras has
commercial practice includes extensive experience in handling
contracts and commercial high-value and complex
disputes, shareholder and commercial litigation and
director disputes, asset recovery, medical arbitration matters. He regularly appears before
negligence, product liability and cross-border the Singapore courts, and has also been
arbitration work. His criminal practice focuses involved in several ad-hoc and institutional
on commercial and business crime, fraud, arbitrations. Paras handles disputes relating to
securities, corruption, corporate governance- commercial contracts, corporate disputes,
related offences and investigation work, and he anti-fraud and anti-bribery investigations,
regularly engages in regulatory and compliance energy disputes (including renewables), digital
advisory work. Wendell has also acted as lead assets and cryptocurrency, civil fraud, banking
counsel in disputes and international and finance, infrastructure projects, as well as
arbitrations under the rules of the Singapore disputes involving trusts, tortious claims, and
International Arbitration Centre (SIAC), insolvency and bankruptcy proceedings. Paras
International Chamber of Commerce (ICC), the is also an arbitrator empanelled with the SIAC,
United Nations Commission on International HKIAC and THAC, amongst others.
Trade Law (UNCITRAL), and the Singapore
International Commercial Court (SICC).
301 CHAMBERS.COM
Andrew Chua is a senior

associate in the dispute
resolution practice of Drew &
Napier. His main areas of
practice include criminal
defence work in all levels of the
Singapore courts, white-collar and corporate
investigations as well as commercial litigation.
His criminal defence work includes advising
and representing individuals and entities on
matters involving corruption, cheating and
other financial/stock market-related offences.
Andrew is also a volunteer lawyer with the
Legal Assistance Scheme for Capital Offences
(LASCO) and the Criminal Legal Aid Scheme
(CLAS) where he advises and represents
individuals accused of a wide variety of
offences. Andrew is a council member of the
Law Society of Singapore.
Drew & Naper LLC

10 Collyer Quay
10th Floor
Ocean Financial Centre
Singapore
049315
Tel: +65 6535 0733

Fax: +65 6535 4906
Email: mail@drewnapier.com
Web: www.drewnapier.com
302 CHAMBERS.COM
SINGAPORE Trends and Developments

Contributed by:
Thong Chee Kun, Josephine Chee and Jacintha Gopal
Rajah & Tann Singapore see p.310
General Anti-corruption Outlook in Singapore vate sector individuals while the remaining 7%
in 2022 were public sector employees.
Singapore’s anti-corruption efforts continue to
be well regarded internationally. Transparency Over the past year, several high-profile corrup-
International ranked Singapore fourth out of tion-related prosecutions involving the private
180 countries in the 2021 Corruption Percep- sector were also widely publicised in the media.
tions Index. The Political and Economic Risk These cases involved Singapore’s strategic
Consultancy ranked Singapore as the least cor- industries, such as the bunkering and mari-
rupt country in its 2022 Report on Perceptions of time sector. For instance on 6 October 2022,
Corruption in Asia, the US and Australia. In the 3 bunker clerks from Sentek Marine & Trading
World Justice Project Rule of Law Index 2021, Pte Ltd (“Sentek”) were charged for, amongst
Singapore was ranked third for absence of cor- other offences, receiving bribes to remain out
ruption in government, and was the top Asian of Singapore in order to avoid investigations by
nation out of 139 countries ranked. the Singapore authorities into the suspected
involvement of Sentek and others in the receipt
In the domestic sphere, Singapore performed of misappropriated gas oil from Shell Eastern
similarly well in its anti-corruption efforts. In Petroleum (Pte) Ltd’s facility.
2021, the enforcement agency empowered to
investigate corruption offences in Singapore, the Developments in Singapore’s Jurisprudence
Corrupt Practices Investigation Bureau (CPIB), in Respect of Corruption-Related
received 249 corruption-related reports. While Prosecutions
this is a relatively low number, it is still a slight Lack of judicial endorsement for the
increase from the 239 corruption-related reports sentencing framework in Takaaki Masui v
received in 2020. A plausible explanation for the Public Prosecutor and another appeal and
slight increase in the number of corruption-relat- other matters [2021] 4 SLR 160
ed reports could be the rise in business activi- At the end of 2020, the Singapore High Court
ties as Singapore’s economy recovers from the introduced a new sentencing framework for pri-
impact of the COVID-19 pandemic. vate corruption offences under Sections 6(a) and
6(b) of the Prevention of Corruption Act 1960
Notwithstanding Singapore’s overall success in (PCA) in Takaaki Masui v Public Prosecutor and
fighting corruption, corruption in the private sec- another appeal and other matters [2021] 4 SLR
tor remains a live concern. In 2021, 89% of the 160 (“Masui HC”). Masui HC was a significant
cases registered for investigation with the CPIB decision as the High Court adopted, for the first
originated in the private sector. Similarly, in 2021, time, an analytical two-stage, five-step frame-
out of the 165 individuals prosecuted in court for work premised on parameters of harm and cul-
offences investigated by CPIB, 93% were pri- pability to derive a comprehensive sentencing
framework. The Masui HC sentencing frame-
303 CHAMBERS.COM
Contributed by: Thong Chee Kun, Josephine Chee and Jacintha Gopal, Rajah & Tann Singapore
work was also novel as it involved prescriptive ever, aimed at achieving mathematical precision
steps to derive an indicative sentencing range or that might unduly fetter the court’s discretion
sentence while still retaining judicial discretion in when sentencing should instead be determined
meting out individualised sentences bearing in based on a balanced assessment of various
mind offender-specific and offence-specific fac- considerations.
tors in each case.
Most recently, on 12 October 2022, the Singa-
Following Masui HC, the courts in subsequent pore High Court rendered the written grounds for
cases applied this sentencing framework for all its decision in Goh Ngak Eng v Public Prosecu-
private corruption offences. Both the Attorney- tor [2022] SGHC 254 (“Goh Ngak Eng”) where
General’s Chambers (or the state prosecutors) a new sentencing framework for private sector
and the defence in Masui HC also filed criminal corruption offences under Sections 6(a) and 6(b)
references to refer questions of law of public of the PCA was introduced. In doing so, the High
interest to the Court of Appeal, the apex court Court declined to adopt the sentencing frame-
in Singapore. work adopted in Masui HC.
On 30 December 2021, the Court of Appeal ren- While the Court of Appeal has yet to make any
dered its decision on the criminal references in observations on the sentencing framework in
Public Prosecutor v Takaaki Masui and another Goh Ngak Eng, the new sentencing framework
and other matters [2022] 1 SLR 1033 (“Masui envisages a simpler five-step analysis for a sen-
CA”). While the sentencing framework in Masui tencing court to derive an appropriate sentence
HC was not an issue before the court, the Court for private sector corruption cases.
of Appeal cautioned in its written grounds of
decision that the sentencing framework in Masui Sentencing trends have departed from the
HC was “excessively complex” and “technical prevailing conception that private sector
sentencing frameworks are prone to cause con- corruption should typically attract a non-
fusion and uncertainty, which are the very antith- custodial sentence
esis of a sound sentencing framework”. It was Regardless of the sentencing framework adopt-
further observed that “sentencing frameworks ed, recent decisions indicate that private sector
are never intended to achieve mathematically corruption can also attract stiff custodial sen-
precise sentences” and the Court of Appeal thus tences. This reflects Singapore’s tough stance
concluded that the Masui HC sentencing frame- towards all corruption-related prosecutions,
work was not endorsed. regardless of whether such corruption emanates
from the public or private sector. In this regard,
The Court of Appeal’s comments in Masui CA this paper will examine the case of Goh Ngak
are a timely reminder that sentencing frame- Eng. In Goh Ngak Eng, the High Court enhanced
works should only introduce as much complexity the appellant’s global sentence of 17 months
as is necessary to make the framework theoreti- and three weeks’ imprisonment for private sec-
cally just. The sentencing process ought to be tor corruption offences relating to Sections 6(a)
individualised and should not be reduced to an and 6(b) of the PCA, to 37 months, three weeks’
overly prescriptive and arithmetical exercise. The imprisonment. This is despite the fact that it was
sentencing framework in Masui HC was, how- the appellant who had appealed against the sen-
304 CHAMBERS.COM
tence on the basis that the sentence was mani- of the PCA (“conspiracy charges”). The appel-
festly excessive. The prosecution had not filed lant also pleaded guilty to four other charges of
a cross-appeal against the sentences imposed corruptly giving gratification under Section 6(b)
in the lower court. of the PCA, involving Raj and one other party,
Ong (“non-conspiracy charges”). A total of 40
Significantly, the case involved the maritime remaining conspiracy charges and non-conspir-
industry, which the Court considered to be a acy charges were taken into consideration for
strategic industry. The case has also important the purposes of sentencing.
takeaways for criminal defence lawyers, as well
as for companies seeking to enhance their anti- The District Judge imposed custodial terms
corruption and bribery policies. ranging from one week to nine months’ impris-
onment for each of the offences. The aggregate
The Decision in Goh Ngak Eng sentence that was imposed was 17 months
Facts of Goh Ngak Eng and three weeks’ imprisonment. The appellant
In Goh Ngak Eng, the co-accused persons con- appealed against the sentence on the basis that
spired to cause the amounts paid by Keppel FEL the sentence was manifestly excessive.
shipyard (KFELS) to be inflated in order to fund
the bribes ultimately paid to the co-accused per- Sentencing framework in Goh Ngak Eng
sons. The appellant was the director of Mega- In Goh Ngak Eng, the High Court declined to
marine Services Pte Ltd (“Megamarine”). The adopt the sentencing framework in Masui HC
appellant was approached by a co-accused, Raj, for the reasons set out by the Court of Appeal
who said that he would be able to refer jobs from in Masui (CA). The High Court instead took the
KFELS to vendors. Raj explained that he knew view that a less complex sentencing framework
the other co-accused, Lim, who was employed should be adopted based on the two-stage, five-
by KFELS and was in a position to recommend step framework in a prior decision by the High
to whom the jobs were to be awarded. Court in Logachev Vladislav v Public Prosecutor
[2018] 4 SLR 609, which was a case concerning
Raj and the appellant then decided that they cheating in a casino.
would seek vendors for jobs in KFELS and
would ask for their invoices to be marked The High Court in Goh Ngak Eng was also of the
up by more than 15%. The mark-up was to view that this sentencing framework should not
be shared between Lim, Raj, and the appel- be extended to Section 5 of the PCA (which do
lant. The total amount of corrupt gratification not relate to agents) or to cases of public sector
obtained by the co-accused persons from the corruption such as those involving public serv-
vendors was SGD879,853.63. In turn, KFELS ants and public bodies.
paid SGD566,289.15, in wrongful mark-ups in
respect of the invoices. The sentencing framework in Goh Ngak Eng is
summarised below.
The appellant subsequently pleaded guilty to 15
charges of abetment by engaging in a conspira- Step 1
cy with two others to corruptly obtain gratifica- At Step 1, the sentencing court identifies the lev-
tion under Section 6(a) read with Section 29(a) el of harm and culpability based on the offence-
305 CHAMBERS.COM
specific factors present in that case. In turn, the Step 2

offence-specific factors are categorised into At Step 2, the applicable indicative sentenc-
factors going towards harm, and factors going ing range would have to be identified. The High
towards culpability. Court set out the following indicative starting
sentences for an accused person who is con-
Factors going towards harm: victed after trial.
• actual loss caused to principal; • For cases of slight harm and low culpability: a
• benefit to the giver of gratification; fine or up to six months’ imprisonment.
• type and extent of loss to third parties; • For cases of slight harm and medium culpa-
• public disquiet; bility: six to 12 months’ imprisonment.
• offences committed as part of a group or • For cases of slight harm and high culpability:
syndicate; one to two years’ imprisonment.
• involvement of a transnational element; • For cases of moderate harm and low culpa-
• whether the public service rationale is bility: six to 12 months’ imprisonment.
engaged; • For cases of moderate harm and medium
• presence of public health or public safety culpability: one to two years’ imprisonment.
risks; • For cases of moderate harm and high culpa-
• involvement of strategic industry or sector; bility: two to three years’ imprisonment.
and • For cases of severe harm and low culpability:
• bribery of a foreign public official. one to two years’ imprisonment.
• For cases of severe harm and medium culpa-
Factors going towards culpability: bility: two to three years’ imprisonment.
• For cases of severe harm and high culpability:
• amount of gratification given or received; three to five years’ imprisonment.
• degree of planning and premeditation;
• level of sophistication; Step 3
• duration of offending; The third step is to identify the appropriate start-
• extent of the offender’s abuse of position and ing point within the indicative sentencing range.
breach of trust; In doing so, the court has regard to the offence-
• offender’s motive in committing the offence; specific factors and considers the harm and
• presence of threats, pressure or coercion; and culpability levels associated with the offending
• the role played by the offender in the corrupt conduct.
transaction.
Step 4
The High Court also indicated at [65] of its writ- The fourth step involves adjusting the indica-
ten judgment that “harm caused to a giver of tive starting point to take into account offender-
gratification” may be an offence-specific factor specific factors – ie, established aggravating and
in certain cases, but left it to a future occasion to mitigating factors personal to the offender.
determine whether this factor should be a harm-
related or culpability-related offence-specific
factor.
306 CHAMBERS.COM
Step 5 Involvement of a strategic industry

At the fifth step, where an offender has been The offences involved a strategic industry. The
convicted of multiple charges, the court will con- economic ramifications would be consider-
sider the need to make further adjustments to able should corruption take root in the maritime
take into account the totality principle. industry, which was observed in 2015 to account
for up to 7% of Singapore’s gross domestic
Application of the sentencing framework in product and 170,000 jobs.
Goh Ngak Eng
Applying the first step of the framework, the High The High Court found that the following culpabil-
Court found at [106] that that the following harm- ity-related offence specific factors were present.
related offence-specific factors were present for
the conspiracy charges. Amount of gratification given or received
SGD566,289.15, as stated above.
Actual loss caused to the principal
KFELS suffered the harm of being made to pay Degree of planning and premeditation
more than it ought to have in order to fund the Evident in the manner in which the bribes were
illicit gains of the conspirators. These wrongful sought.
payments amounted to SGD566,289.15. There
was also the potential harm caused as the Duration of offending
offences compromised the fair and safe procure- The offending took place on numerous occa-
ment process at KFELS. An unsuitable vendor sions over three years.
could lead to disastrous consequences given
the nature of KFEL’s business. In this regard, Offender’s motive in committing the offence
the High Court held that the District Judge erred While a portion of the gratification was used for
by finding that the conspiracy only resulted in Megamarine’s corporate tax, the appellant still
potential harm, and not actual harm. received SGD191,115.89 in respect of the con-
spiracy charges. Thus, the District Judge in the
Benefit to the givers of gratification lower court correctly observed that the appellant
The givers of gratification were able to success- “was not acting out of altruistic reasons when he
fully secure contracts with KFELS, which they committed the offences”.
otherwise would not have been awarded.
The High Court also considered the offence-
Type and extent of loss to third parties specific factors for the non-conspiracy charges.
The third-party contractors were deprived of an For the charges involving Ong, the appellant had
opportunity to quote for jobs with KFELS, which initiated a corrupt scheme, and had asked Ong
they might otherwise have had, if not for the con- to prepare fictitious invoices in return for a per-
spiracy. centage of the invoiced amount.
The offences were committed as part of a At the second stage of the framework, the High
group Court found that the District Judge erred in find-
Self-evidently the case given the conspiracy that ing that the conspiracy charges involved slight
existed between Raj, Lim and the appellant. harm/medium culpability. The High Court found
307 CHAMBERS.COM
that the correct assessment of the conspiracy charges that had been taken into consideration
charges was one of moderate harm/medium cul- for the purpose of sentencing. The significant
pability, with the result that the indicative start- mitigating factors were the appellant’s full co-
ing sentence for each of the conspiracy charges operation with the CPIB and his early plea of
would be one to two years’ imprisonment. As guilt.
for the non-conspiracy charges, the Court found
that these involved slight harm/low culpability. The High Court agreed that a reduction of around
25% from the indicative starting sentences was
At the third stage of the framework, having justified on account of the appellant’s early plea
regard to the various offence-specific factors, of guilt. Accordingly, the High Court held that:
particularly the significant amount of loss caused
to KFELS, the High Court found the following. • for the charge involving a gratification of
SGD107,000, the sentence would be reduced
• For the charge involving a gratification of to about 15 months’ imprisonment;
SGD107,000 – the appellant’s sentence • for the charges involving lower amounts
should fall within the middle to high level of of gratification of between SGD21,835.41
the indicative sentencing range; thus, a start- to SGD46,170.50, the sentences would be
ing sentence of 21 months’ imprisonment reduced to about ten to 12 months’ imprison-
should be imposed. ment; and
• For the charges involving lower amounts • for the non-conspiracy charges involving
of gratification between SGD21,835.41 to Ong, this may be reduced to three weeks’
SGD46,170.50 – the starting sentence was imprisonment per charge.
adjusted downwards to 14 to 16 months’
imprisonment per charge, as the appellant’s At the fifth stage of the application of the frame-
culpability in respect of those charges would work, the High Court was required to consider
be correspondingly lesser. whether the sentences ought to be adjusted on
• For the non-conspiracy charges – for the account of the totality principle. In Goh Ngak
charge involving Raj, this involved a small Eng, the Court considered whether the effect of
gratification sum of SGD3,000, and did not the sentence on the offender would be crushing
cross the custodial threshold; the High Court and not in accordance with his past record and
found that an indicative starting sentence of future prospects.
one month’s imprisonment was appropriate
for the charges involving Ong, bearing in mind The High Court considered it appropriate to
the appellant’s higher culpability in initiating order the appellant’s sentences to run as the
the corrupt scheme. District Judge had ordered – ie, that one sen-
tence from the charges relating to each vendor,
At the fourth stage of the framework, adjust- one sentence from the charges relating to Ong,
ments are to be made to the starting point to and one sentence from the charge relating to
account for offender-specific factors. Applying Raj run consecutively. Comparing the aggregate
the specific facts in the Goh Ngak Eng case, sentence as imposed by the District Judge (17
the High Court found that the relevant aggravat- months and three weeks’ imprisonment), against
ing factor to be taken into account was the 40 the sentence derived by the High Court (37
308 CHAMBERS.COM
months and three weeks’ imprisonment as well Singapore’s public administration. Insofar as
as a fine), the High Court found that the District Singapore’s strategic industries are concerned,
Judge’s decision was lenient and could not be the policy rationale is to prevent harm that may
said to be manifestly excessive. be caused to society arising from potential detri-
ment to the development of strategic industries.
Given the substantial divergence between the This in turn creates a greater need for companies
sentences imposed by the District Judge and operating in strategic sectors to ramp up their
that which the High Court had arrived at, a anti-corruption initiatives.
question arose as to whether the sentences
ought to be enhanced. This is notwithstanding It is also noteworthy that in Goh Ngak Eng,
that the prosecution did not file a cross-appeal the High Court was prepared to view the harm
against the sentences. The High Court was sat- caused from a broad perspective. Apart from
isfied that the sentences imposed by the Dis- the harm caused to KFELS (ie, KFELS had to
trict Judge were manifestly inadequate and that pay an inflated amount arising from the bribes),
an enhancement of the sentences for each of the offences compromised a fair and safe pro-
the conspiracy charges was necessary to fit the curement process at KFELS. Further, the High
severity of the subject offences. Court also rejected the appellant’s argument
that the vendors had paid a competitive price
Accordingly, the High Court dismissed the to KFELS. The Court found this argument irrel-
appeal, and the aggregate sentence imposed evant in the context of an offence under Section
was enhanced to 37 months and three weeks’ 6 of the PCA, which is to prevent the relationship
imprisonment. between an agent and his or her principal from
being undermined.
Implication of Goh Ngak Eng on Singapore’s
Enforcement and Legal Landscape The case of Goh Ngak Eng calls for companies
The authors believe that in bolstering anti- to tighten their compliance measures. Com-
corruption efforts/corporate compliance pro- panies should adopt a comprehensive host of
grammes, companies should have regard to the compliance measures, including leveraging data
offence-specific factors identified in Goh Ngak analytics, ensuring that there is a clear code of
Eng. This is especially so for companies that conduct and anti-fraud standards, as well as
play a public or quasi-public regulatory or over- implementing process controls as well as other
sight role, or companies in strategic sectors (eg, reliable whistle-blower mechanisms.
maritime and bunkering, banking and finance).
Where the public sector rationale is engaged in a

particular offence, or where a strategic industry
is involved, a stiffer sentence would be called
for. The public sector rationale refers to the pub-
lic interest in preventing a loss of confidence in
309 CHAMBERS.COM
Rajah & Tann Singapore has built a white-collar team forms an integral component of the firm’s
crime team that has earned a reputation as a fraud, asset recovery, investigations and crisis
leading practice both regionally and domesti- management team, which has been globally
cally, with an extensive portfolio that spans a recognised. Rajah & Tann Singapore is a mem-
spectrum of white-collar defence work, fraud ber firm of Rajah & Tann Asia, a network of over
investigations and advisory work. The team’s 800 fee earners across ten jurisdictions; it has
notable cases include advising corporations, fi- the reach and resources to deliver excellent ser-
nancial institutions and individuals in complex, vice to clients in the region including Singapore-
multi-jurisdictional matters such as the Petro- based regional desks focusing on Brunei, Ja-
bras Brazilian bribery scandal, the Malaysian pan and South Asia.
1MDB scandal and the Wirecard scandal. This
Authors
Thong Chee Kun is a partner at Josephine Chee is a partner at
Rajah & Tann Singapore. He was Rajah & Tann Singapore who
a former prosecutor of the specialises in a broad range of
Singapore Attorney General’s disputes and advisory work
Chambers. He is a recognised related to white-collar financial
specialist in the area of fraud crimes, investigations and
investigations and financial and regulatory regulatory offences. She has an active practice
crimes. He has extensive experience in in criminal defence work and regularly acts for
conducting corporate investigations and has corporations and individuals in financial crimes
advised clients in many major cases involving and offences. She has been involved in several
corporate and compliance breaches, landmark decisions that have shaped
corruption offences, tax-related offences, Singapore’s legal landscape, involving
fraud, cheating, criminal breach of trust, proceeds of crime, market securities fraud and
cybercrime as well as securities fraud. Chee casino cheating offences. Recently,
Kun has contributed to several legal research Josephine’s portfolio has expanded to include
publications. crisis management, in particular advising on
managing and reacting to investigations by
regulators and co-ordinating a regional
response to the client’s stakeholders.
310 CHAMBERS.COM
Jacintha Gopal is a senior

associate at Rajah & Tann
Singapore who specialises in a
wide range of white-collar
financial crimes, investigations,
and regulatory offences. She is
actively involved in criminal defence work and
acts for corporations and individuals in
financial crimes and offences. She has also
advised companies on regulatory issues
pertaining to anti-corruption and disclosure
obligations.
Rajah & Tann Singapore

9 Straits View
Marina One West Tower
#06-07
Singapore
018937
Tel: +65 65353600

Email: info@rajahtannasia.com
Web: www.rajahtannasia.com
311 CHAMBERS.COM
SPAIN
France
Law and Practice Spain

Contributed by: Portugal Madrid
Arantxa Geijo Jiménez and Elena Bescos Gracia

Geijo & Associates SLP see p.329
Contents
2.1 Bribery p.314
3. Scope p.316
5. Penalties p.318
Penalties p.319
312 CHAMBERS.COM
SPAIN Law and Practice
Contributed by: Arantxa Geijo Jiménez and Elena Bescos Gracia, Geijo & Associates SLP
1. Legal Framework for Offences and Good Governance (Ley 19/2013, de trans-
parencia, acceso a la información pública y buen
1.1 International Conventions gobierno).
Spain is a party to the following international
conventions relating to anti-bribery and anti- 1.3 Guidelines for the Interpretation and
corruption: Enforcement of National Legislation
Interpretation and enforcement of crimi-
• the OECD Convention on Combating Bribery nal offences is carried out by the judiciary. In
of Foreign Public Officials in International accordance with Article 1 of the Spanish Civil
Business Transactions (1997): ratified on 14 Code, law, custom and general principles of law
January 2000; are established as a source of law. Settled case
• the United Nations Convention against Cor- law (precedent) of the Supreme Court comple-
ruption (2003): ratified on 19 June 2006; ments the law. However, tribunals are bound by
• the Council of Europe Civil Law Convention the jurisprudence of the Constitutional Court,
on Corruption (1999): ratified on 16 December under Article 5 of the Organic Law on the Judi-
2009; ciary (L.O 6/1985). Likewise, international law
• the Council of Europe Criminal Law Conven- is part of Spanish legislation and directly appli-
tion on Corruption (1999): ratified on 28 April cable insofar as the relevant international treaty
2010; has been published in the Spanish Official State
• the Additional Protocol to the Criminal Law Gazette (Boletín Oficial del Estado) (Article 96 of
Convention on Corruption (2003): ratified on the Spanish Constitution).
17 January 2011; and
• the Convention drawn up on the basis of Arti- 1.4 Recent Key Amendments to National
cle K.3 (2) (c) of the Treaty on European Union Legislation
on the fight against corruption involving offi- Spain has transposed Directive (EU) 2018/843
cials of the European Communities or officials (the Fifth Money Laundering Directive) through
of Member States of the European Union. Royal Decree 7/2021. In addition, through
Organic Law 6/2021, Spain has reformed its
1.2 National Legislation Criminal Code in line with the content of Direc-
All relevant corruption-related criminal offences tive (EU) 2018/1673 (the Sixth Money Launder-
are contained in the Spanish Criminal Code ing Directive). In the context of anti-corruption,
(SCC) (Ley Orgánica 10/1995, de 23 de noviem- notable developments include the imposition of
bre). Administrative offences may be found in increased penalties where assets that are being
the Organic Law 6/2002 on Political Parties (Ley laundered are identified as the proceeds of cer-
Orgánica 6/2020, de Partidos Políticos), the Law tain offences, including business corruption.
5/2006 on conflicts of interest of members of the
government and senior officials of the general An additional amendment of the SCC concern-
state administration (Ley 5/2006, de regulación ing corruption-related criminal offences took
de los conlfictos de intereses de los miembros effect via the Organic Law 1/2019 of February
de Gobierno y de los Altos Cargos del a Adminis- 20th (Ley Orgánica 1/2019, por la que se modi-
tración General del Estado) and the Law 19/2013 fica la Ley Orgánica 10/1995, del Código Penal,
on Transparency, Access to Public Information para transponer Directivas del a Unión Europea
313 CHAMBERS.COM
en los ámbitos financiero y de terrorismo, y abor- by a court and liquidators. Only employees of
dar cuestiones de índole internacional). Specifi- state-controlled companies providing services in
cally, Organic Law 1/2019 includes amendments the public interest are included in this definition.
to corruption offences committed in the private
sphere and expands the conduct of corruption The definition of public officials also includes:
offences to foreign public officials of national
public institutions or international organisa- • any person employed or exercising functions
tions, jurors and arbitrators and legal entities, within the legislative branch, the government
in accordance with the recommendations of the or the judiciary, both within and outside the
Council of Europe’s anti-corruption body: the European Union;
Group of States Against Corruption (GRECO). • persons exercising public functions to a
European Union member state or any other
country, for the European Union or a public
2. Classification and Constituent international organisation;
Elements • public officials or agents of the European
Union or a public international organisation;
2.1 Bribery and
Bribery Involving Public Officials • any person who manages European Union
Bribery of public officials is provided for in Article financial interests or takes decisions on
419 of the SCC. This provision punishes a pub- related matters, within or without the Euro-
lic official who, acting within their competence, pean Union.
requests, receives or accepts a gift, favour or
payment of any kind either to act, to act against Bribery Involving Private Parties
their duties, or unfairly to delay an act that must Article 286bis of the SCC also punishes brib-
be carried out (passive bribery). Receiving and ery in business by private parties. The offence
requesting rewards by an authority or public may be committed by any person who promises,
official is also punished. The definition of bribe offers or grants an unfair benefit or advantage in
also includes admitting receipt of a gift because exchange for undue favour in the acquisition or
of the role or function of the authority or public selling of commodities, engagement of profes-
official. sional services or business relationships, and/
or by managers, administrators, employees or
It also criminalises the offer or giving of a gift or collaborators of a company or legal entity that
payment of any kind to the authority or public receives, requests or accepts any such unfair
official (active bribery). benefit or advantage.
The crime may be committed by an authority or 2.2 Influence-Peddling

public official. A public official is broadly defined Influence-peddling is criminalised in Articles 428
(Articles 423 and 427 of the SCC) as any person to 431 of the SCC. The crime may be committed
who participates in the exercise of public func- by an authority, public official or a private indi-
tions, including foreign public officials, national vidual who improperly influences another pub-
and international jurors and arbitrators, media- lic official to issue a decision that economically
tors, expert witnesses, administrators appointed benefits the former, or anyone else. Those who
314 CHAMBERS.COM
request or accept gifts or payments of any kind, The offence requires patrimonial damage and
or who promise or offer in order to influence use of the funds by that person, thus failing to
another improperly, are also criminally liable. observe their duties. Examples of this offence
include, for instance, making payments for ser-
In order to be criminally liable, abuse of power vices never carried out, authorising unapproved
is required from the public officials or the private operations or not claiming credits in favour of the
individuals improperly influencing the decision, public administration.
whether due to their position or a special rela-
tionship. Misappropriation of public funds is provided
for by Article 432.2 of the SCC. The definition
The definition of public official includes national includes public officials or authorities entrusted
and foreign public officials as defined in Article with public funds that have taken funds for them-
24 SCC and for the criminal offence of bribery selves or a third person, or have denied having
(Article 427 SCC) (see 2.1 Bribery). received the public funds. There must be an obli-
gation to deliver or return the public funds.
Article 433 of the SCC punishes the following The aggravated conduct of these offences
criminal conduct related to financial record- includes either of the following circumstances:
keeping committed by authorities or public offi-
cials: • serious damage or obstruction of a public
service; and
• falsifying their accounting; • where the value of the damage or appropri-
• creating or using accounting documents or ated assets is more than EUR50,000.
records containing false or incomplete infor-
mation; and Where the value of the damage or appropriated
• providing false information on the financial assets is more than EUR250,000, this is consid-
situation. ered super-aggravated conduct.
The same definition of a public official as is A lesser penalty is provided for when the dam-
used for the definition for bribery applies to age or appropriated asset/s amounts to less
these offences (Articles 24 and 427 of the SCC). than EUR4,000.
See 2.1 Bribery. It also extends to liquidators,
trustees of assets confiscated by public authori- The same definition of public official as that used
ties and individuals entrusted with public funds. for bribery applies to these offences (Articles 24
These offences may be also committed by legal and 427 of the SCC). See 2.1 Bribery. It also
entities. extends to liquidators, trustees of assets con-
fiscated by public authorities and individuals
2.4 Public Officials entrusted with public funds. These offences may
Mismanagement of public funds is punished by be also committed by legal entities.
Article 432.1 of the SCC. It may be committed
by a public official or authority that has been Chapter VIII of the SCC also punishes public
entrusted with the management of public funds. officials or authorities that:
315 CHAMBERS.COM
• collude with private individuals to defraud in 3.2 Geographical Reach of Applicable

matters of public procurement or liquidations Legislation
of public assets (Article 436 of the SCC); Spanish courts and tribunals have jurisdiction
• demand, directly or indirectly, fares or tariffs over criminal offences committed in Spain, not-
not due or higher than legally established withstanding Spain’s obligations pursuant to
(Article 437 of the SCC); international conventions to which it is a party
• swindle or defraud Social Security by abusing (Article 23.1 of the SCC). In this respect, Spain
their position (Article 438 of the SCC). has jurisdiction over any criminal offence if it is
so provided by an international convention to
2.5 Intermediaries which it is a party or by legislation from an inter-
Articles 419 to 422 of the SCC also punish the national organisation of which Spain is a mem-
receipt, request or admission of gift or payment ber.
of any kind through intermediaries.
Criminal jurisdiction is also established over
offences committed by Spanish nationals
3. Scope abroad (the active personality principle) in so far
as the following requirements concur:
3.1 Limitation Period
In the Spanish system, statutes of limitations • double criminality, unless it is not required by
are determined based on the maximum penalty applicable international law;
provided for the criminal offence (Article 131 of • a criminal complaint has been lodged by the
the SCC), namely: victim or the office of the prosecutor; and
• the person criminally responsible has not
• 20 years for offences with more than 15 years been acquitted, convicted or pardoned in
of imprisonment; a foreign country (in the case of conviction,
• 15 years for offences with more than ten and if the sentence has been partially served, a
less than 15 years of imprisonment and more reduction of the sentence will be considered).
than ten years of professional disqualification;
• ten years for offences with more than five As for the matter concerned, Article 23.4 of
and less than ten years of imprisonment or the Spanish Organic Act on the Judiciary (Ley
professional disqualification; Orgánica 6/1985 del Poder Judicial) expressly
• five years for offences with up to five years of establishes jurisdiction over corruption in the
imprisonment or professional disqualification; private sector or international economic trans-
and actions, provided that:
• one year for minor offences.
• the criminal proceeding is instituted against a
In cases where the conduct amounts to two or Spanish national;
more criminal offences, or in the case of con- • the criminal proceeding is instituted against a
nected offences, the limitation period would be foreign national resident in Spain;
the one provided for the most serious offence. • the offence has been committed by a man-
ager, administrator, employee or collaborator
within a company or legal entity; and
316 CHAMBERS.COM
• the offence has been committed by a legal Mistake of fact and mistake of law also exclude
entity, company, organisation, or by groups criminal liability if the mistake could not be
or any kind of association of persons with its avoided. Otherwise, the offence would be con-
headquarters or registered office in Spain. sidered committed by negligence in the case of
mistake of fact, or as having mitigating circum-
3.3 Corporate Liability stance in the case of mistake of law.
The SCC provides for corporate liability for cor-
ruption-related offences, namely, bribery (Article Regarding offences committed by directives
427bis of the SCC), influence-peddling (Article or persons representing the legal entity, Article
430 of the SCC), misappropriation of funds, 31bis of the SCC provides the following defenc-
as well as embezzlement and financial record- es for legal entities:
keeping (Article 435.5 of the SCC).
• directors have devised and implemented
Legal entities are criminally responsible if the effective prevention measures;
offence is committed in the name or on behalf • an independent department is in charge of
of them, or by those under their supervision in monitoring internal controls;
performing the activities of the legal entity. Both • the individuals have committed the crime
individuals and companies can be held liable circumventing the prevention and control
for the same offence. Also, the legal entity may mechanisms; and
be held responsible even if the individual crimi- • the monitoring and oversight of the internal
nally responsible has not been found and no affairs department has been sufficient.
criminal proceeding has been opened against
them. Likewise, directors may also be criminally As for offences committed by subordinates of
responsible, even if the offence was not commit- directors or legal representatives, legal entities
ted directly by them. shall be exempted from criminal liability if an
appropriate management and organisation sys-
tem is in place to prevent the offence.
4.2 Exceptions
4.1 Defences No exemptions are established to the aforemen-
General defences are found in Article 20 of the tioned offences.
SCC and include insanity, intoxication, self-
defence, necessity, insurmountable fear and 4.3 De Minimis Exceptions
legal duty/lawful capacity of office. No de minimis exceptions are provided for the
aforementioned offences.
In the case of insanity or intoxication, penal-
ties other than imprisonment may be imposed, 4.4 Exempt Sectors/Industries
namely, internment in a psychiatric institution, a No particular sectors or industries are exempted
detoxification centre or a special education cen- from the aforementioned offences.
tre, depending on the circumstances.
317 CHAMBERS.COM
4.5 Safe Harbour or Amnesty Programme 5. Penalties

Under Spanish legislation, there are no safe
harbour or amnesty programmes that exclude 5.1 Penalties on Conviction
criminal liability of legal entities. However, the Generally speaking, penalties for corruption-
following circumstances are established as miti- related offences include imprisonment, preven-
gating circumstances (Article 31 quater of the tion from public employment or role, prevention
SCC): from passive suffrage, and a fine.
• self-reporting – confessing the commission of Specifically, the following penalties are imposed.
the offence before becoming aware that legal
proceedings have been opened; Bribery committed within the private sector:
• collaborating with authorities by providing
relevant evidence that helps identify those • imprisonment – six months to four years;
criminally responsible; • professional disqualification – one to six
• repairing, in whole or in part, the damage years; and
caused; and • fine – up to three times the amount of the
• establishing, before the trial starts, compli- benefit or advantage.
ance procedures to prevent and discover
criminal offences. Bribery by public officials (acting against duties,
not acting or unfairly delaying an act):
As for individuals, in the case of bribery, Article
426 of the SCC provides that an individual who • three to six years of imprisonment; and
reports an offence, before the criminal proceed- • disqualification for public employment and
ings are opened and within two months from the passive suffrage – nine to 12 years.
date the criminal offence was committed, will not
be held criminally responsible. Bribery by public officials (acting within func-
tions in exchange for a gift, payment, offer or
In addition, reparation of the damage caused promise):
and active collaboration with authorities is also
expressly provided as a mitigating circumstance • imprisonment – two to four years;
for misappropriation of funds, embezzlement • fine – 12 to 24 months; and
and accounting offences by public officials (Arti- • disqualification from public employment and
cle 434 of the SCC). passive suffrage – five to nine years.
Reparations and self-reporting are also estab- Bribery (accepting a gift):

lished as a general mitigating circumstance for
individuals (Articles 21.4 and 5 of the SCC). • imprisonment – six months to one year; and
• disqualification from public employment – one
to three years.
Active bribery (offering or giving gifts or payment)

is punished with the same penalties. Likewise, in
318 CHAMBERS.COM
cases where the act of the public official relates • disqualification from obtaining subsidies or
to procurement procedures, subsidies or auc- tax or social security benefits for six to ten
tions, a penalty of disqualification from obtaining years.
them or tax or social security benefits from five
to ten years shall be imposed on the individual Misappropriation and mismanagement of public
or legal entity. funds by a public official:
Legal entities shall be punished with a fine of an • imprisonment – two to six years; and
amount depending on the term of imprisonment • disqualification from public employment and
provided for persons: passive suffrage – six to ten years.
• two to five years, or three to five times the Aggravated misappropriation and mismanage-
benefit obtained when the term of imprisonment of public funds:
ment is more than five years;
• one to three years, or two to four times the • imprisonment – four to eight years; and
benefit obtained for a term of imprisonment • permanent disqualification – ten to 20 years.
from two to five years; and
• six months to two years, or two to three times Misappropriation and mismanagement of public
the benefit obtained for up to two years of funds of less than EUR4,000:
imprisonment.
• imprisonment – one to two years; and
Influence-peddling by a public official: • disqualification from public employment and
passive suffrage for one to five years.
• imprisonment – six months to two years;
• a fine – up to twice the benefit obtained; and Accounting fraud without damage:
• disqualification from public employment and
passive suffrage – five to nine years. • disqualification from public employment and
passive suffrage for one to ten years; and
Influence-peddling by a private individual: • fine – 12 to 24 months.
• imprisonment – six months to two years; Accounting fraud with damage:

• a fine – up to twice the benefit obtained; and
• disqualification from obtaining subsidies • imprisonment – one to four years;
or tax or social security benefits: six to ten • disqualification from public employment and
years. passive suffrage – three to ten years; and
• a fine – 12 to 24 months.
Offering influence-peddling:
• imprisonment – six months to two years; Assessment of Penalties
• for public officials – disqualification from Guidelines to determine the penalty to be
public employment and passive suffrage one imposed are established in the First Book, Title
to four years; and III, Chapter 2 of the SCC. Judges and tribunals
319 CHAMBERS.COM
must provide the reason for the sentence being • the need to prevent the continuous criminal
imposed. activity;
• social and economic consequences;
When it comes to completed offences, the sen- • the position of the individual who failed to
tence must be imposed considering the par- comply with their duty of control; and
ticular circumstances of the perpetrator and the • penalties for legal entities cannot exceed the
seriousness of the offence. maximum established for individuals. Penal-
ties of more than two years may be imposed
A number of rules are stipulated as to when mit- only if the legal entity is a repeat offender or
igating and aggravating circumstances apply. the entity is used mainly to commit criminal
Thus, if there is one mitigating circumstance, offences.
the sentence imposed cannot go beyond the
first half of the penalty range. If two or more The penalty of liquidation of legal entities for
mitigating circumstances concur, the range of more than five years (or permanent) prohibition
the penalty to be imposed would go from half against performing certain activities or prevent-
of the minimum up to the minimum. Conversely, ing obtaining financial aid, procurement con-
when an aggravating circumstance applies, the tracts or tax or social security benefits of more
sentence is imposed within the second half of than five years, can only be imposed if any of the
the penalty range. If two or more aggravating cir- following requirements apply:
cumstances concur, up to one and a half times
the maximum penalty established for the offence • the legal entity has been convicted at least
is imposed. three times for offences of the same nature;
and
If aggravating and mitigating circumstances • the legal entity is used mainly to commit
concur, the judge must assess whether quali- criminal offences.
fying mitigating or aggravating circumstances
exist. Imprisonment of less than three months shall
always be replaced by a fine, community service
If the person has been convicted at least three or house arrest. Each prison day of imprison-
times for offences of the same nature, a sen- ment is replaced by two days of fine or a day of
tence may be imposed of up to one and a half community service or house arrest.
times the maximum.
Generally, the maximum time to be served is 20
In the case of an attempt, the judge must assess years, except if one of the offences is punished
the risk and the stage of execution of the offence. with up to 20 years of imprisonment (serving
a maximum of 25 years), one of the offences
Penalties for accomplices range from half the is punished with more than 20 years of impris-
minimum penalty established by law up to the onment (serving a maximum 30 years), two or
minimum. more offences are punished with more than 20
years of imprisonment (serving a maximum of 40
For legal entities, the same rules apply. The fol- years). In the case of terrorism, when one of the
lowing criteria shall be taken into account: offences is punished with more than 20 years of
320 CHAMBERS.COM
imprisonment, 40 years is also established as a In addition, organisational and management sys-

maximum. tems must:
• identify the activities in which the offences to
When the same conduct amounts to two or more be prevented may happen;
offences, the sentence imposed must be within • establish protocols or procedures defining the
the second half of the penalty provided for the decision-making process of the legal entity
most serious offence, unless it is higher than the and the execution of such decisions;
sum of the penalties of the offences separately. • implement adequate financial management
models;
• impose the obligation to report potential risks
6. Compliance and Disclosure and breaches to the supervising compliance
body;
6.1 National Legislation and Duties to • establish a disciplinary system sanction-
Prevent Corruption ing the failure to comply with the measures
Articles 31 bis and 31 quater of the SCC pro- established by the model; and
vide for the extinction and the mitigation of crimi- • impose periodic verification of and possible
nal liability for legal entities that have devised amendments to the model when there have
and implemented an effective compliance pro- been significant violations of its provisions,
gramme. However, the failure to set up a compli- or when organisational changes take place in
ance programme does not attract a legal con- the control structure or activity developed by
sequence. the entity.
Legal entities will benefit from a complete In this regard, the Spanish Prosecutor’s Office
exemption of criminal liability if: has issued its guidelines to Spanish prosecu-
• before the commission of the criminal tors on criminal prosecution of legal entities
offence, the administrative body has adopted (Circular 1/2016 sobre la responsabilidad penal
and effectively implemented organisational de las personas jurídicas conforme a la reforma
and management models that include the del Código Penal efectuada por Ley Orgánica
appropriate monitoring and control measures 1-2015). These guidelines identify the criteria to
to prevent crimes of the same nature or to assess the efficiency of compliance programmes
reduce significantly the risk of their commis- in light of the rules established in the SCC.
sion;
• the supervision of the functioning and execu- Among others, the effectiveness with which
tion of the compliance model has been such programmes prevent crimes is considered
entrusted to an independent body of the legal as a main criterion.
entity with autonomous initiative and control
powers; Finally, the fact that a legal entity has implement-
• the authors have committed the crime by ed a compliance programme before the begin-
fraudulently evading the organisational and ning of the trial hearing will be considered as a
management models; and mitigating circumstance.
• there has been no omission or insufficient
exercise of the supervision independent body.
321 CHAMBERS.COM
6.2 Regulation of Lobbying Activities 6.4 Protection Afforded to Whistle-

Lobbying activities are currently not regulated in Blowers
Spain by the central government. Some regional There is no specific law on whistle-blowers’
communities have enacted their own laws to protection in Spain. However, the Spanish
regulate lobbying while others have introduced Prosecution Office, in its Circular 1/2016 (see
transparency registers as a way of regulating 6.1 National Legislation and Duties to Prevent
interactions between interest groups and senior Corruption), has indicated that the obligation
government officials (these include Cataluña, to report in compliance programmes cannot be
Madrid, Valencia and Castilla la Mancha). imposed without the establishment of whistle-
blowers’ protective measures.
bribery and Anti-corruption Provisions In addition, the Supreme Court and the Consti-
There are no specific provisions imposing the tutional Court have found wrongful dismissals,
disclosure of anti-bribery and anti-corruption both under the right to freedom of information
violations. However, under Spanish legislation, (Article 20.1.d of the Spanish Constitution) and
individuals have the obligation to report crimes the right to freedom of expression (Article 20.1.a
of which they become aware. Articles 259 and of the Spanish Constitution), when the employ-
262 of the Spanish Criminal Procedure Code er has dismissed the employee after they have
(Real Decreto de 14 de septiembre de 1882 reported criminal offences.
por el que se aprueba la Ley de Enjuiciamiento
Criminal) require that those who witness a pub- Following the European Court of Human Rights
lic criminal offence, or who become aware of jurisprudence, the Spanish Supreme Court has
its commission because of their position, pro- also accepted anonymous complaints as a basis
fession or job, report the offence to the public to open criminal investigations.
authorities. These provisions also apply to brib-
ery and other corruption cases. Finally, data protection legislation protects the
identity of the individual reporting offences in the
The penalty provided for the breach of the report- private sector.
ing obligation amounts to the imposition of a fine
of up to 250 pesetas (EUR1.5). The legislature 6.5 Incentives for Whistle-Blowers
has not converted this low amount into euros, There are no incentives for whistle-blowers to
since in practice the provisions are not enforced. report bribery or corruption offences in Spain.
In addition, the implementation of a compliance For instance, Roberto Macias leaked files involv-
programme imposing the obligation to report ing corruption made by the trade union UGT
potential risks and breaches is one of the con- (General Union of Workers) in Andalucía. In May
ditions for the exemption of criminal liability of 2020, he was charged with revealing workplace
legal entities Thus, this would include the report- secrets and sentenced to two years of impris-
ing of anti-bribery and anti-corruption violations. onment. He was denied immunity as a whistle-
blower, since Spanish legislation does not pro-
vide for this protection.
322 CHAMBERS.COM
6.6 Location of Relevant Provisions ciplinary sphere. Sanctions provided for include
Regarding Whistle-Blowing the dismissal from the public office held by the
There are no specific provisions regarding whis- offender, prevention from receiving compen-
tle-blowers in Spanish criminal legislation. There satory pensions, the obligation to restore the
are some provisions regarding whistle-blowers amounts unduly received and the obligation to
in administrative legislation, for instance, in the compensate the Public Treasury. Furthermore,
Private Insurance Organisation and Supervi- it is provided that perpetrators of very serious
sion Act (Ley 20/2015, de ordenación, supervi- offences may not be appointed to occupy cer-
sion y solvencia de las entidades aseguradoras tain public positions for a period of between five
y reaseguradoras), and in the Organic Law on and ten years.
Data Protection and Guarantee of Digital Rights
(Ley Orgánica 3/2018 de Protección de Datos 7.2 Enforcement Body
Personales y garantía de los derechos digitales). In Spain, investigative phases are conducted by
examining magistrates and any public prosecu-
tor has the competency to prosecute corruption
7. Enforcement cases.
7.1 Enforcement of Anti-bribery and Anti- In addition, there is a specialised Anti-Corruption

corruption Laws Prosecution Office (Fiscalia Especial contra la
In Spain, there are no specific anti-bribery and Corrupcion y la Criminalidad Organizada). This
anti-corruption laws. As mentioned in 1. Legal office is competent to investigate particularly
Framework for Offences, corruption-related important cases of economic crimes and corrup-
offences are provided for in the SCC. tion-related crimes committed by public officials
in the exercise of their official duties. It has real
Administrative offences may be found in the investigative capacities accomplished by tax
Organic Law 6/2002 on Political Parties (Ley inspectors, auditors and members of the Nation-
Orgánica 6/2020, de Partidos Políticos), Law al Police, and the Civil Guard (Guardia Civil). It
5/2006 on conflicts of interest of members of the is composed of 29 prosecutors. The Anti-Cor-
government and senior officials of the general ruption Prosecutor’s Office can also intervene
state administration (Ley 5/2006, de regulación directly in any criminal proceeding concerning
de los conflictos de intereses de los miembros corruption cases of special importance in the
de Gobierno y de los Altos Cargos del a Admin- first instance or in appeal. The Attorney General
istración General del Estado) and Law 19/2013 (Fiscal General del Estado) evaluates whether a
on Transparency, Access to Public Information case is of special importance requiring the inter-
and Good Governance (Ley 19/2013, de trans- vention or investigation by the Anti-Corruption
parencia, acceso a la información pública y buen Prosecutor’s Office.
gobierno).
Concerning administrative bodies, there is no
Law 19/2003 establishes a sanctions regime national anti-corruption agency. In this respect,
structured in three areas: infringements in mat- Spain does not have a general anti-corruption
ters of conflict of interest, in matters of eco- strategy. However, some local and autonomous
nomic-budgetary management and in the dis- communities have created anti-corruption agen-
323 CHAMBERS.COM
cies with investigatory powers, such as the Anti- precautionary measures or investigative meas-
Fraud Office of Cataluña, the Agency for the Pre- ures by the judge.
vention and Fight against Fraud and Corruption
of the Valencian Community, the Office for the 7.4 Discretion for Mitigation
Prevention and Fight against Corruption in the Spanish criminal legislation does not recognise
Balearic Islands, the Accounts Council of Gali- pre-trial diversion, deferred prosecution agree-
cia, and the Municipal Office against Fraud and ments or other similar settlement mechanisms.
Corruption of the Madrid City Council. As such, only Article 31 quater of the SCC pro-
vides that the self-reporting of a criminal offence
Some of those agencies have only investiga- or the collaboration in the investigation are con-
tory powers, whereas others can also impose sidered as mitigating circumstances.
administrative sanctions based on their statutes.
For instance, the Valencian Agency can impose Although nothing is provided in the Spanish leg-
administrative sanctions on any person who islation, the prosecutor may offer a more lenient
obstructs whistle-blowers’ actions or provides sentence in exchange for the defendant plead-
untrue information. ing guilty.
Regarding administrative offences, the Coun- Pursuant to the Spanish Criminal Procedure
cil of Ministers and the Ministry of Finance and Code (SCPC) guilty pleas apply only if the pen-
Public Administration are competent to institute alty does not exceed six years of imprisonment.
disciplinary proceedings and impose sanctions, In any case, guilty pleas have to be approved by
depending on the position of the offender and the competent court. If accepted, the trial does
the seriousness of the offence. The Conflict of not take place and the court issues a judgment
Interests Office is competent to investigate in imposing the accepted sentence (Articles 781
certain cases. and 655 of the SCPC).
7.3 Process of Application for Legal entities may plead guilty by nominating
Documentation a specially designated person with a special
In Spain, prosecutors have limited powers con- power of attorney.
cerning the gathering of information. Prosecu-
tors may start an investigation after receiving a A court may not accept a guilty plea if it consid-
complaint from a private person or an admin- ers that the sentence should be higher in the
istration, but they may also act ex officio. Fol- case of minor sentences (Article 655 of the CPC),
lowing a preliminary investigation, prosecutors or to correct the qualification of the crime and
have to decide whether to dismiss the case or impose an appropriate sentence in accordance
to refer it to the competent examining magis- with the law prior to acceptance of the pleading
trate to carry out further preliminary proceed- (Article 787.3 of the SCPC) in cases of prison
ings. In turn, the examining magistrate has a sentences.
broad range of tools to gather information and
documents concerning the offence. In this case,
prosecutors may only request the adoption of
324 CHAMBERS.COM
7.5 Jurisdictional Reach of the Body/ ocide, and crimes against humanity. However,
Bodies recently, extra-territorial jurisdiction has been
Any bribery or corruption act committed in Spain used to prosecute corruption and money laun-
can be investigated by Spanish authorities. dering.
Moreover, Article 23 of the Spanish Organic Act 7.6 Recent Landmark Investigations or
on the Judiciary (Ley Orgánica 6/1985 del Poder Decisions involving Bribery or Corruption
Judicial) establishes the rules for Spanish extra- There are several high-profile cases concern-
territorial jurisdiction. Acts abroad may be inves- ing corruption charges in Spain. Some notable
tigated by Spanish courts if: cases are outlined below.
• they are committed by Spanish citizens; • Trial hearings began on 13 October 2021
• the acts are also punishable at the place of against a Spanish former police officer for
execution (or there is an international treaty blackmail and corruption. The allegations
allowing the prosecution); against him include spying and blackmail-
• a criminal complaint has been filed by the ing notorious politicians, businessman and
public prosecutor or the aggrieved party; and organisations in Spain on behalf of wealthy
• the criminal adjudication has not been made clients. Prominent figures and organisations
abroad. have also been accused of using the police
officer’s services, including the ex-Executive
For corruption in international business and Chairman of Spanish bank BBVA and Spain’s
economic transactions committed by Spanish top energy firm’s (Iberdrola) chairman and
citizens or foreigners abroad, extra-territorial CEO.
prosecution is also allowed if: • The Azud case is a criminal case involving
corruption of public officials of the local gov-
• the criminal procedure is directed against a ernment of the city of Valencia in relation to
Spanish citizen; urban constructions.
• the criminal procedure is brought against a • In the so-called Taula case, 49 city councillors
foreign citizen residing in Spain; have recently been indicted with corruption
• the offence has been committed by the exec- offences. The political party Partido Popular,
utive, administrator, employee, or collabora- as a legal entity, has also been indicted within
tor of a corporation, company, association, the criminal proceedings.
foundation or organisation that has its head- • The Gurtel case is a political corruption case
quarters or registered address in Spain; or which implicated the Spanish People’s Party
• the offence has been committed by a legal (PP). This case is considered as “Spain’s
person, company, organisation, groups or any Watergate” involving EUR123 million and
other kind of entity or group of people that 200 suspects. It was found that there existed
has its headquarters or registered address in a corrupt bribes-for-contracts network that
Spain. operated across six Spanish regions between
1999 and 2005. Last October 2020, Spain’s
Traditionally, Spain has used its extra-territorial Supreme Court confirmed criminal penalties,
jurisdiction to prosecute terrorism, torture, gen- including charges for corruption, against 29
325 CHAMBERS.COM
individuals and upheld the civil liability of the pected to have received EUR88 million as a
People’s Party. commission from Saudi Arabia’s king Abdul-
• The ERE case is another prominent politi- lah. On 3 November 2020, the Prosecutor’s
cal corruption case which involved Spain’s Office of the Supreme Court also assumed
Socialist Party (PSOE) in the region of Anda- another investigation against the former
lucia. High-ranking PSOE officials (including king and other royal members. The facts are
two of Andalucia’s ex-presidents) were found unclear, but the investigation is based on cor-
to be involved in a corrupt scheme where ruption facts.
funds meant for the unemployed and strug-
gling companies were granted instead to per- 7.7 Level of Sanctions Imposed
sons and entities with close ties to the PSOE The Supreme Court has recently confirmed the
members involved. It was found that at least conviction of the political party “PP” and 29
EUR680 million of public funds were diverted individuals in the Gurtel case. The political party
through the corrupt scheme between 2000 has been found civilly responsible. The minimum
and 2009. On 19 November 2020, the Pro- sentence has been five months of imprisonment
vincial Court of Sevilla (Audiencia Provincial and the most serious sentence imposed on one
de Sevilla) convicted 19 former high-ranking of the defendants has been 51 years of impris-
officials of misconduct and the misuse of onment. The other four defendants’ sentences
public funds. range between 27 and 40 years of imprison-
• The Palau de la Música case is a case involv- ment. Six defendants’ sentences range between
ing bribes in public contracts amounting 12 and 18 years of imprisonment. The rest of
to EUR6.6 million between 2000 and 2009, the defendants’ punishments range between six
directed by the president of the Catalan months and nine years of imprisonment.
Palace of Music. In April 2020, the Supreme
Court confirmed the sentences of the former In the ERE case, the Provincial Court of Sevilla
president of the Catalan Palace of Music and (Audiencia Provincial de Sevilla) convicted 19
its manager. out of the 21 of the accused individuals. Two
• The Púnica case also involves the People’s individuals were sentenced to nine years of spe-
Party in corruption charges. The investiga- cial disqualification. Sentences of imprisonment
tion is based on alleged commission in the ranged from a minimum of six years to a maxi-
exchange of public contracts in the Com- mum of seven.
munities of Madrid and Valencia. The total
amount defrauded amounted to EUR250 mil-
lion over two years. The investigation impli- 8. Review
cated 50 officials and is still ongoing.
• Spain’s former king Juan Carlos is also under 8.1 Assessment of the Applicable
investigation, which is being carried out by Enforced Legislation
the Prosecutor’s Office of the Supreme Court, The last OECD report on the implementation of
over his alleged role in a deal under which the OECD Anti-Bribery Convention by Spain dat-
a Spanish consortium won a EUR6.7 bil- ed from 2015, when Spain had not yet amended
lion contract to build a high-speed rail line in its anti-bribery provisions. Among other things,
Saudi Arabia. The Spanish former king is sus-
326 CHAMBERS.COM
the OECD was concerned by the lack of prose- (a) reconsidering the method of selection
cution-based corruption charges. and the term of tenure of the Prosecutor
General;
In 2019, the GRECO, monitoring states’ compli- (b) establishing clear requirements and pro-
ance with anti-corruption standards, published cedures in law to increase transparency of
two reports evaluating Spain on: i) “preventing communication between the Prosecutor
corruption and promoting integrity in central General and the government;
Governments (top executive functions) and law (c) exploring further ways to provide for
enforcement agencies” and ii) “corruption-pre- greater autonomy in the management of
vention in respect of members of parliament, the means of the prosecution services;
judges and prosecutors.” The GRECO noted (d) developing a specific regulatory frame-
that Spain was implementing certain recom- work for disciplinary matters in the
mendations, such as the adoption of a Code of prosecution service, which is vested with
Conduct for the members of the Congress of appropriate guarantees of fairness and
Deputies. However, the GRECO recommended effectiveness and is subject to independ-
reinforcing the regime applicable to top execu- ent and impartial review.
tive functions, the police, and the Civil Guard.
The GRECO also recommended that Spanish In addition, the GRECO concluded that Spain
authorities prioritise the creation of a co-ordi- has not complied with the recommendation
nated strategy against corruption. of carrying out an evaluation of the legislative
framework governing the General Council of the
In March 2021, GRECO issued its second com- Judiciary (CGPJ) and of its effects on the real
pliance report on Spain. It stated that Spain had and perceived independence of this body from
complied with six out of eleven recommenda- any undue influence, with a view to remedying
tions issued by GRECO in 2013. It concluded any shortcomings identified.
that Spain had partially complied with four rec-
ommendations. Additionally, in 2019, Transparency International
ranked Spain 30th out of 180 countries with a
• The introduction of rules on how members of 62/100 score in its corruption perception index
Parliament engage with lobbyists and other in the public sector.
third parties who seek to influence the legisla-
tive process. Finally, in 2018, the European Green Party
• That objective criteria and evaluation require- released the report “The cost of corruption
ments be laid down in law for the appoint- across the EU” which indicated that in Spain
ment of the higher ranks of the judiciary (ie, corruption costs amount to EUR90 billion annu-
Presidents of Provincial Courts, High Courts ally, representing 8% of its GDP.
of Justice, the National Court and Supreme
Court judges), in order to ensure that these 8.2 Likely Changes to the Applicable
appointments do not cast any doubt on the Legislation of the Enforcement Body
independence, impartiality and transparency Spain, as any other EU member state, is required
of this process, by: to transpose Directive (EU) 2019/1937 of the
European Parliament and of the Council of 23
327 CHAMBERS.COM
October 2019 on the protection of persons who • the second title created an “independent
report breaches of Union law, by 17 Decem- public-integrity authority” which controlled
ber 2021. The Directive protects persons who and monitored the compliance by the authori-
report certain infringements of Union law, irre- ties and personnel of the public sector with
spective of how national law classifies them, their obligations concerning conflicts of inter-
whether administrative or criminal. This includes est, incompatibility regimes and good govern-
the reporting of anti-bribery and anti-corruption ance; and
violations. Spain has already started work on • the third title provided the legal regime of the
preparing this transposition. infractions and sanctions that were commit-
ted because of their non-compliance with the
It must be noted that, in June 2020, the Span- law.
ish Parliament voted down a law proposal on
anti-corruption (Ley integral de lucha contra la In addition, in April 2020, the Ministry of Justice
corrupción y proteccion al denunciante) which started drafting a proposed legislation to amend
established, for the first time in Spain, a legal the Criminal Procedure Code (Ley de Enjuiciami-
framework of anti-corruption provisions for both ento Criminal). Among others, it is under consid-
the public and private sectors. Under the regime, eration to allow prosecutors in the pre-trial stage
whistle-blowers benefited from immunity against to carry out judicial investigations without an
retaliatory measures carried as a consequence examining magistrate. Under the current system,
of their reporting. the examining magistrate has the power to con-
duct the investigation and prosecutors may only
The law proposal included the following titles: request the adoption of precautionary measures
or investigative measures by the judge.
• the first title provided the protection of per-
sons who report anti-corruption violations
and their rights;
328 CHAMBERS.COM
Geijo & Associates SLP is a boutique law firm and other international bodies, with particular
that specialises in INTERPOL matters as well experience of politically exposed persons. Its
as international, criminal and human rights law. main asset is the unique experience represent-
With almost 20 years’ experience in numerous ing wanted individuals or individuals at risk of
jurisdictions around the world, the firm offers being wrongfully targeted before the Commis-
unique legal and strategic solutions to complex sion for the Control of INTERPOL’s Files. The
transnational problems. Its outstanding team firm also advises and represents clients con-
of lawyers is qualified in common law and civil cerning white-collar crimes, international judi-
law jurisdictions and fluent in Spanish, English, cial co-operation and international organisa-
French and Italian. The firm represents clients in tions. It also provides legal advice on corporate
national courts in Spain, international tribunals compliance and data protection.
Authors
Arantxa Geijo Jiménez is a Elena Bescos Gracia is an
Spanish attorney and a member attorney member of the New
of the Valencia Bar Association York Bar (2019) who specialises
(2003) and founding partner of in public international law,
Geijo & Associates SLP. In including human rights,
addition to her practice, she is investment arbitration and
also currently of counsel at Freeh Sporkin & international criminal law. Prior to joining Geijo
Sullivan, LPP. She has previously served as & Associates, she worked in a public
counsel for the INTERPOL General Secretariat international law boutique firm in London,
Office of Legal Affairs at its headquarters in where her work focused on INTERPOL matters
France, where she focused on complex and investment arbitration. She also worked at
international criminal arrest warrant requests the UN headquarters in New York on corporate
(Red Notices) and represented INTERPOL in sustainability and international relations
litigation. Arantxa has worked at a number of matters. Elena’s previous experience also
prestigious firms in Spain and London as well includes working as a financial crime
as the Spanish Agency for Development and consultant in the UK, where she advised
Co-operation. She has advised clients around financial institutions on how to strengthen
the globe. financial crime policies and systems.
329 CHAMBERS.COM
Geijo & Associates SLP

Calle Roger de Lauria 11
pta. 1
46002
Valencia
Spain
Tel: +346 7384 5710

Email: Info@geijoandassociates.com
Web: www.geijoandassociates.com
330 CHAMBERS.COM
SPAIN Trends and Developments

Contributed by:
Arantxa Geijo Jiménez and Elena Bescos Gracia
Geijo & Associates SLP see p.335
Introduction what progress has been made since the publica-

On 29 March 2022, the Group of States against tion of GRECO’s report.
Corruption (GRECO), the Council of Europe’s
anti-corruption monitoring body, published its GRECO’s Fifth Evaluation Round Compliance
Fifth Evaluation Round Compliance Report on Report on Spain
Spain (the “2022 Report”), dealing with prevent- As stated above, the 2022 Report sought to
ing corruption and promoting integrity in central evaluate and examine the implementation sta-
government (top executive functions) and law tus and the level of compliance of each of the
enforcement agencies. 19 recommendations made in the 2019 Report.
This 2022 Report analyses the measures taken The Report is divided into two sections which
by Spain to implement the recommendations evaluate the implementation status of the rec-
contained in GRECO’s Fourth Round Evalua- ommendations made in relation to “Preventing
tion Report (the “2019 Report”), published on corruption and promoting integrity in central
13 November 2019. In this manner, it serves as governments (top executive functions)” and
an evaluation tool to monitor Spain’s progress “Preventing corruption and promoting integrity
in the improvement of its anti-corruption legisla- in law enforcement agencies”, respectively.
tive framework, as well as the measures that still
need to be adopted. Below is an overview of GRECO’s key findings.
GRECO concluded that Spain did not implement Preventing corruption and promoting
any of the 19 recommendations contained in its integrity in central governments (top
2019 Report; only seven recommendations were executive functions)
partially implemented. This, however, does not This section covers recommendations i–x. Of
mean that progress is not being made. Spain those recommendations four have been partially
continues to make progress in its anti-corrup- implemented (recommendations iii, iv, viii and ix)
tion legislative agenda and notable progress has and six have yet to be implemented (i, ii, v, vi,
been made since the completion of GRECO’s vii and x).
report. This is, in turn, reflected in Transparency
International’s Corruption Perception Index of Partially implemented recommendations
2021, where Spain scored 61/100 and ranked Partially implemented recommendations con-
tenth in the European Union and 34th globally, cerned:
compared to 62/100 in 2020 and 58/100 in 2018.
• the enactment of a code of code of conduct
The present article provides a summary and for persons with top executive functions as
commentary of GRECO’s most relevant recom- well as practical measures for its implementa-
mendations and findings and, where relevant, tion;
331 CHAMBERS.COM
• advancing the implementation of Law • devising a strategy to analyse and mitigate

19/2013 on Transparency, Access to Public risk areas involving conflicting interests and
Information and Good Governance; corruption of persons with top executive
• widening the scope of publication require- functions and to formulate a plan of action
ments of financial disclosures to include accordingly;
detailed information and considering reducing • advancing the implementation of Law
reporting and publication timeframes; and 19/2013 on Transparency, Access to Infor-
• the strengthening of “the advisory, superviso- mation and Good Governance and raising
ry and enforcement regime regarding conflicts awareness among the general public of their
of interest of persons with top executive func- rights of access;
tions.” • providing the Council for Transparency and
Good Governance with further independence,
In the context of progress made in these areas, authority and resources;
GRECO makes reference to the government of • the regulation of lobbying; and
Spain’s IV Open Government Plan (2020–2024), • review by an independent body of the legisla-
“particularly, regarding transparency, account- tion governing post-employment restrictions.
ability in the public sector across the line, as
well as the development of a more strategic The failure to implement the recommendation
and holistic anti-corruption approach.” It is regarding the issue of “aforamiento” – the alter-
worth noting that the European Commission, native justice system for criminal responsibility
in its 2022 Rule of Law Report (Country Chap- to which members of government, including the
ter on the rule of law situation in Spain), mirrors president, ministers, deputies and senators, are
GRECO’s support of the Open Government Plan subject, deserves special mention. This is a con-
and its commitment to “strengthen the system tentious issue in Spain, especially in view of the
to prevent conflicts of interests and incompat- political corruption that has prompted the arrest
ibilities including improved conflicts of interests and conviction of high-ranking government offi-
rules.” cials within Spain’s two main parties: the Par-
tido Popular (PP) and Partido Socialista Obrero
GRECO especially welcomes the “intensified Español (PSOE). Notably, various autonomous
advisory and supervisory role of the Office for regions (including Balearas, Canarias, Canta-
Conflicts of Interest (OCI)” while reiterating the bria, Murcia, La Rioja and Aragon) have either
importance of the reinforcement of the OCI’s abolished or are in the process of abolishing the
independence, autonomy and available resourc- application of this alternative criminal respon-
es. sibility system in the executive and legislative
branches. GRECO explains that the authorities
Recommendations that have not been in Spain have informed it of some initiatives to
implemented “restrict the scope of aforamiento to acts com-
Recommendations that have not been imple- mitted in the exercise of office” while at the same
mented include: time underscoring “the inherent difficulties of a
constitutional amendment and the need for a
• reinforcing the transparency and integrity very broad parliamentary agreement”. GRECO is
regime applicable to advisors; aware and appreciates the “challenge of a legal
332 CHAMBERS.COM
reform in this area”; nonetheless, and under- seven not been implemented (xi, xiii, xiv, xvi, xvii,
standably, it “calls on the authorities to push for xviii and xix).
effective action” so that “it does not hamper the
criminal justice process in respect of Members Partially implemented recommendations
of Government suspected of having committed Partially implemented implementations concern:
corruption related offences”.
• the adoption of a code of conduct by the
An additional recommendation that has not Civil Guard and the completion of the Civil
been implemented but where progress has been Guard and National Police’s code of conduct
made is the introduction of a legal framework with guidelines and practical measures for its
to regulate lobbying activities. Specifically, “how implementation; and
persons entrusted with top executive functions • a review by the National Police and the Civil
engage in contacts with lobbyists and other third Guard of career-related internal processes.
parties […] and that sufficient information about
the purpose of these contacts be disclosed”. GRECO applauds improvement in the Civil
Indeed, and despite this recommendation, lob- Guard’s ethics infrastructure, especially the
bying activities are still not regulated in Spain drafting of a new code of conduct, which had
by the central government. Some regional com- not yet been adopted at the time of completion
munities have enacted their own laws to regulate of GRECO’s report. In this regard, there has been
lobbying while others have introduced transpar- notable progress and the code of conduct for
ency registers as a way of regulating interactions Civil Guard staff was published on 4 March 2022.
between interest groups and senior government
officials (these include Cataluña, Madrid, Valen- GRECO also welcomes “the development of
cia and Castilla la Mancha). GRECO mentions targeted policies in the Police and Civil Guard
and welcomes certain developments aimed to to promote gender equality” and acknowledges
regulate lobbying, including a preliminary draft “the steps taken by the Civil Guard to review its
bill. This law proposal – the Law of Transpar- career internal processes” and concludes that
ency and Integrity in the Activities of Interest the Civil Guard has met the pertinent recommen-
Groups (Ley de Transparencia y de Integridad dation but not the National Police, which “has
en las Actividades de los Grupos de Interés) – yet to substantiate further progress”. It is impor-
was indeed presented and approved by Spain’s tant to point out, however, that progress has
Council of Ministers on 8 November 2022. The been made since the Completion of GRECO’s
proposed law will go through a series of public report: a new National Office for Human Rights
hearings after which it will go to Parliament for Guarantees was set up in February 2022 in order
final approval. to strengthen integrity both within the National
Police and the Civil Guard.
Preventing corruption and promoting
integrity in law enforcement agencies Recommendations that have not been
This section covers recommendations xi–xix. Of implemented
those recommendations two have been partially Recommendations that have not been imple-
implemented (recommendations xii and xv) and mented include:
333 CHAMBERS.COM
• that the National Police and Civil guard con- tant to contextualise Spain’s performance in view
duct a strategic risk assessment of corrup- of events in recent years. Indeed, at the outset
tion-prone areas and that the resulting data of its report, GRECO highlights that Spain’s
be used for the design of an integrity and authorities recall that there were two general
anti-corruption strategy; elections in 2019, and that just a few weeks
• “reassessing the system of entry quotas for after the new government took office a state of
the offspring of the Civil Guard”; alarm was declared due to the COVID-19 global
• strengthening the vetting processes in the pandemic, thereby significantly restricting legis-
National Police and the Civil Guard; lative activities and national actions and policies
• “reviewing criteria and procedures for the to implement the recommendations contained in
allocation and withdrawal of allowances, the 2019 Report. While this is a plausible expla-
bonuses and other benefits […] and introduc- nation, Spain will not be able to rely on such
ing adequate controls and monitoring”; mitigating circumstances in the coming months
• that the National Police and the Civil Guard and years. Meaningful reform must be shown
conduct a study regarding the risk of conflicts by Spanish authorities to demonstrate progress
of interest in service and post-employment and the effective implementation of GRECO’s
and develop targeted regulations; recommendations throughout its next compli-
• a full review of whistle-blower procedures ance procedure, especially with regard to law
within the National Police and Civil Guard; enforcement agencies.
and
• reviewing the disciplinary regime of the There is reason to be optimistic; as of Novem-
National Police and the Civil Guard. ber 2022, Spain has already made progress in
the implementation of several of GRECO’s rec-
GRECO starkly stated that “the situation regard- ommendations. This is also recognised by the
ing law enforcement authorities is disappointing” European Commission in its 2022 Rule of Law
and underscored that Spain’s non-compliance Report (Country Chapter on the rule of law situa-
necessitates an assessment of the implementation in Spain), which states that “Spain continues
tion of its recommendations and that, instead, to implement a set of measures to fight and pre-
Spanish authorities have, “for the most part, reit- vent corruption […] Spain continues to develop a
erated the rules which were already in place in strong integrity framework for the public admin-
2019” and have failed to show meaningful action istration, including to prevent conflicts of interest
or progress in the implementation of GRECO’s and incompatibility rules”.
recommendations.
GRECO’s Conclusion
GRECO has concluded that Spain needs to make
further progress “to demonstrate an acceptable
level of compliance within the next 18 months”.
This is not surprising, given that Spain has failed
to implement a single one of GRECO’s recom-
mendations in its entirety. However, it is impor-
334 CHAMBERS.COM
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Authors
Arantxa Geijo Jiménez is a Elena Bescos Gracia is an
Spanish attorney and a member attorney member of the New
of the Valencia Bar Association York Bar (2019) who specialises
(2003) and founding partner of in public international law,
Geijo & Associates SLP. In including human rights,
addition to her practice, she is investment arbitration and
also currently of counsel at Freeh Sporkin & international criminal law. Prior to joining Geijo
Sullivan, LPP. She has previously served as & Associates, she worked in a public
counsel for the INTERPOL General Secretariat international law boutique firm in London,
Office of Legal Affairs at its headquarters in where her work focused on INTERPOL matters
France, where she focused on complex and investment arbitration. She also worked at
international criminal arrest warrant requests the UN headquarters in New York on corporate
(Red Notices) and represented INTERPOL in sustainability and international relations
litigation. Arantxa has worked at a number of matters. Elena’s previous experience also
prestigious firms in Spain and London as well includes working as a financial crime
as the Spanish Agency for Development and consultant in the UK, where she advised
Co-operation. She has advised clients around financial institutions on how to strengthen
the globe. financial crime policies and systems.
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Spain
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336 CHAMBERS.COM
SWITZERLAND
Law and Practice
Germany
France
Bern
Contributed by: Switzerland

Claudia Götz Staehelin, Florian Baumann,
Roman Huber and Lea Ruckstuhl
Italy
Kellerhals Carrard see p.358
Contents
2.1 Bribery p.339
3. Scope p.344
5. Penalties p.346
Penalties p.347
337 CHAMBERS.COM
SWITZERLAND Law and Practice
Contributed by: Claudia Götz Staehelin, Florian Baumann, Roman Huber and Lea Ruckstuhl, Kellerhals Carrard
1. Legal Framework for Offences equality between private individuals (who fulfil
official duties) and public officials.
1.1 International Conventions
Switzerland is signed up to the following inter- 1.3 Guidelines for the Interpretation and
national conventions relating to anti-bribery and Enforcement of National Legislation
anti-corruption: The provisions relating to anti-bribery and anti-
corruption are interpreted and enforced by the
• the OECD Convention on Combating Bribery Swiss courts. In addition, legal doctrine contrib-
of Foreign Public Officials in International utes to their interpretation.
Business Transactions of 17 December 1997;
• the Council of Europe Criminal Law Con- In 2017, the Swiss State Secretariat for Econom-
vention on Corruption of 27 January 1999, ic Affairs (SECO) published the third edition of a
as well as its Additional Protocol of 15 May brochure entitled Preventing Corruption – Infor-
2003; and mation for Swiss Businesses Operating Abroad,
• the United Nations Convention against Cor- which is designed to:
ruption of 31 October 2003.
• help Swiss companies operating abroad cope
1.2 National Legislation with the pertinent regulations in Swiss crimi-
The main national legislation in the area of anti- nal law;
bribery and anti-corruption in Switzerland is • highlight the effects of corruption on their
the Swiss Criminal Code (SCC). The provisions business; and
relating to anti-bribery and anti-corruption are • provide advice on how to prevent and combat
governed by Articles 322ter to 322decies of the corruption.
SCC, which are divided into four sections:
1.4 Recent Key Amendments to National
• bribery of Swiss public officials (Articles Legislation
322ter to 322sexies); Prior to 1 July 2016, the criminal offences of
• bribery of foreign public officials (Article active and passive bribery of private individuals
322septies); were governed by Article 4a in conjunction with
• bribery of private individuals (Articles Article 23 para 1 of the Swiss Unfair Competition
322octies and 322novies); and Act (SUCA). Since 1 July 2016, the offences of
• general provisions (Article 322decies). active and passive bribery in the private sector
have been governed by Articles 322octies and
All types of bribery include active and passive 322novies of the SCC.
bribery. Bribery of Swiss public officials goes
beyond active and passive bribery, which are
governed by Articles 322ter and 322quater of
the SCC, to the granting to and the accepting
by Swiss public officials of an undue advantage
(Articles 322quinquies and 322sexies of the
SCC). Article 322decies of the SCC sets out the
advantages that are not undue, as well as the
338 CHAMBERS.COM
2. Classification and Constituent ing, securing the promise of, or accepting an

Elements undue advantage); and
• a purpose – the bribing person offers, prom-
2.1 Bribery ises or gives to the bribed person a bribe
Bribery to cause the latter to carry out (or to fail to
In Swiss criminal law, no distinction is made carry out) an act in connection with their
between bribery and corruption. As outlined in official activity that is contrary to their duty or
1.2 National Legislation, the relevant provisions dependent on their discretion (ie, the principle
in the SCC are divided into the following four of equivalence).
sections:
Subjectively, all types of bribery require that the
• bribery of Swiss public officials; offender act with intent – ie, the offender must
• bribery of foreign public officials; carry out the act in the knowledge of what they
• bribery of private individuals; and are doing and in accordance with their will. Con-
• general provisions. ditional intent (dolus eventualis) is sufficient.
Therefore, if the offender regards the realisation
The provisions governing the bribery of Swiss of the act – in this case, bribery – as being pos-
public officials do not only include the active and sible and accepts this, they act with conditional
passive bribery of Swiss public officials but also intent.
the granting to and acceptance by Swiss public
officials of an undue advantage. An undue advantage, within the meaning of
the provisions relating to anti-bribery and anti-
In accordance with the classification of the SCC, corruption in Switzerland, may be tangible or
the discussion here will distinguish between intangible. A tangible advantage is any measur-
these four categories. able improvement, be it a cash payment, a pay-
ment in kind or a legal improvement. Intangible
Preliminary Remarks advantages are, for example, social or profes-
In abstract terms, according to Swiss crimi- sional advantages. The advantage is undue if the
nal law (Articles 322ter, 322quater, 322septies, offender is not authorised to accept it.
322octies and 322novies of the SCC), the objec-
tive elements of active and passive bribery con- As mentioned earlier, active and passive bribery
sist of the following: require that the undue advantage be offered,
promised or given to cause the bribed person
• a bribing person; to carry out (or to fail to carry out) an act in con-
• a bribed person – either a Swiss public nection with their official activity that is contrary
official, a foreign public official or a private to their duty or dependent on their discretion.
individual; Therefore, the following conditions are neces-
• a bribe – an undue advantage; sary:
• a prohibited act – either active bribery (ie,
offering, promising or giving an undue • the bribed person’s act must be carried out
advantage) or passive bribery (ie, demand- (or fail to be carried out) in connection with
their official activity;
339 CHAMBERS.COM
• the act must be contrary to the bribed per- failed to prevent bribery committed by employ-
son’s duty or dependent on their discretion; ees under their supervision.
and
• the undue advantage must be offered, prom- Bribery of Swiss Public Officials
ised or given in order for the bribed person to Four offences can be distinguished in relation to
carry out (or to fail to carry out) the act that is the bribery of Swiss public officials:
contrary to their duty.
• active bribery of Swiss public officials (Article
A connection with the official activity of the 322ter of the SCC);
bribed person exists where they are acting in • passive bribery by Swiss public officials (Arti-
their official capacity or violate official duties cle 322quater of the SCC);
through the act in question. A breach of duty is • the granting of an undue advantage to Swiss
established if the bribed person violates a provi- public officials (Article 322quinquies of the
sion under public law (ie, under labour law and SCC); and
their employment contract describing their duti- • the acceptance of an undue advantage by
ful conduct). Alternatively, this condition is also Swiss public officials (Article 322sexies of the
met if the bribed person’s act is dependent on SCC).
their discretion. The bribed person’s determina-
ble consideration is deemed an undue advan- With regard to the constituent elements com-
tage if there is a sufficient connection between mon to all types of bribery, reference should be
the bribed person’s behaviour and the undue made to the preliminary remarks. The following
advantage granted by the bribing person. discussion is limited to elements that are specific
to the bribery of Swiss public officials.
As regards all types of bribery, the undue advan-
tage does not need to be offered, promised In addition to public officials, the notion of a
or given to the bribed person – it can also be Swiss public official encompasses:
offered, promised or given to a third party. Addi-
tionally, for the offender to be punishable, it is • members of a judicial or other authority;
sufficient that the undue advantage is offered, • officially appointed experts, translators or
promised or given to the bribed person – regard- interpreters;
less of whether the results expected by the • arbitrators; or
involved persons actually occur. • members of the armed forces.
Under Swiss criminal law, the failure to prevent Article 110 para 3 of the SCC defines public offi-
bribery is not an offence. However, a compa- cials as:
ny may also be punished for a bribery offence
committed in the company – irrespective of the • the officials and employees of a public admin-
criminal liability of any natural persons – if the istrative authority or of an authority for the
company did not undertake all requisite and rea- administration of justice;
sonable organisational precautions necessary to • persons who hold office temporarily at – or
prevent bribery (Article 102 para 2 of the SCC). In are employed temporarily by – a public
addition, principals can be held liable for having
340 CHAMBERS.COM
administrative authority or an authority for the It worth noting that the granting to and accept-
administration of justice; or ance by Swiss public officials of an undue
• persons who carry out official functions tem- advantage (as per Articles 322quinquies and
porarily. 322sexies of the SCC) only applies to Swiss
public officials and does not involve third parties.
In Swiss anti-corruption law, the position of a
public official is assessed on the basis of the Facilitation payments – that is, smaller payments
functional notion of a public official. Employ- made to secure or expedite the performance
ees of state-controlled companies are therefore of a routine or necessary action to which the
included in such notion. payer has legal or other entitlement – could, in
principle, fall within the scope of the offences
In contrast to active bribery, passive bribery of granting to and acceptance by Swiss public
does not include members of the armed forces. officials of an undue advantage. However, neg-
The same is valid for the acceptance by Swiss ligible advantages that are common social prac-
public officials of an undue advantage. By mir- tice do not constitute undue advantages (Article
roring the offering, promising or giving, the Swiss 322decies para 1(b) of the SCC).
public official demands, secures the promise of,
or accepts the undue advantage. Bribery of Foreign Public Officials
The active and passive bribery of foreign public
Per Articles 322quinquies and 322sexies of officials is a punishable offence pursuant to Arti-
the SCC, the granting to – and acceptance by cle 322septies of the SCC.
– Swiss public officials of an undue advantage
differs from active and passive bribery in so far With regard to the constituent elements com-
as the undue advantage must be offered, prom- mon to all types of bribery, reference should be
ised or given in order that the Swiss public offi- made to the preliminary remarks.
cial carries out their official duties. Thus, in con-
trast to active and passive bribery, the offering, The active and passive bribery of foreign pub-
promising or giving of an undue advantage is not lic officials occurs when an undue advantage is
linked to a concrete – or at least determinable – offered, given or promised to – or respectively
consideration of the Swiss public official. Never- demanded, accepted or (the promise of which is)
theless, the undue advantage granted needs to secured by – the following where they are acting
be suitable (or enough) to influence the carrying for a foreign state or international organisation:
out of the Swiss public official’s official duties.
• members of a judicial or other authority;
In contrast to active and passive bribery pursu- • public officials;
ant to Articles 322ter and 322quater of the SCC, • officially appointed experts, translators or
the granting to – and acceptance by – Swiss interpreters;
public officials of an undue advantage refers • arbitrators; or
only to the future exercise of the public official’s • members of the armed forces.
official duties.
341 CHAMBERS.COM
Bribery of Private Individuals General Provisions

Not only has the active and passive bribery of The general provisions contained in Article
Swiss (Articles 322ter and 322quater of the SCC) 322decies of the SCC are applicable to every
and foreign public officials (Article 322septies form of bribery in Swiss law. According to Article
of the SCC) been forbidden since 2016, butthe 322decies para 1 of the SCC, the following are
active and passive bribery of private individuals not undue advantages:
is also forbidden (as per Articles 322octies and
322novies of the SCC). • advantages permitted under public employ-
ment law or contractually approved by a third
Pursuant to Article 322octies para 1 of the SCC, party; and
any person is criminally liable if said person • negligible advantages that are common social
offers, promises or gives an employee, partner, practice.
agent or any other auxiliary of a third party in
the private sector an undue advantage in order Advantages that are negligible, but clearly an
that they carry out (or fail to carry out) an act attempt at bribery, are not covered by Article
in connection with their official activities that is 322decies para 1(b) of the SCC. The thresh-
contrary to their duties or dependent on their old for negligible advantages that are common
discretion. social practice lies in their capacity to influence
the person accepting the advantage. For federal
As the constituent elements correspond with personnel, the limit for negligible advantages is
bribery of public officials, reference should be regulated by law at CHF200.
made to the preliminary remarks.
In addition, pursuant to Article 52 of the SCC,
It is nevertheless noteworthy that the require- the competent authority shall refrain from pros-
ments for the active and passive bribery of pri- ecuting the offender, bringing them to court, or
vate individuals (as defined in Articles 322octies punishing them if the level of culpability and con-
and 322novies of the SCC) also apply to the sequences of the offence are negligible.
bribery of foreign private individuals. Further-
more, in minor cases, active and passive bribery Article 322decies para 2 of the SCC provides
of private individuals is only prosecuted upon that private individuals who fulfil official duties
complaint. Cases could be considered minor if: are subject to the same provisions as public
officials.
• the sum in tort is not extensive;
• the security and health of third parties are not Money Laundering
affected by the offence; Active and passive bribery of Swiss or foreign
• there is no multiple or repeated commission public officials (as per Articles 322ter, 322quater
of the offence by a member of a group; or and 322septies of the SCC) qualify as felonies
• no document fraud has been committed in and are thus predicate offences to money laun-
connection with the bribery. dering, according to Article 305bis of the SCC.
In contrast, active and passive bribery of pri-

vate individuals (as per Articles 322octies and
342 CHAMBERS.COM
322novies of the SCC) are qualified as misde- 2.3 Financial Record-Keeping

meanours and are thus not predicate offences Under Swiss criminal law, it is a punishable
to money laundering. The same is true for the offence if a debtor fails to comply with a statu-
granting to and acceptance by Swiss public tory obligation to keep and preserve business
officials of an undue advantage (as per Articles accounts or draw up a balance sheet – with the
322quinquies and 322sexies of the SCC). result that their financial position is not ascer-
tainable or not fully ascertainable – when bank-
2.2 Influence-Peddling ruptcy proceedings are commenced against
By trading in influence, a person misuses their them (Article 166 of the SCC). Moreover, as per
influence over a decision-maker (typically a pub- Article 325 of the SCC, a person is criminally
lic official) for a third party in return for any undue liable if they wilfully (or through negligence) fail
advantage. to comply with the statutory duty to:
Swiss law does not detail a specific offence • keep proper accounts; or
with regard to trading in influence. However, if • preserve accounts, business correspondence
the intermediary is a public official, they could and business telegrams.
be held liable for passive bribery or accepting
an undue advantage if they accept an undue Forgery of documents is covered by Article 251
advantage to influence another public official. of the SCC, which punishes the production and
The third party giving the undue advantage the use of a false or falsified document. If the
could be held liable for active bribery or grant- offender is a public official or a person acting
ing an undue advantage. However, the undue in an official capacity, Article 317 of the SCC
advantage must be linked to the official activity (regarding forgery of a document by a public
of the intermediary. It is important to note that, official) is applicable.
under Swiss law, the granting to and acceptance
by public officials of an undue advantage only 2.4 Public Officials
applies to Swiss public officials. Under Swiss law, there are several provisions
pertaining to the criminally relevant behaviour of
If the intermediary is a private individual, and public officials.
the public official whose decision is to be influ-
enced participates in the corruptive scheme and Pursuant to Article 313 of the SCC, any public
at least implicitly accepts the undue advantage official who – for unlawful gain – levies taxes,
from the intermediary, active and passive bribery fees or other charges that are not due (or that
could be fulfilled. Depending on the explicit or exceed the statutory rates) is criminally liable.
implicit agreement between the parties, the third
party could be held liable for complicity or incite- Likewise, any member of an authority or public
ment to active bribery, the intermediary for active official who damages the public interests that
bribery (or complicity in active bribery) and the they have a duty to safeguard in the course of a
public official for passive bribery. legal transaction – and with a view to obtaining
an unlawful advantage for themself or another –
is liable to prosecution for misconduct in public
office (Article 314 of the SCC).
343 CHAMBERS.COM
Per Article 138 of the SCC, a public official is time limit of 15 years if the offence carries a cus-
criminally liable for: todial sentence of more than three years. This
is the case for active and passive bribery of a
• the appropriation of moveable property Swiss or foreign public official (Articles 322ter,
belonging to another but entrusted to said 322quater, 322septies of the SCC).
public official; and
• the unlawful use of financial assets entrusted Article 97 para 1(c) of the SCC provides that the
to said public official for their own or anoth- right to prosecute is subject to a time limit of ten
er’s benefit. years for the offences of:
Finally, any member of an authority or a pub- • granting to and acceptance by Swiss public
lic official who abuses their official powers to officials of an undue advantage (pursuant to
secure an unlawful advantage for themself or Articles 322quinquies and 322sexies of the
another – or to cause prejudice to another – is SCC); and
liable to prosecution for abuse of public office • active and passive bribery of private indi-
(Article 312 of the SCC). viduals (pursuant to Articles 322octies and
322novies of the SCC).
2.5 Intermediaries
As previously mentioned in 2.1 Bribery, Articles If a judgment is issued by a court of first instance
322ter to 322novies of the SCC explicitly provide before the limitation period expires, the time limit
that the undue advantage does not need to be no longer applies (Article 97 para 3 of the SCC).
offered, promised or given to the public official
– it can also be offered, promised or given to Depending on the sentence imposed, the right to
a third party. Apart from that, the general pro- execute a sentence in connection with a bribery
visions concerning complicity, incitement and offence is subject to a limitation period of five,
assistance are applicable, as the case may be. 15 or 20 years (Article 99 para 1 of the SCC).
3.2 Geographical Reach of Applicable

3. Scope Legislation
According to Article 3 para 1 of the SCC, any
3.1 Limitation Period person who commits an offence in Switzerland
Swiss criminal law distinguishes between the is subject to the SCC. Article 8 para 1 of the SCC
limitation of prosecution rights and the limita- clarifies what is meant by the place of commis-
tion period for the execution of a sentence. sion by stating that an offence is considered to
Whereas the former has the effect of hindering be committed at:
the authorities in prosecuting, the latter prevents
a sentence from being executed. • the place where the person concerned com-
mits it or unlawfully omits to act; and
Limitation of prosecution rights depends on the • the place where the offence has taken effect.
maximum sentence provided for in the respec-
tive offence. According to Article 97 para 1(b) of If the offence is only partly committed in Swit-
the SCC, the right to prosecute is subject to a zerland, this is sufficient for the Swiss authori-
344 CHAMBERS.COM
ties to assert jurisdiction. With regard to bribery, reason unrelated to the nature of the offence (as
Swiss jurisdiction can arguably be established per Article 7 para 2(a) of the SCC).
if the bribe money has been transferred to or
from a bank account in Switzerland – regardless 3.3 Corporate Liability
of whether the bribing or the bribed person has As explained in 2.1 Bribery, under Swiss criminal
been to Switzerland. law (Article 102 para 2 of the SCC), a company
will be penalised for an offence committed by
Notwithstanding the foregoing, Swiss legislation an individual within the company – irrespective
has extraterritorial reach under certain condi- of the criminal liability of any natural persons – if
tions. Pursuant to Article 6 para 1 of the SCC, the company failed to take all the reasonable
a person is subject to the SCC if they commit organisational measures necessary to prevent
an offence abroad that Switzerland is obliged to such an offence.
prosecute in terms of an international conven-
tion, provided that: In corporate groups, criminal liability can only
be attributed to the group company in which the
• the act is also liable to prosecution at the offence was committed. As such, the mother
place of commission or no criminal law juris- company is – in principle – not responsible for
diction applies at the place of commission; the offences committed in the subsidiary com-
and pany unless it had operative control over the
• the person concerned remains in Switzerland latter and is therefore deemed responsible for
and is not extradited to the foreign country. the lack of organisational measures in the sub-
sidiary.
Furthermore, Article 7 para 1 of the SCC pro-
vides that a person who commits an offence
abroad – where the requirements of, in particular, 4. Defences and Exceptions
Article 6 of the SCC are not fulfilled – is subject
to the SCC if: 4.1 Defences
Generally speaking, a person or corporation
• the offence is also liable to prosecution at the accused of bribery can raise defences that per-
place of commission or the place of commis- tain to the objective and subjective requirements
sion is not subject to criminal law jurisdiction; of the relevant provision (see 2. Classification
• the person concerned is in Switzerland or and Constituent Elements). In particular, it can
is extradited to Switzerland owing to the be argued that:
offence; and
• under Swiss law, extradition is permitted for • a minor gift does not qualify as an undue
the offence, but the person concerned is not advantage in the sense of Article 322ter of the
being extradited. SCC;
• whoever was offered or demanded the undue
If the person concerned is not Swiss and if the advantage does not have the status of a for-
offence was not committed against a Swiss per- eign public official (as per Article 322septies
son, Article 7 para 1 of the SCC applies only of the SCC;
if the request for extradition was refused for a
345 CHAMBERS.COM
• the undue advantage was not offered “in According to Article 53 of the SCC, if an offend-
order to cause” the public official to act er has made reparation for the loss, damage or
contrary to their duties (lack of “equivalence injury (or made every reasonable effort to right
link”); the wrong that they have caused), the competent
• the public official who was offered or authority shall refrain from prosecuting them,
demanded the undue advantage did not bringing them to court, or punishing them if:
have any influence on the carrying out of the
relevant official act; • the requirements for a suspended sentence
• the offender did not act with intent – or at are fulfilled; and
least not with conditional intent (dolus even- • the interests of the general public and of the
tualis) – in relation to all objective require- persons harmed in the case are negligible.
ments of the offence;
• in the case of corporate liability, the corpora- Alternatively, if the aforementioned requirements
tion took all reasonable organisational meas- are not met, but the facts are acknowledged in
ures required to prevent the offence; or a spontaneous report or during the subsequent
• in the case of insufficient organisational investigation, the offender may apply for a so-
measures, the lack of such measures did not called accelerated proceeding and thus avoid
lead to the commission of the offence. a long trial. Typically, the sanctions imposed in
such accelerated proceedings are not as severe.
4.2 Exceptions
There are no exceptions to the defences men-
tioned under 4.1 Defences. 5. Penalties
4.3 De Minimis Exceptions 5.1 Penalties on Conviction

As outlined in 2. Classification and Constituent The maximum penalty for an individual con-
Elements, Article 322decies para 1(b) and 52 of victed of the active or passive bribing of (either
the SCC set out certain de minimis exceptions. Swiss or foreign) public officials is five years’
imprisonment or a monetary penalty. The maxi-
4.4 Exempt Sectors/Industries mum penalty for granting or accepting an undue
There are no sectors or industries that are advantage is three years’ imprisonment or a
exempt from the offences previously discussed. monetary penalty. Bribery in the private sector
carries a sentence of up to three years of impris-
4.5 Safe Harbour or Amnesty Programme onment or a monetary penalty. The maximum
Swiss law does not contain specific provisions monetary penalty is CHF540,000. Depending on
that reward spontaneous reports of irregulari- the circumstances of the case, penalties may
ties by natural persons or corporations. How- also include a ban on exercising professional
ever, self-reporting followed by co-operation activities or a revocation of a residence permit
during proceedings may be taken into account for foreigners. A legal entity may be sanctioned
by the criminal authorities when determining a with a fine of up to CHF5 million.
sentence (Article 102 paras 3, 47 and 48 of the
SCC). As a further significant sanction, the court may
order the forfeiture of illegal profits obtained
346 CHAMBERS.COM
through corrupt acts or assets intended to com- degree of the organisational inadequacies, the
mission or reward the offender (Article 70 of the damage caused, and the economic capability
SCC). If the assets subject to forfeiture are no of the company (Article 102 para 3 of the SCC).
longer available, the court may uphold a claim
for compensation by the State in respect of a Repeated offences will lead to an increase of
sum of equivalent value (Article 71 of the SCC). the sentence by up to 50% based on the most
There is no cap on the amount of money for such serious offence (Article 49 para 1 of the SCC).
forfeiture or compensation claims. Although Swiss law generally does not contain
provisions to reward spontaneous reports of
Often bribery will include concomitant violations irregularities, self-reporting followed by co-oper-
of accounting or bookkeeping obligations, or fal- ation during criminal proceedings may be taken
sification of accounting documents, and some- into account when the sentence is determined
times tax offences. Such violations may lead to (see 7.4 Discretion for Mitigation).
the same or similar criminal sanctions as bribery
(ie, imprisonment or monetary sanctions), as well
as administrative sanctions in certain regulated 6. Compliance and Disclosure
sectors. Lastly, Swiss criminal procedure law
provides that any individual who has suffered 6.1 National Legislation and Duties to
harm from bribery or corruption may file a civil Prevent Corruption
claim as a private claimant in the criminal pro- In Transparency International’s 2021 “Corrup-
ceedings. tion Perception Index” (CPI), Switzerland ranked
eighth out of 180 countries. Although Switzer-
5.2 Guidelines Applicable to the land is not seen as being one of the most corrupt
Assessment of Penalties countries in the world, it is still affected by cor-
Swiss criminal law does not provide general ruption. In Switzerland, the anti-corruption law is
guidelines on the assessment of appropriate set out in the SCC (see 1.2 National Legislation).
penalties. Rather, based on the SCC, the author-
ities have broad discretion when determining the The failure of a company to prevent bribery does
appropriate sanction. Factors to be considered not qualify as an offence in itself. However, cor-
include the degree of fault, previous convictions, porate criminal liability exists where a felony or
the personal circumstances of the offender, and misdemeanour is committed in a corporation
the impact of the sanction on their life (Article and it is not possible to attribute such an act to
47 of the SCC). any specific natural person owing to the inad-
equate organisation of the corporation (Article
In order to determine the amount of the mon- 102 para 1 of the SCC).
etary penalty for an individual, the court spe-
cifically takes into account the offender’s per- Furthermore, a company may also be punished
sonal and financial circumstances at the time of – irrespective of the criminal liability of any natu-
conviction (Article 34 of the SCC). In order to ral persons – if the enterprise did not undertake
determine the amount of the fine in the case of all the necessary and reasonable organisational
a conviction of a corporation, the court takes precautions required to prevent bribery (Article
into account the seriousness of the offence, the 102 para 2 of the SCC). Therefore, criminal liabil-
347 CHAMBERS.COM
ity applies to a legal entity that fails to prevent 6.2 Regulation of Lobbying Activities
bribery from occurring. Such precautions may Although lobbying can be a positive force in
consist of risk analysis, training, internal controls democracy, it can also be a mechanism for pow-
and internal policies. erful groups to influence laws and regulations
at the expense of the public interest. According
Accordingly, if a company lacks an adequate to a study by Transparency International (2019),
compliance programme, the company may lobbyists in Switzerland are particularly active
become criminally liable. In any case, and behind the scenes in administrative procedures,
depending on the circumstances, an effective in parliamentary committees and in areas where
compliance programme may at least help to they share common interests with parliamentar-
mitigate the criminal liability of the corporation. ians. There is a lack of federal rules and regula-
If convicted, a legal entity may be sanctioned tions governing lobbyists in Switzerland.
with a fine of up to CHF5 million.
Swiss AML legislation contributes to the detec- bribery and Anti-corruption Provisions
tion of bribery in the sense that all Swiss finan- Suspected or actual misconduct in the business
cial intermediaries are required to inform the domain of a corporation requires senior man-
Money Laundering Reporting Office Switzer- agement (ie, the board of directors or an execu-
land (MROS) immediately if they become aware tive committee) to initiate an internal investiga-
(or have “reasonable grounds” to suspect) that tion and, if the internal investigation results in
assets involved in a business relationship fall evidence of misconduct, the corporation has to
under at least one of the criteria set out in the decide whether to self-report the misconduct.
Anti-Money Laundering Act (AMLA) – especial- There is, however, no duty to disclose violations
ly if they originate from a predicate offence to of anti-bribery and anti-corruption provisions in
money laundering (Article 9 AMLA). Corruption Switzerland. Swiss law does not explicitly pro-
of public officials, in contrast to corruption in the vide for credit or leniency during a criminal inves-
private sector, qualifies as a felony and is thus a tigation, either – although self-reporting followed
predicate offence for money laundering (Article by co-operation during criminal proceedings
305bis of the SCC). In fact, it is one of the pred- may be taken into account when the sentence
icate offences that most frequently underline is determined.
reports of suspicious transactions to the MROS.
6.4 Protection Afforded to Whistle-
Once the cases have been processed by the Blowers
MROS, they are forwarded to the Federal Office Currently, there is no specific Swiss law granting
of the Attorney General of Switzerland (OAG) or protection to whistle-blowers in the private sec-
cantonal attorneys’ general offices (as appropri- tor. However, in July 2022, the OECD declared
ate). The MROS is the most frequent source of that it will commence preparations for a high-
information leading to criminal proceedings for level mission to Switzerland in December 2022 if
international corruption, followed by internation- Switzerland does not take concrete steps toward
al mutual legal assistance. implementing whistle-blower protections.
348 CHAMBERS.COM
In the meantime, the competent courts decide 6.5 Incentives for Whistle-Blowers
on a case-by-case basis whether the reporting There are no specific incentives for whistle-blow-
of irregularities is legitimate. Swiss courts apply ers to report bribery or corruption in Switzerland.
a balancing of interests’ test to assess whether
the employee’s notification of an irregularity to In practice, many corporations have established
the employer, the authorities or the media was mechanisms for employees to report suspected
lawful and examine the facts of each individual or actual misconduct to an independent per-
case (primarily in relation to the employee’s duty son, and corporations sometimes encourage or
of loyalty). oblige employees to report suspicions of brib-
ery to the compliance department, an exter-
However, it is regarded as best practice to have nal lawyer or a specific whistle-blower portal.
reporting mechanisms in place that adequately Upon such reporting, an employer may choose
protect the whistle-blower from negative conse- to waive its right to take civil action against the
quences. The termination of an employee solely reporter, even if said reporter is involved in the
on the grounds of lodging a complaint may con- bribery or corruption. An employer’s waiver,
stitute an unfair dismissal under Swiss law. In however, does not protect the employee from
the public sector, under the relevant cantonal or prosecution by the criminal authorities.
federal Personnel Acts, Swiss officials may be
required to report crimes and offences to their For the public sector, the Swiss Federal Audit
supervisors or directly to the criminal authorities. Office (SFAO) maintains a whistle-blowing
website where private individuals and federal
The EU Whistleblowing Directive employees can report suspected irregularities
The Directive (EU) 2019/1937 of the European and acts of corruption within the administrative
Parliament and of the Council of 23 October units of the Federal Administration.
2019 on the protection of persons who report
breaches of Union law (commonly known as the 6.6 Location of Relevant Provisions
“EU Whistleblowing Directive”) entered into force Regarding Whistle-Blowing
in December 2019, and EU member states were Currently, under Swiss law, there is no specific
required to implement the requirements result- protection afforded to whistle-blowers in the pri-
ing from the EU Whistleblowing Directive into vate sector. (For the public sector, see 6.5 Incen-
national law by December 2021. As Switzerland tives for Whistle-Blowers.)
is not an EU member state, there is no obligation
to implement the EU Whistleblowing Directive
into national law. Nevertheless, Swiss compa- 7. Enforcement
nies with business branches in the EU, which
have at least 50 employees, may fall within the 7.1 Enforcement of Anti-bribery and Anti-
scope of the EU Whistleblowing Directive. Com- corruption Laws
pliance with the requirements of the EU Whistle- Anti-bribery and anti-corruption laws are, in prin-
blowing Directive can therefore also be of great ciple, enforced by criminal authorities and – to a
importance to Swiss companies. certain extent and less directly – by administra-
tive bodies such as the Swiss Financial Market
349 CHAMBERS.COM
Supervisory Authority (FINMA) and the MROS The FINMA and the competent prosecution
(see 7.2 Enforcement Body). authorities have broad competences to co-
operate and exchange the information that they
Furthermore, an individual who has suffered require in the context of their collaboration.
harm from bribery or corruption may file a civil
claim for compensation of damages or surrender The MROS also plays an important role in the
of profits based on the Federal Law on Unfair enforcement process. It receives suspicious
Competition. They can file the civil claim in sepa- activity reports from financial intermediaries
rate civil proceedings or as a private claimant in and, after analysis, forwards them to the crimi-
the criminal proceedings (see 5.1 Penalties on nal authorities for follow-up action. Such suspi-
Conviction). cious activity reports may relate to corruption
as a predicate offence for money laundering, in
7.2 Enforcement Body particular (see 6.3 Disclosure of Violations of
The enforcement of anti-bribery and anti-corrup- Anti-bribery and Anti-corruption Provisions). In
tion offences lies principally with the prosecu- 2021, 8.1% of the predicate offences that led to
tor’s office at the cantonal or federal level. The reports to the MROS concerned the bribery of
OAG will lead the investigation if the offence has foreign public officials.
been committed to a substantial extent abroad
or in more than one canton (where no single can- 7.3 Process of Application for
ton is the clear focus of the criminal activity). Documentation
An agreement is in place between the cantonal In a criminal investigation for bribery, the pros-
prosecution authorities and the OAG, which gov- ecution authorities may use all coercive meas-
erns the question of jurisdiction. Remaining con- ures provided for by the Swiss Criminal Proce-
flicts of competence are decided by the Swiss dure Code (SCPC). Specifically, they may order
Federal Criminal Court. interrogations of witnesses and suspects, house
searches or – against non-suspect third parties
In relation to banks and other financial inter- (eg, banks and other financial intermediaries) –
mediaries, the FINMA is authorised to enforce the disclosure of documents and/or information.
its supervisory powers independently from
any criminal investigation led by the prosecu- The right against self-incrimination – that is, the
tion authorities. In a landmark case, the FINMA principle of nemo tenetur se ipsum accusare –
ordered a bank to terminate its activities in view provides a ground for refusing to co-operate
of the bank’s involvement in corruption. In other (including the right to remain silent or not to dis-
cases, the procedures led to sanctions such as: close documents) with the prosecution authori-
ties. In addition, documents covered by attor-
• the confiscation of illegal proceeds; ney–client privilege or obtained by illegal means
• naming and shaming; are not admissible in criminal proceedings. It is
• restriction or termination of activities; or worth noting, however, that attorney–client privi-
• a ban on practising for several years for cer- lege does not extend to in-house counsels. In
tain individuals. case of doubt, documents may be sealed and a
judicial authority must rule on their admissibility
(Article 248 of the SCP).
350 CHAMBERS.COM
In contrast, based on Article 29 of the Federal cution authorities. The offer may be the result
Act on the Swiss Financial Market Supervisory of discussions between the prosecutor and
Authority (FINMASA), financial intermediaries the defence.
supervised by the FINMA are obliged to provide • Articles 358 et seq of the SCP provide that
the FINMA with all documents and information an offender who admits the relevant facts
that the FINMA deems necessary to fulfil its brought against him or her and accepts civil
supervisory duties. claims raised by damaged parties may apply
for so-called accelerated proceedings, which
7.4 Discretion for Mitigation may involve “sentence bargaining” between
The enforcing bodies act ex officio and are thus the prosecutor and the defence. The sen-
obliged to investigate and sanction bribery with- tence is reduced and a long trial avoided in
out exception. Swiss law does not provide for return for the offender admitting the relevant
plea agreements, deferred prosecution agree- facts.
ments and non-prosecution agreements exactly • Article 48(d) of the SCC provides for mitiga-
equivalent to such instruments in other jurisdiction of a sanction if the offender has shown
tions. However, Swiss law provides for the fol- sincere remorse for their actions and, in par-
lowing mechanisms to achieve similar results. ticular, has made reparation for the damage
(in so far as this may be expected of them).
• According to Article 53 of the SCC, the com- This provision can be applied, for example, in
petent authority shall refrain from prosecuting the case of self-reporting and/or improvement
or punishing an individual or corporation if: of the company’s compliance and govern-
(a) the offender “admits the facts” and “has ance practice.
made reparation for the loss, damage or
injury or made every reasonable effort to As regards FINMA investigations, the FINMA has
right the wrong”; a wide discretion to mitigate sanctions in light of
(b) the interests of the general public and of the financial intermediary’s co-operation during
the person harmed are negligible; and the investigation (including efforts for repara-
(c) the requirements for a suspended sen- tion).
tence of not more than one year are
fulfilled. 7.5 Jurisdictional Reach of the Body/
• In such cases, the reparation requested can Bodies
be discussed ex ante between the prosecu- According to Article 3 of the SCC, the Swiss
tion and the defence, and could, for example, criminal authorities have the authority to pros-
consist of a payment to a charitable organisa- ecute corruption committed in Switzerland.
tion. According to Article 8 of the SCC, a bribery
• Articles 352 et seq of the SCP provide that, if offence is considered to be committed both at
the offender admits the facts brought against the place where the person concerned acts or
them or if the facts are “otherwise sufficiently unlawfully omits to act and at the place where
established”, the prosecution authorities may the offence has taken effect (see 3.2 Geographi-
issue a summary penalty order. This can be cal Reach of Applicable Legislation).
appealed to the court and is therefore, so to
speak, a plea agreement offer by the prose-
351 CHAMBERS.COM
The place of commission is broadly construed. without punishment (based on Article 53 of the
Arguably, corruptive payments to or from a Swiss SCC) in return for a reparation payment.
bank account are enough to create Swiss juris-
diction, even if all persons involved act outside SIT Case
Switzerland. In November 2013, the OAG concluded a crimi-
nal investigation into the Swedish company Sie-
In the case of corporate liability (Article 102 para mens Industrial Turbomachinery (SIT). The case
2 of the SCC), the bribery offence itself need not concerned illegal payments to senior executives
have been committed by a Swiss corporation in at Gazprom in relation to a contract for gas tur-
Switzerland. It is sufficient that a lack of organi- bines for the pipeline linking Russia’s Yamal pen-
sation occurred (at least partially) in Switzerland, insula to Western Europe. The investigation was
which may be the case if a subsidiary, affiliate closed, based on Article 53 of the SCC, after SIT
or branch located in Switzerland is responsible admitted inadequate enforcement of compliance
for the compliance of the group of companies. regulations in relation to Yamal pipeline projects
and paid reparations of CHF125,000 in the form
The FINMA is authorised to issue administrative of a donation to the International Committee of
orders relating to corruption against persons and the Red Cross. SIT also paid compensation of
entities that are required to be licensed, recog- USD10.6 million for unlawfully obtained profits.
nised or registered by the FINMA.
As for the individuals involved, two years later
7.6 Recent Landmark Investigations or the Federal Criminal Court (FCC) issued an
Decisions involving Bribery or Corruption acquittal on the grounds that the Gazprom sen-
The following recent landmark investigations or ior executives who received the commissions
decisions involve bribery or corruption in Swit- were not public officials in the sense of Article
zerland. 322septies of the SCC.
Alstom Case Fertiliser Case

In November 2011, after three years of investi- By a summary punishment order of 31 May
gation, the OAG issued a summary punishment 2016, the OAG convicted the Swiss subsidiary of
order against Alstom Network Schweiz AG for the Swiss agro-business multinational enterprise
breach of Article 102 para 2 of the SCC in con- Ameropa of failure to take reasonable and neces-
junction with Article 322septies of the SCC. The sary organisational measures to prevent corrupt
OAG fined the company CHF2.5 million and payments to foreign public officials and ordered
imposed a compensatory claim of CHF36.4 mil- it to pay a fine of CHF750,000 for the corrupt
lion. Alstom Network Schweiz AG – the company payment of USD1.5 million to a senior Libyan
responsible for the compliance of the group but official (ie, the Minister for Oil) in exchange for
not otherwise involved in the bribe payments the right to build a fertiliser plant in Libya.
– was convicted of not having taken all neces-
sary and reasonable organisational precautions Construction 1 Case
to prevent bribery of foreign public officials in The Construction 1 case concerns charges of
Latvia, Tunisia and Malaysia. The investigation bribing foreign public officials against a former
into the parent company, Alstom SA, was closed senior executive of a Canadian construction
352 CHAMBERS.COM
company. Inducements were given to the son Port Infrastructure Case

of the late Libyan dictator Muammar Gaddafi in In four summary punishment orders of 1 May
order to secure contracts that were valued at 2017, the OAG convicted a Belgian company
more than USD21 million and generated assets and its subsidiary, who were specialists in port
worth more than EUR70 million. The former infrastructure development, for failure to take
executive was the beneficial owner of compa- reasonable and necessary organisational meas-
nies that allegedly made illicit profits of more ures to prevent bribes to foreign public officials
EUR30 million. (Article 102 para 2 of the SCC). The investigation
revealed a financial set-up whereby the Belgian
After launching a criminal investigation on 11 subsidiary and two individuals paid funds to pub-
May 2011 against the former executive, the OAG lic officials in Nigeria – in part through companies
filed a simplified-procedure indictment against whose beneficiaries were politically exposed
the Canadian group and its former executive persons (PEPs). These payments were moved
on 18 July 2014. On 1 October 2014, the FCC through three letterbox companies domiciled in
upheld the judgment recommended by the OAG. the British Virgin Islands. More than CHF20 mil-
With regard to another aspect of the procedure lion was allegedly paid in bribes between 2005
(ie, retrocessions to the senior executive), the and 2013. The subsidiary was fined CHF1 million
Canadian company was acknowledged as the and had to make a compensation payment of
injured party in this case. The FCC held that the CHF36.7 million. The parent company was fined
former executive’s breach of his duty of due dili- CHF1.
gence had caused damage to the company.
Odebrecht/CNO Case
The former executive was sentenced to three In a summary punishment order of 21 December
years’ custody. Some of his assets were con- 2016, the OAG convicted the Brazilian company
fiscated and he was ordered to pay damages Odebrecht SA and its subsidiary Construtora
amounting to CHF12 million plus interest to the Norberto Odebrecht SA (CNO) for not having
Canadian company, which passed this amount taken all reasonable and necessary organisa-
on to Switzerland. tional measures to prevent bribery and money
laundering in connection with the Petrobras
Construction 2 Case affair. The conviction, which took the form of a
A businessman belonging to an eminent North summary punishment order, is part of a co-ordi-
African family had acted as intermediary in a nated conclusion of the proceedings that was
corruption case in Libya involving a Canadian initiated by Switzerland but also involved Brazil
engineering group (see Construction 1 Case). He and the USA.
was convicted by the OAG of complicity in the
bribery of foreign public officials in a summary Odebrecht and CNO were held jointly and sever-
punishment order dated 22 March 2016 and giv- ally liable by the OAG to pay CHF117 million to
en a suspended pecuniary day-fine of 150 days Switzerland in an equivalent claim; the subsidi-
at CHF2,500 (ie, a total of CHF375,000). Assets ary was sentenced to a fine of CHF4.5 million
in the amount of CHF425,264 were confiscated. and the parent company Odebrecht SA to a fine
of CHF0. The reason for imposing a penalty of
zero francs on the parent company in this case
353 CHAMBERS.COM
was that the company had already been fined Gunvor Case
USD1 billion for bribery in the USA. This prompt- In a summary penalty order from October 2019,
ed the OAG to waive punishment on the basis of the OAG convicted the Geneva commodities
Article 49 para 2 of the SCC. trader Gunvor of failing to take all the organisa-
tional measures that were reasonable and nec-
The company Braskem SA had also paid essary to prevent its employees and agents from
bribes via the same channels as Odebre- bribing public officials (Article 102 para 2 in con-
cht SA and CNO. Proceedings in Switzerland junction with Article 322septies of the SCC). The
against Braskem SA have been abandoned, as investigation revealed that Gunvor’s employees
the company is being held accountable in the and agents bribed public officials in the Repub-
USA. However, the Swiss decision to abandon lic of Congo and Ivory Coast to gain access to
the proceedings involved the company paying their petroleum markets. The company failed to
compensation of CHF94.5 million in Switzerland. prevent these acts of corruption owing to serious
Altogether, the claims against the companies – deficiencies in its internal organisation. Gunvor
which were based in Brazil on civil proceedings, was fined CHF4 million, which took into account
in the USA on a guilty plea and in Switzerland the efforts that had been made since 2012 to
on the summary penalty order – amounted to improve their compliance and governance prac-
around USD2 billion. tice. In addition, Gunvor must pay compensation
of almost CHF90 million, which corresponds to
Banknotes Case the total profit that Gunvor made from the busi-
Company DD, a subsidiary of company D (a ness in question in the Republic of Congo and
world leader in manufacturing machinery for Ivory Coast.
the printing of banknotes), self-reported a pos-
sible breach of Article 102 para 2 in conjunction SECO Case
with Article 322septies SCC in connection with In September 2021, the FCC in Bellinzona sen-
a deal in Nigeria to the OAG on 19 November tenced a former SECO employee to four years
2015. This spontaneous initiative was followed and four months’ imprisonment. The OAG had
in April 2016 by the reporting of further suspi- demanded four years. The criminal division
cions concerning other deals in Morocco, Bra- found the former SECO employee guilty of
zil and Kazakhstan. The value of the contracts multiple forgeries of official documents, multi-
secured by the company in these four countries ple taking of bribes, and forgery of documents.
was CHF626 million and the total paid in bribes The bribery affair came to light in 2014 and is
was CHF24.6 million. In a summary punishment regarded as one of the biggest cases of cor-
order of 23 March 2017, company DD was con- ruption within the federal administration. The
victed and fined CHF1. It was also required to then-head of department at SECO had awarded
make a compensation payment of CHF35 mil- overpriced IT contracts from 2004 to 2014 and
lion, of which CHF5 million was paid into a fund received money, VIP football tickets and travel
for the improvement of compliance standards in invitations in return. IT contracts worth almost
the banknotes industry. CHF100 million were involved. In return, the
former civil servant allegedly received benefits
totalling more than CHF1.7 million.
354 CHAMBERS.COM
Three co-accused entrepreneurs, whose com- 8. Review

panies had profited from the contracts, received
conditional prison sentences of up to 22 months 8.1 Assessment of the Applicable
and fines. Enforced Legislation
In 2000, Switzerland signed up to the OECD
7.7 Level of Sanctions Imposed Convention on Combating Bribery of Foreign
Based on the SCC, the authorities have broad Public Officials and in 2006 to the Council of
discretion when determining the appropriate Europe’s Criminal Law Convention on Corrup-
sanction. Factors to be considered include the tion (see 1. Legal Framework for Offences).
degree of fault, previous convictions, the offend- Against this backdrop, Switzerland has revised
er’s personal circumstances, and the impact of the criminal provisions that relate to the bribing
the sanction on their life (Article 47 of the SCC). of foreign and domestic officials, as well as to
By way of an example, in the Port Infrastruc- bribery in the private sector.
ture case – which was discussed in 7.6 Recent
Landmark Investigations or Decisions Involv- In September 2017, Switzerland was assessed
ing Bribery or Corruption and featured a bribe by the OECD Working Group (referred to as
of more than USD20 million – the accused indi- Phase 4 country monitoring). The OECD Working
viduals were convicted to suspended day-fines Group detailed the specific achievements and
of between CHF8,500 and CHF360,000. In addi- challenges of Switzerland regarding bribery in
tion, the OAG confiscated from the accused indi- international business transactions. As an exam-
viduals an amount equivalent to their bonuses. ple of positive progress, it outlined the rise in the
number of prosecutions and the significant level
As for the sanctions imposed on legal entities, of enforcement by the OAG.
reference should be made to the cases dis-
cussed in 7.6 Recent Landmark Investigations The OECD Working Group expressed its appre-
or Decisions Involving Bribery or Corruption. ciation of the work of the MROS for its role in
Although the maximum fine for companies is detecting cases of foreign bribery in connection
limited to CHF5 million, a significant sanction with money laundering and the proactive policy
may come in the form of an order by the court on seizure and confiscation. The active involve-
to forfeit illegal profits obtained through corrupt ment of Switzerland in mutual legal assistance
acts or assets intended to induce or reward the and the measures taken to improve co-opera-
offender (Article 70 of the SCC). If the assets tion (eg, proactive mutual legal assistance) also
subject to forfeiture are no longer available, the received a positive mention.
court may uphold a claim for compensation by
the State in respect of a sum of equivalent value Nevertheless, they expect Switzerland to
(Article 71 of the SCC). There is no cap on the improve its enforcement with regard to the
amount of money for such forfeiture or compen- bribery of foreign public officials. Several court
sation claims. decisions favouring a restrictive interpretation of
bribery offences and the provisions on corporate
liability – as well the large number of cases that
have been resolved outside court proceedings
– were assessed as being negative factors. Fur-
355 CHAMBERS.COM
thermore, the OECD Working Group regrets that • measures to strengthen and improve quality
the AMLA does not apply to lawyers, notaries, and objectivity when recruiting federal court
accountants and auditors. judges; and
• the establishment of a disciplinary system
The OECD Working Group made various recom- to sanction any breaches by federal court
mendations – among others, to initiate a legal judges of their professional duties.
and institutional framework to protect whistle-
blowers in the private sector. In February 2021, In April 2019, the Interdepartmental Co-ordi-
the OECD Working Group published its Phase 4 nation Group on Combating Money Launder-
two-year follow-up report on Switzerland, con- ing and Terrorist Financing (CGMT) published
cluding that Switzerland has: a report on corruption as a predicate offence
to money laundering. The expert group came
• fully implemented 11 recommendations; to the conclusion that there is a risk of money
• partially implemented 18 recommendations; laundering from domestic corruption, but this is
and nonetheless well controlled. The CGMT found
• not implemented 17 recommendations. that corruption in Switzerland is very low and
usually limited to attempted corruption.
The OECD Working Group was very pleased
with some of the progress made but regrets that The greatest corruption-related risk of money
Switzerland has not deployed sufficient efforts laundering for the Swiss financial centre comes
to implement the recommendations of Phase 4 from the corruption of foreign public officials
– in particular, those that also concern whistle- – in particular, those from South America and
blower protection. Western Europe. The Swiss financial centre is
assumed to be mainly used for the transfer of
Furthermore, in June 2021, the Group of States assets. Banks are therefore particularly suscep-
Against Corruption (GRECO) published the sec- tible to this risk of money laundering. Switzer-
ond compliance report during its fourth evalua- land intends to take various measures to reduce
tion round. This second conformity report evalu- the risk further – for example, the attractiveness
ates the measures taken by the Swiss authorities of Swiss domiciliary companies is to be reduced
to implement the recommendations of the fourth by abolishing tax privileges.
evaluation round with regard to preventing cor-
ruption when it comes to members of parliament, 8.2 Likely Changes to the Applicable
judges and prosecutors. GRECO concluded that Legislation of the Enforcement Body
Switzerland has complied with five of the 12 rec- In September 2018, the Federal Council of Swit-
ommendations of the fourth evaluation round in zerland adopted a legislative message to amend
a satisfactory manner. Of the other recommen- the Swiss Code of Obligations and to introduce
dations, five have been partially implemented clear rules and procedures for whistle-blowers
and two have not been implemented at all. The (see 6.4 Incentives for Whistle-Blowers). The
two recommendations that have not been imple- proposal was definitively rejected by the Nation-
mented concern: al Council (see 6.3. Protection Afforded to
Whistle-Blowers). The majority considered the
proposal to be too complex and not effective
356 CHAMBERS.COM
enough – and especially impractical and unsuit- In the future, individual donations to parties and
able for SMEs. committees must be disclosed if they exceed
CHF15,000. Campaign funds must also be
The protection for whistle-blowers in Switzerland declared if the voting or election campaign has
will therefore remain inadequate for the next few a budget of more than CHF50,000. In addition,
years. Whistle-blowers will continue to expose monetary donations from abroad and anony-
themselves to the risk that a court could qualify mous donations will be prohibited in the future.
their report as a breach of: As a result of these developments, the initiative
committee has decided to withdraw the trans-
• the duty of loyalty under labour law; or parency initiative. It is currently planned that the
• confidentiality obligations of the employee. new rules will be applied for the first time during
the National Council elections in autumn 2023.
Internationally, however, there is growing pres- The new legal provisions are specified in an ordi-
sure on Switzerland to create a legal framework nance. The Federal Council proposes that the
for the protection of whistle-blowers and against SFAO should be responsible for the examina-
their wrongful dismissal (see 8.1 Assessment of tion and publication of the information and docu-
the Applicable Enforced Legislation). It is antici- ments that are disclosed.
pated that Switzerland will have to improve legal
protection for whistle-blowers in a few years.
On 31 October 2017, a popular initiative for more

transparency in the financing of political activi-
ties was launched. Thereupon, the State Political
Commission of the Council of States decided
to draw up legal regulations providing for the
disclosure of the financing of political activities.
It took a long time for the Federal Assembly to
agree in spring 2021 on new rules aiming to
establish transparency regulations for parties’
election and voting committees.
357 CHAMBERS.COM
Kellerhals Carrard has more than 200 profes- compliance – as well as supervision in the fi-
sionals working in offices in Basel, Bern, Laus- nancial services industry. In 2018, the team led
anne, Lugano, Sion, Zurich and Geneva, as well the highly publicised investigation into Postbus.
as representation offices in Shanghai and To- The white-collar crime department has exten-
kyo. The law firm is one of the largest in Swit- sive experience in providing advice and court
zerland, with a rich tradition going back to 1885. representation for a wide variety of business
Its continually expanding white-collar crime, in- crime matters. Kellerhals Carrard’s compliance
vestigation and compliance team has 15 pro- specialists have broad experience of advising
fessionals who conduct internal and regula- companies from various industries on proper
tory investigations – particularly in healthcare, measures to address any compliance deficien-
the pharma and life sciences sector, the public cies, including with regard to anti-bribery and
sector, and with regard to anti-bribery and AML anti-corruption.
Authors
Claudia Götz Staehelin is a Florian Baumann is a founding
litigation and investigation partner and a litigation lawyer at
partner at Kellerhals Carrard, Kellerhals Carrard, with broad
where she heads the experience in commercial/
investigation practice group. financial litigation, arbitration,
Claudia advises her clients on white-collar crime, international
compliance, internal investigations, cross- judicial assistance (civil, administrative and
border proceedings, international mutual legal criminal), and enforcement of foreign
assistance, data privacy, and dispute judgments and awards. His practice extends to
resolution crisis management. She combines representing clients in national and
investigation and dispute resolution expertise international insolvency and bankruptcy
with significant business experience. Claudia matters, and advising on contracts,
was previously the head of litigation at commercial transactions and corporate law.
Novartis, where she led large multi- For more than 20 years, Florian has been
jurisdictional disputes and investigations and involved in major international legal assistance
advised senior management on company matters, large-scale Swiss criminal
litigation risks, financial and reputational proceedings and annexed commercial
impact. She is a participating member of litigation, and corporate investigations. He is a
Working Group 6 of the Sedona Conference, a member of the Zurich Bar Association and the
Certified International Privacy Professional and Swiss Bar Association.
a Certified Fraud Examiner. Claudia was a
Vanderbilt scholar and specialised in US
litigation.
358 CHAMBERS.COM
Roman Huber is a counsel for Lea Ruckstuhl is a counsel at

Kellerhals Carrard, with more Kellerhals Carrard who advises
than 15 years’ experience in her clients in financial market
dispute resolution issues. He is law, with a strong focus AML
further experienced in regulation, white-collar crime,
conducting large-scale internal and compliance. She is a
investigations relating to white-collar crime and member of the audit and investigation body of
regulatory issues. Roman was Head of the self-regulatory organisation of the Swiss
Compliance Investigations Switzerland at a Insurance Association and is admitted to all
major Swiss bank in Zurich (2021–22) and Swiss courts. Lea regularly publishes in her
worked for the Swiss Financial Market areas of expertise and has written on asset
Supervisory Authority in their enforcement freezing (Article 9a and Article 10 AMLA) in the
division as Deputy Head of International Basel Commentary. In 2007, she completed a
Co-operation from 2019–21. Roman holds a Master of Laws degree in European law
PhD in law from the University of Zurich (2013) (summa cum laude) at the University of
and received an LLM from the University of Freiburg and received the Frilex Prize for the
New South Wales, Sydney (2012) and a Master best university degree.
of Laws degree from the University of Lucerne
(2006).
Kellerhals Carrard
Rämistrasse 5
Postfach
CH-8024 Zurich
Switzerland
Tel: +41 58 200 39 00

Fax: +41 58 200 39 11
Email: florian.baumann@kellerhals-carrard.ch
Web: www.kellerhals-carrard.ch
359 CHAMBERS.COM
SWITZERLAND Trends and Developments

Contributed by:
Yves Klein
Monfrini Bitton Klein see p.365
What (and Who) is a De Facto Foreign Public the SCC) and money laundering (Article 305bis
Official? Recent Swiss Case Law Reaches A of the SCC) and sentenced her to a monetary
Verdict penalty. In the same decision, it also ordered
The main anti-corruption development in Swiss the forfeiture of the assets deposited in several
case law in 2022 concerns the definition of a de bank accounts, including USD373 million in a
facto foreign public official. Swiss bank account in the name of a Gibraltar
company named Takilant Ltd, of which Gulnara
In Decision BB.2022.3 of 18 July 2022, the Lower Karimova was allegedly the ultimate beneficial
Appeals Chamber of the Federal Criminal Court owner.
(FCC) reasserted the conditions under which a
family member of a high-ranking official (in this Under Article 352 of the Swiss Criminal Pro-
instance, Gulnara Karimova, daughter of Islam cedure Code (SCPC), the public prosecutor
Karimov, President of Uzbekistan from 1991 until may issue a criminal order if the person under
his death in 2016) may be considered as a de investigation has accepted responsibility for the
facto foreign public official under Article 322sep- offence in the preliminary proceedings – or if that
ties of the Swiss Criminal Code (SCC) (punishing responsibility has otherwise been satisfactorily
foreign bribery). From a procedural perspective, established – and the public prosecutor regards
this decision also brings to light the tools used any of the following sentences as appropriate:
by Swiss authorities in prosecuting the launder-
ing of proceeds of foreign bribery and raises the • a fine;
issue of the limits of relying on foreign decisions • a monetary penalty of no more than 180 daily
and criminal orders in that context. penalty units; or
• a custodial sentence of no more than six
Decision BB.2022.3 was issued in the context of months.
a criminal investigation initiated on 5 July 2012
by the Office of the Attorney General of Switzer- Forfeiture orders may be issued as part of the
land (OAG) against several Uzbek nationals for criminal order.
forgery of documents (Article 251 of the SCC)
and money laundering (Article 305bis of the Criminal orders are not public and are not sub-
SCC), which it subsequently extended to include ject to judicial review unless one of the parties
Gulnara Karimova for money laundering (Article (or a person affected by the order) objects to
305bis of the SCC) and disloyal management the order – in which case, the order becomes
(Article 158 of the SCC). the indictment before the criminal court of first
instance.
By criminal order of 22 May 2018, the OAG
found one of the Uzbek nationals guilty of the Even though the legislator had intended to use
offenses of forgery of documents (Article 251 of another procedure (the accelerated procedure)
360 CHAMBERS.COM
Contributed by: Yves Klein, Monfrini Bitton Klein
for plea bargaining, it should be noted that – in extorted bribes from international telecommu-
practice – criminal orders are very often used in nications companies to allow them to enter into
white-collar crime proceedings to conclude set- the Uzbek telecommunications market between
tlements between the public prosecutor and the 2004 and 2012).
person under investigation. In that context, the
facts admitted by the accused are often negoti- It its 86-page order SK.2020.49 dated 17
ated with the public prosecutors. December 2021, the Criminal Chamber found
that Gulnara Karimova should be considered a
In contrast, the accelerated procedure of Article de facto foreign public official.
358ff of the SCPC may be instituted provided
that: The criteria to apply, according to the Criminal
Chamber (recital 4.2.1, page 40), were as fol-
• the accused admits the matters essential to lows:
the legal appraisal of the case and recognis-
es, if only in principle, the civil claims; and • “a de facto public official is a person who per-
• the public prosecutor requests a custodial forms a task assigned to the State, without
sentence of up to five years. a legal link between the two. He derives the
power he exercises over the state decision-
In the accelerated procedure, the criminal court making process from the personal link,
of first instance must assess the evidence at particularly of kinship, which unites him to the
hand and be convinced that the offences were political authority, which favours or at least
indeed committed and the sentencing is reason- tolerates this situation”;
able. Judgments issued in accelerated proce- • “[t]his power of appreciation stems from the
dures are public, even though the name of the privileged relationship he has with the person
parties are usually redacted. who directs the public body concerned”; and
• “[t]his situation may arise particularly in
In the case in question, Takilant – which had not authoritarian (or, a fortiori, totalitarian) regimes
participated in the negotiation of the 22 May where the rule of law is deficient and power is
2018 criminal order – objected to the criminal monopolised by one person (the autocrat) or
order inasmuch as it ordered the forfeiture of its a group of individuals (the oligarchs)”.
bank account, and the proceedings continued
before the Criminal Chamber of the FCC. In reaching its conclusion that Gulnara Karimo-
va was a de facto public official, the Criminal
In order to assess whether the forfeiture order Chamber essentially relied on foreign criminal
should be confirmed, the Criminal Chamber had investigations (notably, in Sweden, the Nether-
to determine whether Takilant’s assets were the lands, France and the USA) – as well as criminal
proceeds of money laundering (Article 305bis of orders issued by the OAG against other Uzbek
the SCC). In that context, the alleged predicate nationals.
offence was bribery of a foreign public official
under Article 322septies (namely, that – in her However, the Criminal Chamber only confirmed
capacity as a de facto public official for the part of the forfeiture order (USD293.6 mil-
Republic of Uzbekistan – Gulnara Karimova had lion) and ordered the restitution to Takilant of
361 CHAMBERS.COM
USD69.2 million, which were not demonstrated • “As for the concept of de facto public official,
to be proceeds of passive foreign bribery. the Criminal Chamber accepted it, based
on several foreign judgments and deci-
Takilant appealed against the 17 December 2021 sions. Thus, according to the recitals of the
order to the Lower Appeals Chamber of the FCC. Criminal Chamber order dealing with the
acts in question (regardless of their proba-
In a decision dated 18 July 2022, the Lower tive value), the de facto public official status
Appeals Chamber admitted the appeal and of [Gulnara Karimova] would allegedly derive
referred the case back to the Criminal Chamber. from the fact that, through her family relation-
ship with the then President of Uzbekistan,
The Lower Appeals Chamber found that the she had influence over the telecommunica-
Criminal Chamber had made too broad an inter- tions market. Her power was based on her
pretation of the concept of a de facto public offi- privileged relationship with her father (recital
cial, in that it went beyond the two precedents 4.2.3.1.2, page 43). As for the other acts and
upon which it had relied – namely, SK.2014.24 passages of these acts cited, they merely
of 1 October 2014 and SK.2018.38 of 28 August state that [Gulnara Karimova] had the status
2018. These were criminal judgments issued in of a de facto public official, was a “member of
the context of accelerated proceedings, which the government” or a “civil servant”, without
respectively concerned: explaining why. [Gulnara Karimova] also held
“various official functions within the Uzbek
• the son of Libya’s former ruler Muammar state as well as with the United Nations as
Khadafi; and the Permanent Representative of the Republic
• the nephew of the Democratic Republic of the of Uzbekistan, making her – according to the
Congo’s President Joseph Kabila. Criminal Chamber – a de jure public official
at the time of the alleged facts. The Criminal
In both precedents, the head of states’ relatives Chamber adds that [Gulnara Karimova] is the
held both de facto and de iure functions in the daughter of a former autocrat, whose regime
State apparatus and were in a position to effec- is generally conducive to the emergence of
tively influence the decisions in question. de facto public officials. Referring to one of
the definitions of a politically exposed person
According to the Lower Appeals Chamber, this (PEP) contained in the federal law of 10 Octo-
was not the case for Gulnara Karimova: “The ber 1997 concerning the fight against money
notion of the performance of a public task by laundering and the financing of terrorism, the
[Gulnara Karimova] in the field of telecommuni- Criminal Chamber admits that [Gulnara Kari-
cations is not established to the satisfaction of mova] must certainly have been considered
the law, so that the latter’s status as a de facto as such and concludes that it was firmly con-
public official is not established either.” vinced that [Gulnara Karimova] was a public
official. The relevance of the use of one of the
The following excerpts are from the Lower legal definitions of the notion of PEP escapes
Appeals Chamber’s summary of The Criminal the Chamber of Appeal’s comprehension.
Chamber’s findings. Such a demonstration and, in particular, the
firm belief of the Criminal Chamber are insuffi-
362 CHAMBERS.COM
cient to establish [Gulnara Karimova]’s status • the definition of a de facto public official;
as a de facto or de jure public official in the • the use of foreign proceedings to prove brib-
Uzbek telecommunications market between ery; and
2005 and 2012. There is no evidence of a • the effect of criminal orders on third parties.
concrete state role in the telecommunications
sector. The only example is the one attrib- Regarding the concept of a de facto foreign
uted to it by the Criminal Chamber, through public official, it should be noted that the two
its understanding of the concept of de facto instances where it was admitted (in 2014 and
public official.” (Recitals, 2.7.1.) 2018) were accelerated procedures before the
• “However, these elements do not allow to Criminal Chamber and were unopposed. Deci-
establish that the counterpart expected from sion BB.2022.3 was thus the first time that the
and/or provided by [Gulnara Karimova] was issue of a de facto foreign public official was
an act (or an omission) in relation to an other- brought before the Lower Appeals Chamber.
wise undetermined state activity that she had The decision gives a firmer standing to the defi-
exercised and that depended on her discre- nitions and concepts developed in judgments
tionary power – ie, on her decision-making SK.2014.24 of 1 October 2014 and SK.2018.38
power. As it stands, they do not allow us to of 28 August 2018. It also reinforces how high
exclude that [Gulnara Karimova]’s role was the bar is for establishing that the relative of a
anything other than that of a private interme- high-ranking public official is a de facto public
diary to influence the decisions of the UzACI’s official, as it must be demonstrated that the rela-
public officials.” (Recitals, 2.7.3.) tive is in a position to:
Consequently, the Lower Appeals Chamber • effectively influence the foreign state’s deci-
found that Gulnara Karimova was not a de facto sions; and
foreign public official and that foreign passive • perform a public task in the context of that
bribery could thus not constitute a predicate decision-making process.
offence for the offence of money laundering that
led to the forfeiture of Takilant’s assets. Decision BB.2022.3 also brings to light the risk
of proving foreign bribery by reference to for-
However, the Lower Appeals Chamber indicated eign proceedings, as they may have a different
that the Criminal Chamber should have exam- definition of a de facto public official. The Crimi-
ined whether or not Gulnara Karimova had com- nal Chamber discussed at length the decisions
mitted acts of active bribery of Uzbek officials, reached in France, Sweden, the Netherlands
as these may – if proven – constitute a predicate and the USA, in which Gulnara Karimova was
offence to money laundering. found to be a de facto public official. The Lower
Appeals Chamber gave very little regard to those
Therefore, when admitting the appeal, the Lower decisions, however, and focused on the defini-
Appeals Chamber referred the case back the tions issued in the 2014 and 2018 judgments.
case to the Criminal Chamber for a new deci-
sion. Lastly, decision BB.2022.3 raises the question
of the use of criminal orders and their effects on
This decision deals with three issues: third parties. The criminal order of 22 May 2018
363 CHAMBERS.COM
(which is not a public document but which con- As mentioned earlier, criminal orders are not
tent was reported in the media) was negotiated public and undergo no judicial review. There-
with the convicted person’s lawyer without the fore, although they are easier to issue than going
participation of Takilant, even though the order through an accelerated procedure, this case is
forfeited its assets. The Criminal Chamber relied a good example of their ultimate lack of eviden-
notably on evidence given by individuals who tiary power when contested by third parties.
negotiated criminal orders with the OAG and
admitted to laundering the proceeds of corrupt
activities; however, they did not provide details
on the specific crimes committed.
364 CHAMBERS.COM
Monfrini Bitton Klein (MBK) was founded in Ge- tice in order to offer conflict-free services to its
neva by Enrico Monfrini in 1978 and became re- clients, focusing on asset recovery, white-collar
nowned in international business law, complex crime, anti-corruption and cross-border bank-
litigation and arbitration. From the end of the ruptcy, in addition to the enforcement of for-
1990s The firm began to focus on asset recov- eign judgments and arbitral awards. MBK is the
ery and white-collar crime from the late 1990s representative for Switzerland in ICC FraudNet,
onwards and went on to represent individuals the leading global network of fraud and asset
and liquidators in bankruptcies and victims of recovery lawyers, and has access around the
fraud and Ponzi schemes – as well as repre- world to hundreds of specialist correspond-
senting foreign governments in grand corrup- ent lawyers, private investigators, forensic ac-
tion asset-recovery proceedings, companies. countants, insolvency practitioners and litiga-
The firm changed its name to Monfrini Bitton tion funders.
Klein in 2017 and became a litigation-only prac-
Author
Yves Klein is a partner at proceedings before civil, criminal and
Monfrini Bitton Klein and a bankruptcy courts. He has published and
world-leading asset recovery, presented at international conferences on
anti-corruption and white-collar these topics since the 1990s. From 2016 to
crime lawyer, who has been 2018, he was chair of the Asset Recovery
admitted to the Bars of Geneva Subcommittee of the International Bar
and Switzerland since 1995. His main activities Association’s Anti-Corruption Committee. He is
are litigating and co-ordinating transnational fluent in French, English, Portuguese and
asset recovery and white-collar crime-related Spanish, and speaks some Italian and German.
Monfrini Bitton Klein

Place du Molard 3
1204
Geneva
Switzerland
Tel: +41 22 310 2266

Fax: +41 22 310 2486
Email: mail@mbk.law
Web: www.mbk.law/en
365 CHAMBERS.COM
UK
Law and Practice
The
Contributed by: Ireland United
Jessica Lee and Chloë Kealey Kingdom Germany
Brown Rudnick LLP see p.384 London
Belgium
France
Contents
2.1 Bribery p.368
3. Scope p.372
5. Penalties p.375
Penalties p.377
366 CHAMBERS.COM
UK Law and Practice
Contributed by: Jessica Lee and Chloë Kealey, Brown Rudnick LLP
1. Legal Framework for Offences The most significant feature of the current frame-
work is the strict liability corporate offence of
1.1 International Conventions failure to prevent bribery (Section 7 of the Bribery
The UK is a signatory of the United Nations Con- Act). This represented a break from tradition in
vention against Corruption, which is the only English law, which had only imposed criminal
legally binding universal anti-corruption instru- liability on corporates where it could be shown
ment. that the organisation’s directors or senior man-
agement knew of the criminal conduct at the
The UK is also signed up to the Organisation relevant time.
for Economic Co-operation and Development’s
Convention on Combating Bribery of Foreign Typically, investigations into bribery interact with
Public Officials in International Business Trans- the money laundering regime, which is governed
actions (the OECD Convention), which focuses by the Proceeds of Crime Act 2002 (POCA). Any
on the “supply side” of bribery. benefit flowing from a bribe is likely to constitute
“criminal property” under POCA; consequently,
Furthermore, despite its departure from the any company or individual dealing with the pro-
European Union, the UK remains a party to the ceeds of bribery may be exposed under POCA.
Council of Europe’s Criminal Law Convention on Those engaged in the regulated sector – includ-
Corruption, and the EU Convention against Cor- ing financial services firms, accountants and
ruption involving Officials. lawyers – have onerous obligations and direct
liability under POCA as they must report known
1.2 National Legislation or suspected money laundering by third parties;
The Bribery Act 2010 is the main statute for cor- failure to do so is itself a criminal offence. Indi-
ruption offences by individuals or companies. viduals in the regulated sector may be convicted
under POCA even where they did not subjective-
In contrast to the US Foreign Corrupt Practices ly suspect money laundering but where, objec-
Act 1977 (FCPA), the Bribery Act covers bribery tively, they had reasonable grounds for doing so.
in both the private and public sectors, and pro-
hibits any facilitation payments. The Bribery Act The Criminal Finances Act 2017 created addi-
is often described as the leading global standard tional powers to investigate potential proceeds
for anti-corruption law and is therefore important of crime, including the introduction of the unex-
to multinational companies. plained wealth order (UWO) regime (see 8.2
Likely Changes to the Applicable Legislation
Since the Bribery Act became law, other reforms of the Enforcement Body) and additional civil
include the introduction of Deferred Prosecution powers to recover proceeds of crime. It also
Agreements (DPAs) (through the Serious Crime extended UK anti-money laundering laws to
and Courts Act 2013) and a series of aggres- tackle terrorist funding, and created corporate
sive enforcement actions against corporates. To offences for facilitating tax evasion.
date, the Serious Fraud Office (SFO) has secured
12 DPAs. Bribery cases often also involve subsidiary
issues regarding fraud (Fraud Act 2006), com-
367 CHAMBERS.COM
UK Law and Practice
mon law conspiracy to defraud and/or false or benefiting from such bribery and misappro-
accounting (Theft Act 1968). priation. To date, sanctions under this regime
have been imposed on 27 individuals from Rus-
1.3 Guidelines for the Interpretation and sia, South Africa, India and a number of South
Enforcement of National Legislation American nations.
The key guidance is as follows:
More recently, the Economic Crime (Transparen-
• the Bribery Act 2010: Guidance about Proce- cy and Enforcement) Act 2022 (Economic Crime
dures which Relevant Commercial Organisa- Act) received royal assent in March 2022 and
tions can put into Place to Prevent Persons introduced registration and information require-
Associated with them from Bribing (Section ments for overseas entities buying or holding UK
9 of The Bribery Act 2010), published by the property, in an effort to improve the transparency
Ministry of Justice in March 2011 (the MoJ of UK property ownership and to deter criminals
Guidance); seeking to launder and hide proceeds of crime
• the Bribery Act 2010: Joint Prosecution Guid- within the UK. It also updated the financial sanc-
ance of The Director of The Serious Fraud tions and UWO regimes.
Office and The Director of Public Prosecu-
tions, published March 2011 (the Joint Pros- The UK government has also recently published
ecution Guidance); its proposed Economic Crime and Corporate
• the Code for Crown Prosecutors, October Transparency Bill. If passed, the bill will likely
2018; enter into force in 2023, setting out enhanced
• the Sentencing Council Fraud, Bribery and powers for regulators and law enforcement,
Money Laundering Offences: Definitive including the SFO and the National Crime Agen-
Guideline, effective 1 October 2014; and cy (NCA). It will also reform Companies House
• the SFO/DPP Joint Guidance on Corporate powers, establish additional verification require-
Prosecutions and the Deferred Prosecution ments for company ownership and control, and
Agreements Code of Practice: Crime and create new powers to seize and recover crypto-
Courts Act 2013, published 2014 (the DPA assets.
Code of Practice).
1.4 Recent Key Amendments to National 2. Classification and Constituent

Legislation Elements
In April 2021, the UK implemented the Global
Anti-Corruption Sanctions Regulations 2021. 2.1 Bribery
The new sanctions regime was foreshadowed The Bribery Act sets out four main offences:
by the UK Anti-Corruption Plan 2017–2022. Spe-
cifically, the Regulations enable the UK govern- • bribery (Section 1) – the offering, promising
ment to impose asset freezes and travel bans or giving of a bribe (commonly referred to as
on individuals and entities determined to have “active bribery”);
committed, or to have been involved in, serious • requesting or receiving a bribe (Section
corruption – specifically the bribing or misappro- 2) – the requesting, agreeing to receive or
priation of property from a foreign public official,
368 CHAMBERS.COM
UK Law and Practice
accepting of a bribe (commonly referred to as and the person performing the improper con-
“passive bribery”); duct need not be the same person to whom
• bribery of a foreign public official (Section 6) – the bribe is offered or given; and
bribery of a foreign public official to obtain or • the offences apply to conduct outside the
retain business, or a business advantage; and UK – the Bribery Act has wide extra-territorial
• failure to prevent bribery (Section 7) – a cor- effect. The bribe does not need to be agreed,
porate offence of failing to prevent bribery by paid or received in the UK and the con-
an associated person on behalf of a relevant duct that is, or is intended to be, performed
commercial organisation. This is a strict improperly need not be performed in the UK.
liability offence, meaning that the prosecu-
tor need not prove that the company, acting Definition of a Bribe
through its senior management, possessed A bribe is “a financial or other advantage”, which
any particular state of mind at the time of the is not defined in the Bribery Act but, accord-
bribery offence. ing to the Joint Prosecution Guidance and the
explanatory notes to the Act, the term is a mat-
Bribery and Requesting or Receiving a Bribe ter of fact for the jury to determine, based on its
It is an offence under Section 1 for a person to ordinary meaning.
offer, promise or give a bribe. It is equally an
offence under Section 2 to ask for, agree to or Facilitation Payments
receive a bribe. Although some jurisdictions (eg, the USA) toler-
ate genuine facilitation payments, they remain
A bribe is a financial or other advantage given unlawful in the UK, and can be an offence under
to another person, and it must be intended that Sections 1 or 6 of the Bribery Act. Where that
the bribe should induce or reward improper offending involves a corporate entity, it will be
conduct, or that the acceptance of the bribe in exposed to Section 7. However, it is important
itself would be improper conduct. The improper to note that prosecutors retain an element of
conduct must relate to the exercise of a pub- discretion. In deciding whether to prosecute for
lic function or be carried out in a business or a facilitation payment, authorities will consider
employment context. The conduct must also be the Full Code Test set out in the Code for Crown
in breach of an expectation to act in good faith, Prosecutors, the Joint Prosecution Guidance
impartially or in breach of an expectation arising and, where relevant, the joint Guidance on Cor-
out of the person’s position of trust (see Sections porate Prosecutions.
3, 4 and 5 of the Bribery Act).
The Full Code Test requires that prosecutors
It is important to note that: consider whether there is sufficient evidence to
provide a realistic prospect of conviction and,
• the offence can arise even where no finan- if so, whether a prosecution is required in the
cial or other advantage is actually given or public interest. The prosecution should proceed
received; only if both stages of the Full Code Test are met.
• both offences can be committed indirectly The Joint Prosecution Guidance sets out spe-
– ie, through third parties. The bribe can be cific public interest considerations in relation
offered or accepted through an intermediary, to facilitation payments and factors tending in
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favour of and against prosecution. Factors tend- that business. The only defence is to demon-
ing in favour of prosecution include: strate that the RCO had “adequate procedures”
to prevent bribery by its associated persons.
• large or repeated payments;
• payments that are planned or a standard way To convict under Section 7, the prosecution
of conducting business; must prove that:
• payments that indicate an element of active
corruption of the official; and • a person was associated with a relevant com-
• where an appropriate policy regarding facilita- mercial organisation (an AP of an RCO);
tion payments was not correctly followed. • the AP committed a bribery offence; and
• in doing so, the AP intended to obtain or
Factors tending against prosecution include: retain business or a business advantage for
the RCO.
• a single small payment likely to result in only
a nominal penalty; The Section 7 offence only relates to the failure
• payments identified through a genuinely pro- to prevent acts of bribery under Sections 1 and
active approach involving self-reporting and 6; it does not apply to the demand side of brib-
remedial action; ery – ie, the request or receipt of a bribe under
• where a clear and appropriate policy regard- Section 2.
ing facilitation payments was correctly fol-
lowed; and The RCO can be liable under Section 7 even
• where the payer was in a vulnerable position where the AP was not convicted of the underly-
given the circumstances in which the paying offence. However, there must be sufficient
ment was demanded. evidence to prove that an offence under Section
1 or 6 of the Bribery Act was committed.
The MoJ Guidance recognises (at paragraph 48)
that there may be circumstances in which a per- All UK companies, and foreign companies that
son has no realistic alternative but to make pay- carry on part of a business in the UK, are caught
ments, and suggests the common law defence by the definition of an RCO. Courts in the UK
of duress is available where payments are made will have jurisdiction over an RCO regardless of
to prevent “loss of life, limb or liberty”. Whilst where in the world the underlying bribery was
those are narrow circumstances, companies committed.
operating in relevant industries and/or locations
should ensure that their anti-bribery policies and A person is associated with the RCO if they
training include clear guidance on duress. perform services for or on behalf of the RCO,
in whatever capacity. The definition of an AP
Failure to Prevent Bribery (in Section 8 of the Bribery Act) is broad and
Section 7 of the Bribery Act introduced strict includes an employee, agent or subsidiary.
corporate criminal liability for any corporate enti- Whether that person “performs services for or
ty (specifically, a “relevant commercial organisa- on behalf of” the RCO will be a matter of fact
tion” – an RCO, discussed below) where bribery in each case, depending upon the circumstanc-
is committed by an “associated person” (AP) of es. The law presumes that an employee of an
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RCO is an AP; that presumption is rebuttable. or where there were attempts to conceal it, there
The MoJ Guidance (at paragraphs 42 and 43) will be a greater inference that it was intended
emphasises the importance of evidence as to as a bribe.
what the associated person intended when
committing the bribery. Bribery Between Private Parties in a
Commercial Setting
Bribery of Foreign Public Officials Sections 1, 2 and 7 of the Bribery Act (see above)
It is an offence to bribe a foreign public official apply to bribery whether it occurs in the public
(which is defined broadly in Section 6) with the sector or between private parties in a commer-
intention to influence that person in their official cial setting. Section 16 of the Bribery Act specifi-
capacity, but only where the bribe is intended to cally provides that the Act “applies to individuals
obtain or retain business or a business advan- in the public service of the Crown as it applies to
tage. other individuals”.
If the written law applicable to the foreign public 2.2 Influence-Peddling

official allows or requires them to be influenced As previously noted, the definition of bribery
by a financial or other advantage, no offence will in the substantive offences includes “financial
be committed. or other advantage”. Similarly, the definition of
the bribe recipient’s intended “improper perfor-
This offence can be committed where the bribe mance” could well catch “influence-peddling”. It
is offered through a third party. Note that a Sec- would, however, be a matter of fact to be deter-
tion 6 offence does not require intention by the mined by a court as to whether any exchange
briber that the foreign public official should per- of influence amounted to some kind of “other
form their role improperly; if the evidence shows advantage”.
that the briber intended to influence the official
to obtain or retain a business advantage then the 2.3 Financial Record-Keeping
briber will be guilty of the offence. The Bribery Act contains no specific accounting
or book-keeping offences, but the Companies
Hospitality and Promotional Expenditures Act 2006 requires companies to keep adequate
The MoJ Guidance recognises that bona fide, books and records. Specifically, failure to keep
reasonable and proportionate hospitality and adequate accounting records constitutes an
promotional expenditure is an important part of offence under Sections 386 and 387 of the Com-
doing business. However, such expenditure can panies Act 2006.
constitute a bribe if it is intended to induce or
encourage improper performance by the recipi- In addition, the way bribes are accounted for
ent or, in the case of foreign public officials, if it is will often constitute a false-accounting offence
intended to influence the recipient in their official under Section 17(1) of the Theft Act 1968 – ie,
role to secure a business advantage. The Joint the falsification of accounting records with the
Prosecution Guidance notes that prosecutors intent to gain for oneself, or to cause loss to
need to consider the full circumstances of each another.
case; where hospitality is lavish and beyond
what may be reasonable in those circumstances,
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2.4 Public Officials offences occurring on or after 1 July 2011 will

Public officials who misappropriate or misuse be prosecuted under the Bribery Act; offences
funds are liable to be prosecuted for several committed before that date are covered by the
crimes, including offences under the Fraud Act common law and statutory offences, including
2006. They may also be charged with miscon- the (now repealed) Public Bodies Corrupt Prac-
duct in public office, which is a complex and tices Act 1889, the Prevention of Corruption Act
archaic offence that has recently been subject 1906 and the Prevention of Corruption Act 1916.
to scrutiny by the Law Commission. The offence
of misconduct in public office arises where a Cases such as the Rolls-Royce DPA demon-
public officer, acting as such, wilfully neglects strate that conduct of a historic nature can and
to perform their duty and/or wilfully misconducts will be pursued; the Statement of Facts in that
themselves to such a degree as to amount to an case covered criminal conduct spanning the
abuse of the public’s trust in the office-holder period between 1989 and 2013.
without reasonable excuse or justification.
3.2 Geographical Reach of Applicable
A public officer may find themselves charged Legislation
with fraud (if they benefited in some way from The Bribery Act has extensive extra-territorial
their alleged criminality) or with misconduct in jurisdiction; it catches circumstances where the
public office. If charged with a fraud offence, alleged offending occurred wholly outside the
their status as a public official will be consid- UK.
ered as an aggravating factor, justifying a higher
sentence than for a private citizen. If the person committing the act or omission has
a “close connection” with the UK, it is irrelevant
2.5 Intermediaries that their conduct occurred entirely outside the
The use of intermediaries is an important, and UK. Under Section 12(4), a close connection
often pivotal, issue in many corruption cases. with the UK includes where the person is a Brit-
Each of the Bribery Act offences could arise ish national, a British citizen, ordinarily resident
through the use of an intermediary. The Section in the UK, or a body incorporated under UK law.
1, 2 and 6 offences expressly include use of a
third party for bribery, requesting or receiving a The corporate offence (Section 7) applies to any
bribe or bribery of a foreign public official. Whilst RCO (wherever incorporated) that carries on any
each case will turn upon its own facts, interme- part of its business in the UK. An RCO could
diaries are likely to be “associated persons” for be prosecuted for failure to prevent bribery even
the purposes of Section 7, thereby creating cor- where the bribery takes place wholly outside the
porate liability. UK and the benefit or advantage to the company
is intended to accrue outside the UK.
3. Scope However, the Bribery Act does not define what

constitutes “part of a business”, although the
3.1 Limitation Period MoJ Guidance states (at paragraph 36) that
There are no limitation periods for the pros- organisations need a “demonstrable business
ecution of indictable offences. However, only presence” in the UK. The MoJ Guidance notes,
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UK Law and Practice
for example, that either having a UK subsidiary tion relating to the use of corrupt agents in
or being listed on the LSE would not in itself the oil and gas sector by its legacy business.
mean a company was carrying on a business or The offences spanned from 1996 to 2014 and
part of a business in the UK for the purposes of took place across the world, in Nigeria, Saudi
Section 7. Arabia, Malaysia, India and Brazil. Under
the terms of the DPA, AFWEL agreed to pay
The following are examples of Section 7 cas- a financial penalty and costs amounting to
es that centred upon conduct overseas, often GBP103 million in the UK, which formed part
through an overseas office or subsidiary of the of the USD177 million global settlement with
UK company. UK, US and Brazilian authorities.
• In October 2021, London-based energy
• Sweett Group plc, the first corporate con- company Petrofac Limited pleaded guilty
victed under Section 7, pleaded guilty in to failing to prevent executives from using
December 2015. Its subsidiary in the United agents to bribe officials to win oil contracts in
Arab Emirates had made corrupt payments to Iraq, Saudi Arabia and the United Arab Emir-
two senior directors at Al Ain Ahlia Insurance ates between 2011 and 2017. The company
Company to secure a contract for construc- admitted several counts of failing to prevent
tion of the Rotana Hotel in Abu Dhabi. bribery contrary to Section 7 of the Bribery
• Standard Bank plc entered into a DPA in rela- Act and was ordered to pay a confiscation
tion to its Tanzanian sister company, Stanbic, order of GBP22,836,985 and a financial pen-
and payments to a local partner in Tanzania. alty in excess of GBP47 million.
Although Standard Bank had no interest in, • In June 2022, Glencore Energy (UK) Ltd
oversight or control over Stanbic, the latter pleaded guilty to five counts of bribery under
was an AP because it was performing ser- Section 1 of the Bribery Act and two counts
vices on Standard Bank’s behalf and for its of the Section 7 failure to prevent offence.
benefit; both companies stood to benefit from The offences related to the company’s opera-
the transaction in relation to which the bribe tions in Cameroon, Equatorial Guinea, Ivory
was paid. Coast, Nigeria and South Sudan.
• Rolls-Royce plc and Rolls-Royce Energy
Systems, Inc entered into a DPA in January 3.3 Corporate Liability
2017 in respect of a suspended charge under Individuals and corporates can commit the
Section 7 (amongst other charges) regard- offences of active bribery, passive bribery and
ing bribes paid by intermediaries and Rolls- bribery of a foreign public official under Sections
Royce employees in Indonesia, Nigeria, China 1, 2 and 6 of the Bribery Act.
and Malaysia.
• In January 2020, the SFO secured a DPA with Because these offences require mens rea, the
Airbus SE. The DPA charged Airbus with five liability of a corporate for the offences must
counts of the failure to prevent offence across be established through the “identification prin-
five jurisdictions. ciple”, which establishes that only the acts
• In July 2021, the SFO entered into a DPA with and state of mind of those who represent the
Amec Foster Wheeler Energy Limited (AFW- “directing mind and will of the corporation” can
EL). AFWEL admitted ten offences of corrup- be imputed to the corporation itself (Lennard
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v Asiatic Petroleum [1915] AC 705). The case 4. Defences and Exceptions

of Tesco Supermarkets Ltd v Nattrass [1972]
AC 153 defined the directing mind and will of a 4.1 Defences
company as extending to the “board of direc- For the adequate procedures defence (Section
tors, the managing director and perhaps other 7(2) of the Bribery Act) to succeed, the court
superior officers of the company who carry out must be satisfied that the company had ade-
functions of management and speak and act as quate procedures in place to prevent bribery at
the company”. Under the Bribery Act, where the the time of the relevant conduct.
directing mind and will of the company have the
necessary criminal intent, the corporate will be Those procedures must be proportionate to that
directly liable for the offences under Sections 1, organisation’s bribery risks and to the nature,
2 and 6. That contrasts with the strict corporate scale and complexity of its activities. The MoJ
liability under Section 7. Guidance recognises that no anti-corruption
measures can prevent all instances of bribery,
Where an offence under Section 1, 2 or 6 of and specifies the six principles that should
the Bribery Act is committed by a body corpo- inform the procedures implemented by a rel-
rate and it can be proved that the offence was evant commercial organisation:
committed with the consent or connivance of
a senior officer or a person purporting to act in • proportionate procedures;
that capacity, that individual is also guilty of the • top-level commitment;
offence under Section 14. However, where the • risk assessment;
offending was outside the UK, they will only be • due diligence;
liable if they have a “close connection” to the UK • communication (including training); and
under Section 12 of the Bribery Act. • monitoring and review.
By contrast, only an RCO can be liable for the It is critical that the procedures in place are
offence of failure to prevent bribery by an asso- effective in practice.
ciated person under Section 7. The RCO will
incur liability for an offence or offences by the In March 2018, Skansen Interiors Limited was
AP unless it can prove it had adequate proce- the first contested prosecution of a corporate
dures in place to prevent bribery, even where it defendant for offences under Section 7 of the
was not aware of the offence. See 4.1 Defences Bribery Act. In that case, the company unsuc-
for further information. cessfully relied on the defence of adequate pro-
cedures. Skansen contended that, although it
DPAs remain an attractive option for organisa- did not have a specific anti-bribery and corrup-
tions, as they avoid a time-consuming, costly tion policy in place at the time of the alleged
and damaging prosecution and trial. In essence, offending, there were a number of procedures
a DPA allows an organisation to take a one-off for maintaining transparency and integrity in its
financial hit, remove uncertainty around its future business transactions. There were also anti-
and avoid an adverse impact on its share price. bribery clauses in the company’s relevant con-
tracts, and the system for approving and set-
tling invoices required multiple levels of internal
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approval. Furthermore, evidence adduced at trial 5. Penalties

demonstrated that the company’s employees
were aware that bribery was prohibited. Skansen 5.1 Penalties on Conviction
therefore argued that these checks and balanc- The maximum penalty for an individual convicted
es were sufficient for a company of its size (30 on indictment under the Bribery Act is ten years’
employees), given its localised operation. The imprisonment and/or an unlimited fine.
jury, however, decided that the controls in place
were insufficient and returned a guilty verdict. A corporate convicted of an offence under the
Bribery Act faces an unlimited fine. Conviction
As previously mentioned, the common law is likely to result in a compensation order for
defence of duress is available where payments any loss resulting from the offence and/or the
are made to prevent “loss of life, limb or liberty”. confiscation of any criminal proceeds. An order
to reimburse the cost of the investigation and
4.2 Exceptions prosecution of the offence is also likely.
There are no further exceptions to the statutory
defences outlined in 4.1 Defences. When considering what penalty to impose, a
court must follow any sentencing guidelines
4.3 De Minimis Exceptions issued by the Sentencing Council or its prede-
There are no de minimis exceptions to the cessor, the Sentencing Guidelines Council. The
offences in the Bribery Act. However, when Sentencing Council has, for example, issued
considering whether prosecution is in the pub- guidelines in relation to three of the offences cre-
lic interest, a prosecutor may decide against ated by the Bribery Act, and a sentencing court
enforcement where the bribe was of a low value. will be bound to apply them. Where there is no
As previously noted in relation to facilitation pay- sentencing guideline in existence, courts must
ments, the Joint Prosecution Guidance includes follow any guidance provided by the Court of
“a single small payment likely to result in only a Appeal (Criminal Division) and consider the fac-
nominal penalty” amongst the factors tending tors outlined in Part 12 of the Criminal Justice
against prosecution. Act 2003.
4.4 Exempt Sectors/Industries Even where there are no criminal proceedings, it

There are no sector or industry exemptions. is open to a prosecutor to apply for a civil recov-
ery order under Part 5 of POCA in order to recov-
4.5 Safe Harbour or Amnesty Programme er property obtained through unlawful conduct.
See the defence of adequate procedures under In practice, however, it will rarely be appropriate
4.1 Defences and the outline of the self-report- for criminal conduct by a company to be dealt
ing regime and DPAs under 5.1 Penalties on with by means of a civil recovery order because
Conviction. it would be inconsistent with the basic principles
of justice for the criminality of corporations to
be glossed over by the imposition of a civil (as
opposed to a criminal) sanction.
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The DPA Code of Conduct suggests that the In October 2019, the SFO agreed a DPA with
appropriateness of a civil recovery order should Güralp Systems Ltd (GSL), covering the offence
be considered where neither limb of the eviden- of conspiracy to make corrupt payments, con-
tial stage can be met by the conclusion of DPA trary to Section 1 of the Criminal Law Act 1971.
negotiations, and it is not considered appropri- The terms of the agreement required GSL to pay
ate to continue the criminal investigation. over GBP2 million and to co-operate with the
SFO to ensure compliance with the Bribery Act.
Previous Corporate Penalties
In July 2016, the SFO entered into a DPA with In January 2020, the SFO agreed a record-
Sarclad Ltd, a UK technology company based breaking DPA with Airbus SE relating to five
in Rotherham, regarding the failure to pre- counts of the failure to prevent offence across
vent a bribery offence. Sarclad paid a total five jurisdictions. The DPA is the world’s larg-
of GBP6,553,085, comprised of disgorge- est resolution for bribery, amounting to a total
ment of gross profits of GBP6,201,085 and a penalty of almost EUR3.6 billion, EUR991 mil-
GBP352,000 financial penalty. lion of which was to be paid to the SFO by way
of disgorgement of profits, a fine and the SFO’s
In January 2017, Rolls Royce plc paid a total of legal costs. It is also thought to be the first co-
GBP497.25 million plus interest and the SFO’s ordinated settlement agreement between the
costs of GBP13 million (as well as large sums in UK, US and French authorities.
settlement with enforcement authorities in the
US and Brazil) in relation to offences including In October 2020, the SFO entered into a DPA
conspiracy to corrupt, false accounting and fail- with Airline Services Limited (ASL), under which
ure to prevent bribery. In that case, the conduct ASL accepted responsibility for three counts of
covered by the DPA spanned three decades, failing to prevent bribery contrary to Section 7
involved multiple parts of the business and took of the Bribery Act, arising from the company’s
place across seven jurisdictions. use of an agent to win three contracts to refit
commercial airliners for Lufthansa, worth more
In April 2017, Tesco Stores Limited entered into than GBP7.3 million. The agent acting for ASL
a DPA with the SFO in relation to creating a false was also working as a project manager for Luf-
account of its financial position. Tesco paid a thansa and was therefore privy to commercially
total of GBP128,992,500 and the SFO’s costs sensitive information about potential competi-
of GBP3,069,951. tors to ASL and exploited this information to
influence and advantage ASL’s own tender
In July 2019, the SFO entered into a DPA with bids. Under the DPA, ASL was required to pay
Serco Geografix Ltd in relation to fraud and false GBP2,979,685, consisting of a financial pen-
accounting offences that concerned misleading alty of GBP1,238,714, disgorgement of profits
the Ministry of Justice about the Serco parent representing the gain of the criminal conduct of
company’s profits. Serco paid a financial pen- GBP990,971, and a contribution to the SFO’s
alty of GBP19.2 million and the SFO’s costs costs of GBP750,000. The company is also
of GBP3.7 million. This was in addition to the obliged to co-operate fully with the SFO and
GBP12.8 million paid by Serco to the Ministry any other domestic or foreign law enforcement
of Justice as part of a civil settlement in 2013. agency.
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On 19 July 2021, the SFO entered into two DPAs jects funded by the World Bank or its partner
with two UK companies (which at the time of development banks and cross-debarment. A
writing have not been named due to report- conviction under Section 1, 2 or 6 of the Bribery
ing restrictions) for bribery offences contrary Act will lead to the mandatory exclusion of an
to Sections 1 and 7 of the Bribery Act. Under economic operator (defined in Section 2 of the
the DPAs, the companies are required to pay Public Contracts Regulations 2015) from partici-
GBP2,510,065, by way of disgorgement of prof- pation in public tenders, under the Public Con-
its and financial penalty in relation to bribery contracts Regulations 2015. The Section 7 offence
nected with multimillion-pound UK contracts. of failure to prevent bribery will not trigger man-
datory exclusion but may give rise to grounds in
The conviction of Skansen in April 2018 for fail- support of a discretionary exclusion under the
ure to prevent bribery represents an anomaly in Public Contracts Regulations 2015. Clearly, such
corporate sentencing. Skansen was a dormant debarments could prove fatal to any company
company that had, prior to 2014, traded in office with a significant portion of revenues derived
interior design. Following a change of senior from public contracts.
management in early 2014, the company discov-
ered a number of irregular payments in respect Public contracts would have been a relevant
of a number of its contracts. The subsequent concern for G4S in its July 2020 DPA with the
internal investigation resulted in a self-report to SFO for fraud offences. Although this was not a
the City of London Police and other law enforce- corruption case, it is instructive for practitioners
ment authorities. Although the company ceased in this area generally, including with regard to
to trade shortly thereafter, the Crown Prosecu- the company’s delayed approach to co-opera-
tion Service (CPS) elected to prosecute, despite tion with the SFO and the consequential effect
the company’s proactive approach to (and assis- of that delay upon the relatively limited discount
tance in) the investigation. Because Skansen applied to the ultimate financial penalty.
was a dormant company with no assets, the
court could only impose an absolute discharge, 5.2 Guidelines Applicable to the
which immediately became spent. The rationale Assessment of Penalties
for prosecution of a dormant company where The range of sentences appropriate for each
there is no prospect of any meaningful penalty offence under the Bribery Act is specified by
on conviction has been the subject of debate. the Sentencing Council’s Corporate Offenders:
The CPS, however, justified the prosecution on Fraud, Bribery and Money Laundering Offences
the basis that it would send a message to the Guideline. For each offence, the Council has
industry about the importance of putting anti- specified categories with sentencing ranges
bribery procedures in place. reflecting varying degrees of seriousness and a
starting point for each category. Once the start-
Skansen should not, however, be viewed as an ing point is determined, the court will take into
indicator of the penalties likely to be imposed account aggravating and mitigating factors set
on trading companies that are convicted for out in the guidance.
Section 7 offences. Other consequences may
include disqualification of an individual to act For corporate offenders, the starting point will
as a company director and exclusion from pro- generally be the gross profit arising from the
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contract(s) obtained (or otherwise affected) by 6.3 Disclosure of Violations of Anti-

the criminal conduct. That figure is then mul- bribery and Anti-corruption Provisions
tiplied by a prescribed percentage, depending Regarding disclosure, individuals and corporates
on whether there is low, medium or high cul- operating in the “regulated sector” (ie, financial
pability. The figure is then adjusted upwards or institutions, professionals and those dealing with
downwards, based on the presence of aggra- high-value transactions) also have concurrent
vating and/or mitigating factors. A court is also duties to report and prevent money laundering
required to consider the totality and proportion- under POCA. These duties require those in the
ality of its sentence, with the Guideline stating regulated sector to report activities and transac-
that the “combination of orders made, compen- tions they reasonably consider to be suspicious.
sation, confiscation and fine ought to achieve Failure to do so may result in that individual or
the removal of all gain, appropriate additional corporation being prosecuted in their own right
punishment, and deterrence”. under the “failure to disclose” offence.
In August 2019, the SFO published Corporate

6. Compliance and Disclosure Co-operation Guidance, aimed at providing
organisations and their legal advisers with trans-
6.1 National Legislation and Duties to parency about what to expect if they self-report
Prevent Corruption bribery to the SFO.
Section 7 of the Bribery Act 2010 creates a spe-
cific defence for corporations that can demon- 6.4 Protection Afforded to Whistle-
strate they had “adequate procedures” in place Blowers
to prevent bribery; see 4.1 Defences. Whistle-blowing protection is afforded to UK
workers under the Employment Rights Act
6.2 Regulation of Lobbying Activities 1996 (ERA), as amended by the Public Interest
The Transparency of Lobbying, Non-Party Cam- Disclosure Act 1998 (PIDA) and the Enterprise
paigning and Trade Union Administration Act and Regulatory Reform Act 2013 (ERRA). The
2014 (Lobbying Act) regulates lobbying in the ERA was introduced to protect employees from
UK. Under the Lobbying Act, consultant lobby- being unfairly dismissed, or otherwise subjected
ists are required to be registered; carrying on the to detriment, where they had made a “protected
business of consultant lobbying whilst unregis- disclosure” – ie, disclosed information about an
tered is an offence. It is also an offence to fail alleged wrongdoing in certain defined circum-
to provide certain information when required by stances.
the Registrar of consultant lobbyists. Further-
more, donations received by political parties are To qualify for protection, numerous requirements
controlled by the Political Parties, Elections and need to be met.
Referendums Act 2000, and registered parties
may only accept donations from “permissible The ERRA strengthened the whistle-blowing
donors”. protections under the ERA in 2013 by introduc-
ing personal liability for co-workers, or agents
of an employer, who subject a whistle-blower
to detriment in the course of their employment
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UK Law and Practice
because they have made a protected disclosure. 7.2 Enforcement Body

Employers also have vicarious liability where In England, Wales and Northern Ireland, the SFO
other workers or agents subject a whistle-blower is the lead prosecution body for offences under
to detriment, unless the employer has taken all the Bribery Act. It was established under the
reasonable steps to prevent that behaviour. Criminal Justice Act 1987 (CJA 1987) to inves-
tigate and prosecute offences involving serious
6.5 Incentives for Whistle-Blowers and complex fraud. In deciding whether to pur-
There are no financial incentives for whistle- sue a particular case, the Director of the SFO
blowers to report bribery or corruption in the considers whether the criminal conduct under-
UK, although, in exceptional circumstances, mines UK commercial or financial interests, the
the Competition and Markets Authority offers scale of the actual or potential financial loss
incentives of up to GBP100,000 for information and whether there is a significant public inter-
that leads to the successful investigation and est issue. In Scotland, the primary prosecutor is
prosecution of cartels. the Lord Advocate. The CPS also pursues cases
brought by individual police forces around the
Where a person admits to offending and agrees UK.
formally to co-operate with a criminal investi-
gation and any subsequent prosecution, they The other major enforcement bodies are the
may be eligible to enter a “SOCPA agreement” NCA (a criminal investigative agency) and the
with the prosecutor under the Serious Organised Financial Conduct Authority (FCA). The NCA’s
Crime and Police Act 2005 (SOCPA). In excep- economic crime division contains a specific
tional cases, a person might receive immunity international corruption unit, which has a par-
from prosecution in exchange for their co-oper- ticular focus on money laundering offences aris-
ation. In practice, however, it is more common ing from corruption overseas and recovering the
to see co-operation lead to a reduction in sen- proceeds of crime. The NCA investigates cases
tence, separately and in addition to the usual for subsequent prosecution by the CPS. By
discount a defendant receives upon entering a contrast, the FCA does not typically prosecute
guilty plea. offences under the Bribery Act, but it has a wide
remit for regulating the financial services indus-
6.6 Location of Relevant Provisions try, which includes the imposition of rules and
Regarding Whistle-Blowing requirements for systems and controls to pre-
See 6.4 Protection Afforded to Whistle-Blow- vent financial crime, including bribery and cor-
ers. ruption. The interplay between the FCA and the
SFO is often critical to the outcome of a financial
services investigation, particularly in relation to
7. Enforcement any agreement as to the scope of each respec-
tive agency’s investigation.
corruption Laws The National Economic Crime Centre (NECC)
Please see 7.2 Enforcement Body regarding civ- was launched in 2018, with the primary function
il, criminal and/or administrative enforcement of of co-ordinating the national response to fraud
anti-bribery and anti-corruption laws in the UK. and corruption in the UK. It brings together law
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UK Law and Practice
enforcement and justice agencies, government it to receive documents and compel witnesses
departments, regulatory bodies and the private to answer questions before opening a formal
sector. It has both a law enforcement and a investigation in relation to cases of suspected
crime prevention role. The NECC is able to direct international bribery. The Economic Crime and
the SFO to investigate corruption cases, among Corporate Transparency Bill, however, proposes
other matters. an expansion of the scope of the pre-investiga-
tion powers to include all cases within the SFO’s
7.3 Process of Application for remit involving serious or complex fraud, bribery
Documentation and corruption.
Under Section 2 of the CJA 1987, the SFO has
extensive and intrusive powers to compel the The extra-territorial effect of Section 2 powers is
production of information. considered further in 7.5 Jurisdictional Reach of
the Body/Bodies.
Put simply, the SFO need only issue a formal
letter of demand specifying the categories 7.4 Discretion for Mitigation
of information, including documents, that it A prosecuting agency is responsible (alongside
requires from the recipient. In practice, investi- the defence) for informing the sentencing court
gators often start from the premise of issuing a of any relevant mitigating and aggravating fac-
broad demand for documents. Recipients of any tors that are present in the case.
such notice should carefully consider its scope,
and engage promptly with the SFO to negotiate Plea agreements are available to individuals in
the scope of the demand and the timeframe for certain circumstances. When considering a plea
response (wherever possible). agreement, prosecutors must adhere to specific
guidance in the Attorney General’s Guidelines on
Wide-ranging demands present significant Plea Discussions in Cases of Serious or Com-
practical difficulties for companies, which may plex Fraud (published November 2012) and the
hold data for thousands of affected contracts or Criminal Procedure Rules. The general principles
employees and store the data in various loca- of the Guidelines are that, when conducting plea
tions, including overseas. The legal issues that discussions, prosecutors must act openly, fairly
this presents include a potential clash with data and in the interests of justice.
privacy laws; various jurisdictions require spe-
cific informed consent before personally identi- Those principles require the prosecutor to
fiable information is processed for specific pur- ensure:
poses, such as a criminal investigation. Similarly,
the company should be alive to its potential legal • that the defendant has sufficient information
risk in other jurisdictions where its disclosure of to participate in the plea discussions;
documents to the SFO would run contrary to any • that there is transparency before the court –
banking secrecy statutes, blocking statutes or ie, that any agreement put to the court fully
state secrecy laws. and fairly reflects the terms agreed; and
• fairness in its dealings with the defendant
The SFO also has limited pre-investigation pow- – ie, not putting any improper pressure on
ers under Section 2A of the CJA 1987, enabling them or misrepresenting the strength of the
380 CHAMBERS.COM
UK Law and Practice
prosecution case, and acting in the interests The Supreme Court unanimously allowed the
of justice, meaning that the plea agreement appeal. Its starting point was the presumption
reflects the severity and extent of the offend- that domestic legislation is not generally intend-
ing behaviour, and pays careful attention ed to have extra-territorial effect. This presump-
to the impact of the plea agreement on the tion reflects the requirement that states should
victims and on the chances of bringing a suc- not infringe each other’s sovereignty and the
cessful prosecution against any other person concept of international comity. Furthermore,
involved in the underlying offences. there was no reason why the presumption
should be displaced in relation to Section 2(3) of
7.5 Jurisdictional Reach of the Body/ the CJA, either by the language of the statute or
Bodies by the intention of Parliament and the availability
As outlined in 7.2 Enforcement Body, the SFO’s of mutual legal assistance schemes.
Section 2 powers have limited extra-jurisdiction-
al effect where the “sufficient connection test” The SFO (amongst others) may seek mutual
is met. legal assistance from overseas authorities via
the Crime (International Co-operation) Act 2003.
In 2018, the extra-territorial reach of the SFO’s Under that statute, the SFO may utilise the assis-
legislative powers was tested in KBR v SFO tance of overseas authorities to serve various
[2018] EWHC 2368 (Admin). In that case, the documents (eg, summonses, Section 2 notices),
SFO had initiated an investigation into suspected obtain evidence (including witness statements,
bribery at KBR Ltd, a UK subsidiary of KBR Inc, documentary and banking evidence) and exe-
a US-registered company. The SFO issued KBR cute search and seizures.
Ltd with a Section 2 notice and subsequently
served a further notice upon two officers of KBR The Crime (Overseas Production Orders) Act
Inc who were visiting the UK. KBR challenged 2019 (the COPO Act) gives law enforcement
the legality of that Section 2 notice by way of agencies such as the SFO and prosecutors the
judicial review, arguing that the SFO did not have power to obtain electronic data directly from an
the power to require a non-UK company to pro- overseas communications service provider. The
duce materials held outside of the jurisdiction. UK government has stated that those extensive
powers will be subject to robust judicial over-
The High Court held that the SFO’s powers sight, and emphasised the relevant statutory
under Section 2(3) of the CJA were intended to protections for legally privileged or journalistic
have some extra-territorial application but that material.
it could compel foreign companies to produce
documents held overseas only when there is a In mid-2020, the UK-US Bilateral Data Access
“sufficient connection” between the company Agreement (the Bilateral Agreement) became
and the UK. On the facts, there was a sufficient effective. The legislative background for that
connection between KBR US and the UK, as the treaty is the COPO Act and the US Clarifying
payments made by KBR UK appeared to have Lawful Overseas Use of Data Act. In brief over-
been approved by KBR US. KBR appealed the view, the Bilateral Agreement seeks to improve
decision directly to the Supreme Court. cross-border co-operation by allowing direct
access, upon application, to “covered data” (ie,
381 CHAMBERS.COM
UK Law and Practice
communications content, metadata and traffic paying GBP300,000 in bribes to a purchasing

data) held by a “covered communications pro- manager employed by one of ALCA’s customers
vider” (ie, any business that provides data com- in order to secure contracts valued at GBP12
munication, processing or storage to the public). million. In addition to the custodial sentence,
a seven-year Company Director Disqualifica-
7.6 Recent Landmark Investigations or tion Order was imposed, and the individual
Decisions involving Bribery or Corruption was required to pay a Confiscation Order in the
Since late 2018, the SFO has discontinued more amount GBP4,494,541 and prosecution costs to
investigations than it has commenced. Notably, the SFO in the amount of GBP478,351.
it has discontinued several high-profile and long-
running investigations, most recently (June 2022) More recently, in October 2021, David Lufkin,
closing a four-year investigation into defence a former executive of Petrofac, received a sen-
technology company Chemring. The SFO had tence of two years’ imprisonment (suspended for
been investigating bribery, corruption and mon- 18 months), having entered earlier guilty pleas to
ey laundering arising from Chemring’s business a total of 14 counts of bribery contrary to Sec-
following a self-report from the company. tions 1 and 2 of the Bribery Act. The offences
admitted by Mr Lufkin related to the making of
Despite the closure of a number of historic corrupt payments to influence the award of con-
investigations, the SFO continues to investigate tracts to Petrofac worth in excess of USD730
a number of fraud and bribery matters. In April million in Iraq and in excess of USD3.5 billion in
2022, it announced that it was “stepping up” its Saudi Arabia. In addition to his guilty pleas, Mr
investigation into suspected fraud, fraudulent Lufkin had provided extensive assistance to the
trading and money laundering relating to com- SFO in its investigation.
panies within the Gupta Family Group Alliance,
including financing arrangements with Greensill
Capital UK Ltd. 8. Review
7.7 Level of Sanctions Imposed 8.1 Assessment of the Applicable
Following the prosecution of Skansen (see 4.1 Enforced Legislation
Defences) in 2018, the company’s former man- In March 2019, the House of Lords Select Com-
aging director and another individual (the recipi- mittee published its report entitled “The Bribery
ent of Skansen’s bribes) received custodial sen- Act 2010: Post-legislative Scrutiny”, which con-
tences of 20 months and 12 months respectively. sidered whether the Act was fulfilling its intended
Both individuals had pleaded guilty to bribery purpose. The report concluded that the Bribery
and their sentences reflect a discount. Ancillary Act is an “excellent” piece of legislation, with
orders were also used, with one individual being offences that are clear and all-embracing. It
disqualified from acting as a company director noted that the availability of the corporate fail-
for seven years. ure to prevent offence (Section 7) is particularly
effective at encouraging company management
In June 2019, the former managing director and to conduct business in an ethical manner.
owner of UK company ALCA Fasteners Limited
was sentenced to two years’ imprisonment for
382 CHAMBERS.COM
UK Law and Practice

In September 2022, SFO Director Lisa Osofsky
delivered a speech in which she reflected on
priorities for the SFO she had set out in 2018.
Osofsky stated that she will continue to push
those priorities:
• proactive and confident case progression;

• smart use of technology in investigations;
• enhanced international co-operation; and
• an intelligence, evidence-led approach.
She further stated that one of the biggest chal-

lenges currently faced by the SFO is disclosure,
and that another priority for the year ahead will
therefore be rebalancing the system for justice
by recognising the challenges that the SFO fac-
es in document-heavy investigations.
383 CHAMBERS.COM
UK Law and Practice
Brown Rudnick LLP represents clients in rela- instructed to conduct corporate internal inves-
tion to the full range of financial crime investiga- tigations, with a view to advising corporations
tion and enforcement issues, including domes- and their senior management regarding the
tic and international bribery and corruption. The merits of self-reporting to the authorities. The
firm is frequently instructed by individuals and team has extensive experience in working with
corporations subject to investigation and/or en- the US Foreign Corrupt Practices Act, the UK
forcement proceedings involving allegations of Bribery Act, the OECD Anti-Bribery Convention
bribery. Brown Rudnick provides an integrated and other anti-corruption laws, in the context of
strategy for clients facing concurrent liability investigations, litigation and corporate transac-
from civil action, administrative sanction and tions.
criminal prosecution. The firm is also routinely
Authors
Jessica Lee is a senior Chloë Kealey is an associate in
associate in Brown Rudnick’s Brown Rudnick’s litigation
litigation group and has broad group, focusing on white-collar
experience in complex and crime and contentious
high-value commercial litigation. regulatory investigations. She
She has a particular focus on has experience in acting for both
civil fraud, and has acted on numerous corporates and individuals in relation to
complex cross-border civil fraud cases, many allegations of bribery and corruption, fraud and
of which also involve issues of financial crime. other regulatory matters brought by the SFO,
Jess has also advised on significant FCA and HMRC.
investigations and compliance matters,
including investigations by the US Department
of Justice and the Serious Fraud Office, for
both corporates and individuals.
Brown Rudnick LLP

8 Clifford St
Mayfair
London
W1S 2LQ
UK
Tel: +44 207 851 6000

Fax: +44 207 851 6100
Email: jslee@brownrudnick.com
Web: www.brownrudnick.com
384 CHAMBERS.COM
USA
Canada
Law and Practice

United States
Contributed by: of America Washington
Eric Bruce and Justin Simeone
Freshfields Bruckhaus Deringer LLP see p.404
Mexico
Contents
2.1 Bribery p.387
3. Scope p.391
5. Penalties p.396
Penalties p.397
385 CHAMBERS.COM
USA Law and Practice
Contributed by: Eric Bruce and Justin Simeone, Freshfields Bruckhaus Deringer LLP
1. Legal Framework for Offences scope and application (eg, successor liability,
parent-subsidiary relationships, and individual
1.1 International Conventions liability).
The United States has ratified the OECD Con-
vention on Combating Bribery of Foreign Public In 2020, the DOJ issued the first significant revi-
Officials and the UN Convention Against Corrup- sion of the FCPA Resource Guide since it was
tion. It has signed, but not ratified, the Council of first published in 2012. The key updates cover:
Europe Criminal Law Convention on Corruption.
• the FCPA’s extraterritorial application (dis-
1.2 National Legislation cussed in detail below);
The Foreign Corrupt Practices Act (FCPA) is the • the factors US courts may consider in deter-
main federal legislation relating to foreign brib- mining whether a non-US person is a “foreign
ery. official” for the purposes of the FCPA;
• recent judicial decisions limiting the SEC’s
A variety of domestic statutes (see 1.3 Guide- ability to obtain disgorgement as a remedy for
lines for the Interpretation and Enforcement of violations of securities law; and
National Legislation) govern domestic bribery or • emphasising the importance of effective com-
other corruption involving state or federal gov- pliance programmes, including:
ernment officials and employees. Most of the (a) pre-M&A due diligence; and
relevant federal statutes are found in Title 18 of (b) robust investigation, analysis, and reme-
the United States code. Each state has its own diation when misconduct is identified.
criminal laws prohibiting bribery or corruption-
related offences. Some local or municipal gov- The Justice Manual
ernments may have anti-corruption or ethics This document sets out DOJ policy and prac-
regulations. tice regarding how to charge and prosecute
violations of most federal criminal statutes. The
1.3 Guidelines for the Interpretation and Justice Manual is a useful reference for under-
Enforcement of National Legislation standing the DOJ’s interpretation of the law and
The most important federal anti-corruption the factors it considers when making decisions
agencies actively issue and revise public guid- regarding (for example) whether to file charges,
ance documents, which are important resources what penalties to seek, and how to treat co-
but are not legally binding. operating witnesses and defendants.
The two most relevant sources of guidance are The Justice Manual includes a section on the
detailed below. DOJ’s Principles of Federal Prosecution of Busi-
ness Organizations, which lays out the agency’s
The FCPA Resource Guide approach to investigating and prosecuting
A joint publication by the US Department of corporations. The Principles feature important
Justice (DOJ) and the Securities and Exchange information about how prosecutors approach
Commission (SEC), this document provides businesses that co-operate with federal inves-
an overview of the FCPA and the agencies’ tigations.
approaches to key questions about the FCPA’s
386 CHAMBERS.COM
In addition to revisions of official guidance, such value in return for an official act or omission
as the Justice Manual and the FCPA Resource by a public official. This law also prohibits
Guide, new enforcement approaches may be exchanging things of value for an act of fraud
announced on an ad hoc basis through memo- by the public official (or for the public official’s
randa, public statements by agency officials, or assistance in a fraud).
other publications. State agencies sometimes • The “gratuities” law, codified at 18 U.S.C.
take a similar approach. Section 201(c), prohibits giving “anything of
value” to a current, former, or future public
1.4 Recent Key Amendments to National official “because of any official act” (unless
Legislation such an act is provided for by law). This
There have not been significant legislative statute is broader than the “bribes” law at 18
amendments to the key federal corruption stat- U.S.C. Section 201(b) because it does not
utes in 2022. require “corrupt” intent or an explicit quid pro
quo.
• 18 U.S.C. Sections 207–08, the federal
2. Classification and Constituent criminal conflict of interest statutes, restrict
Elements the conduct of federal officers and employ-
ees during and after their federal service. In
2.1 Bribery general, federal officials must not engage in
The list below identifies the federal criminal stat- official acts that could affect their personal
utes that are frequently used to prosecute brib- financial interests (or those of their family
ery and corruption. Individual states may have members, their future employers, or certain
similar statutes. affiliated organisations). These offences are
strict liability, although wilful violations expose
• The Foreign Corrupt Practices Act is codi- an official to more severe penalties.
fied at 15 U.S.C. Sections 78dd-1 et seq. The • 18 U.S.C. Sections 641, 654, and 666 broadly
statute prohibits “corruptly” giving “anything prohibit theft, wrongful conversion, embez-
of value” to “foreign official[s]” or political zlement, or bribery involving federal property
party members for the purpose of: or programmes funded by federal money.
(a) influencing the foreign official’s acts or Generally speaking, the acts must be com-
decisions; mitted “knowingly” or with a “corrupt intent”
(b) inducing the foreign official to act con- for criminal liability to apply.
trary to their lawful duty; • Federal fraud statutes, especially the mail
(c) securing “any improper advantage”; or and wire fraud statutes at 18 U.S.C. Sections
(d) inducing the foreign official to influence a 1341 and 1343, are frequently used in cor-
foreign government “in order to assist... in ruption prosecutions. 18 U.S.C. Section 1346
obtaining or retaining business for or with, authorises prosecutors to file charges under
or directing business to, any person.” these statutes based on an “honest services”
• The general prohibition on bribing US officials theory – ie, that a corrupt official deprived the
is codified at 18 U.S.C. Section 201(b). This government of its intangible right to his or her
statute prohibits “corruptly” giving or receiv- uncompromised judgment, discretion, etc
ing (or offering, demanding, etc) anything of (ie, their “honest services”). These charges
387 CHAMBERS.COM
require a specific intent to deprive the gov- Merely proposing or accepting an improper
ernment of honest services, property, etc. advantage may constitute an offence. Generally,
• Other federal statutes are often also used to US anti-corruption statutes do not require that
charge conduct related to a bribery scheme, the desired results occur, as long as the perpe-
although they are not specifically related to trator acted with the requisite intent. Indeed, US
corruption. For example, prosecutors may authorities often criminally prosecute defendants
charge corrupt officials (or their co-conspira- under broad conspiracy statutes in situations
tors) with: where it would be impossible for the expected
(a) extortion (18 U.S.C. Section 1951) for results to occur – for example, by using under-
obtaining property (eg, a bribe) “under cover law-enforcement agents who are only pre-
colour of official right”; tending to be public officials or connected to
(b) travelling in interstate or foreign com- public officials.
merce (or sending interstate emails,
phone calls, etc) to “promote” or “carry Hospitality, travel, gifts and promotions
on” unlawful activity, including violations Under domestic bribery laws, federal and state
of state bribery laws (18 U.S.C. Section officials, including elected political figures and
1952, also called the “Travel Act”); or career employees, are generally restricted in
(c) money laundering (18 U.S.C. Sections the gifts and hospitality they may receive from
1956-57) for monetary transactions sources outside the government. Some officials,
involving the bribe funds or the proceeds such as members of Congress, may be required
of a bribery scheme. Conspiring to violate to disclose the gifts they receive to the public.
any of these statutes, or aiding and abet- For federal employees, gifts over USD20 are
ting violations, may be separately charged generally prohibited (and they generally may not
under 18 U.S.C. Sections 2, 371, and/or accept more than USD50 in a year from a single
1961–68. non-government source). Travel expenses are
a separate, complicated area of law and also
Bribery require an analysis of internal government ethics
A bribe may be “anything of value” under the rules. Whether or not a government employee’s
FCPA and domestic statutes. “Things of value” travel may be funded by a non-government
have included cash payments, benefits in kind, source often depends on the purpose of the trip
lavish gifts, excessive hospitality, charitable and the specific rules of the agency where they
donations, contracts, or employment relation- work.
ships.
The FCPA does not limit foreign officials’ ability
The receipt of a bribe is an offence for domes- to accept gifts, hospitality, etc, but such expens-
tic bribery under 18 U.S.C. Section 201, but es can be “things of value” that can give rise to
not under the FCPA. The US government has FCPA liability.
employed other laws (such as money-launder-
ing statutes) to prosecute foreign officials who Gratuities
receive bribes, however. The FCPA permits persons subject to its juris-
diction to make “facilitating or expediting
payment[s]... the purpose of which is to expe-
388 CHAMBERS.COM
dite or to secure the performance of a routine general perception that the entity is performing
governmental action” by a foreign official. In official or governmental functions”.
practice, this exemption is read very narrowly.
In practice, criminal and civil FCPA charges often
The domestic bribery statute does not have an involve payments or gifts to employees at state-
equivalent provision. It is a separate crime to owned or state-controlled enterprises.
pay a “gratuity”, which is a facilitation payment
made on account of an official act but not with Domestic statutes
an intent to influence it. Courts have held that if 18 U.S.C. Section 201 defines a “public official”
an official demands payment to perform a rou- as a “Member of Congress, Delegate, or Resi-
tine duty, a defendant may raise an economic dent Commissioner, either before or after such
coercion defence to the bribery charge. official has qualified, or an officer or employee
or person acting for or on behalf of the United
Failing to prevent bribery is not a specific offence States or any department, agency or branch of
under US law (and US law generally does not Government thereof, including the District of
criminalise failures to prevent a crime). Columbia, in any official function, under or by
authority of any such department, agency, or
FCPA branch of Government, or a juror.” State statutes
The FCPA defines the term “foreign official” as feature similar definitions.
“any officer or employee of a foreign government
or any department, agency, or instrumentality The bribery of foreign public officials is also
thereof, or of a public international organisation, criminalised. The FCPA prohibits corrupt pay-
or any person acting in an official capacity for ments to foreign public officials for the purpose
or on behalf of any such government or depart- of obtaining or retaining business opportunities.
ment, agency, or instrumentality, or for or on Likewise, foreign bribery may be prosecuted
behalf of any such public international organi- under the Travel Act.
sation.”
Commercial bribery is primarily regulated by
The FCPA Resource Guide advises that state- state rather than federal law. For example, New
owned or state-controlled companies may be York Penal Law Section 180.00 provides that
“instrumentalities”, so that their employees could “[a] person is guilty of commercial bribing in the
be considered “foreign officials”. Many factors second degree when he confers, or offers or
are relevant in determining whether such a com- agrees to confer, any benefit upon any employ-
pany is an “instrumentality”, including “the for- ee, agent or fiduciary without the consent of the
eign state’s extent of ownership of the entity; the latter’s employer or principal, with intent to influ-
foreign state’s degree of control over the entity ence his conduct in relation to his employer’s or
(including whether key officers and directors of principal’s affairs”. Because several US states
the entity are, or are appointed by, government have criminalised commercial bribery, the DOJ
officials); the foreign state’s characterisation of has taken the position that violations of such
the entity and its employees; the purpose of the state commercial bribery laws can be predicate
entity’s activities; the entity’s obligations and offences under the Travel Act.
privileges under the foreign state’s law and the
389 CHAMBERS.COM
Federal prosecutors may also charge private amount of the pecuniary gain per violation. Nei-
bribery or kickback schemes as mail or wire ther materiality nor knowledge is required to
fraud under an “honest services fraud” theory. establish civil liability.
2.2 Influence-Peddling The DOJ has authority over criminal accounting

No federal criminal statute uses the term “influ- violations (ie, where persons “knowingly circum-
ence-peddling”. vent or knowingly fail to implement a system of
internal accounting controls or knowingly falsify
As noted elsewhere, conduct involving improper any book, record, or account” required to be
use of official authority, especially where a pri- maintained under the FCPA). Penalties for crimi-
vate party receives an “undue advantage”, may nal violations of the FCPA’s accounting provi-
violate a variety of federal or state laws, including sions are set forth below.
the federal fraud and conflict of interest statutes,
abuse-of-power laws, or lobbying regulations. 2.4 Public Officials
Numerous federal statutes cover public officials’
The FCPA specifically prohibits giving things of conduct. For example, prosecutors may charge
value to a foreign official for purposes of “secur- corrupt public officials for conduct related to:
ing any improper advantage” in connection with
obtaining or retaining business. • theft, wrongful conversion, embezzlement, or
bribery related to or involving federal property
Conduct involving foreign officials may also or federally funded programmes (18 U.S.C.
implicate federal or state laws on fraud, con- Sections 641, 654, and 666);
flicts of interest, or lobbying. Acting on behalf • conflicts of interest, generally caused by
of foreign officials may also violate the US law federal officials engaging in official acts that
requiring foreign government agents to register could affect their personal financial interests
with the federal government. (or those of their family members, their future
employers, or certain affiliated organisations
2.3 Financial Record-Keeping (18 U.S.C. Sections 207–08)); and
The FCPA requires “issuers” (generally speak- • acting with the specific intent to deprive the
ing, entities whose securities are registered with government of its intangible right to “honest
the SEC and/or entities that are required to file services”, such as the public official’s uncom-
periodic reports with the SEC) to keep accurate promised judgment, discretion, etc (18 U.S.C.
books and records and to establish and main- Section 1346).
tain a system of internal controls adequate to
ensure that the company’s assets are managed 2.5 Intermediaries
in compliance with management’s instructions. The FCPA and domestic statutes apply to
For accounting violations, the SEC may impose offences committed through an intermediary.
civil penalties, seek injunctive relief, enter a
cease-and-desist order and require disgorge- Liability against a principal may arise for pay-
ment of tainted gains. Civil fines may be up to ments made by an agent or intermediary if the
a maximum of USD963,837 for a corporation principal “knew” about the misconduct. This
or USD192,768 for an individual, or the gross includes when the principal was aware of a high
390 CHAMBERS.COM
probability that the agent was making improper committed abroad, but extraterritorial jurisdic-
payments, even if the principal did not know tion varies from one statute to another.
about a specific payment or consciously avoid-
ed learning about the payment (ie, remained Non-US conduct may be covered by US law
“wilfully blind” to it). where either the specific statute applies extrater-
ritorially, or there is a US nexus (eg, the scheme
Companies subject to US jurisdiction commonly involves a US bank account).
conduct due diligence on prospective intermedi-
aries to mitigate these risks. For example, “red Extraterritoriality
flags” in this type of diligence may include com- US law on extraterritoriality is complex and
mission payments to the intermediary in excess changes with judicial decisions and legislative
of market value, a family or other relationships action. Different statutes apply outside the USA
between an agent and a government official, or a in different ways. US statutes are presumed not
recommendation of a particular agent by a gov- to have extraterritorial effect unless they include
ernment official. a “clear indication” to the contrary. Without a
“clear indication”, courts examine the statute’s
“focus” to determine whether an alleged violation
3. Scope is “domestic”. The law continues to change in
this area; some courts have found that domestic
3.1 Limitation Period conduct is necessary, but not sufficient, to apply
Most federal crimes are subject to a five-year US law to claims that mostly arise overseas.
statute of limitations, although criminal violations
of the FCPA’s accounting provisions are subject As an initial point, US law applies on US soil – so
to a six-year limitations period. In some circum- if individuals are visiting the US (for business or
stances, prosecutors may be legally permitted pleasure), they face increased US legal risk over
to charge defendants for conduct that pre-dates any business they do while on their trip. Sec-
the limitations period. For example, if the con- ondly, US law often applies to US citizens, per-
duct is part of an ongoing scheme or conspiracy, manent residents (ie, “green card” holders), and
the limitations period begins to run at the end entities organised under US law anywhere in the
of the scheme. However, as long as one act in world. Non-US transactions could be exposed
furtherance of the conspiracy occurred within to US legal risk because some of the personnel
the five-year period, a conspiracy charge would are US nationals.
still be timely.
FCPA
State statutes of limitations vary between juris- Criminal conduct outside the USA could result in
dictions. FCPA liability under one of four theories: issuer
liability, domestic concern liability, liability as an
3.2 Geographical Reach of Applicable agent of an issuer or domestic concern, and,
Legislation potentially, conspiracy/accomplice liability.
Defendants are often prosecuted in the USA
even where most of the criminal conduct was
391 CHAMBERS.COM
Issuers is possible that the non-US company could be

If a legal entity is an issuer of registered US held liable for either conspiring with or aiding
securities (regardless of where the entity is and abetting the US person or legal entity that is
headquartered), the entity may be held liable for directly subject to the FCPA, or wilfully causing
violations of the FCPA’s anti-bribery provisions the US person or legal entity to violate the FCPA.
committed anywhere in the world, provided that As with direct liability for issuers and domestic
there is a connection to the USA (eg, an email concerns, this type of liability may apply without
that touches the USA). If an issuer is organised regard to where any improper payments were
under US laws, the entity may be held liable for made, as long as the co-conspirator is organised
FCPA violations, irrespective of any other con- under the laws of the USA or any state in the
nection to the US. USA, or there is a connection to the USA.
Issuers are also subject to the FCPA’s account- The United States Court of Appeals for the Sec-
ing provisions everywhere in the world. ond Circuit, however, recently ruled that a non-
resident foreign national may not be charged
Domestic concerns with conspiracy to violate the FCPA or with aid-
US domestic concerns (ie, US nationals and ing and abetting an FCPA violation unless the
businesses incorporated under US law or head- foreign national acted as an agent of an “issuer”
quartered in the USA and their employees, or a “domestic concern” or was physically pre-
agents, etc) are required to comply with the sent in the US. The Second Circuit is only one
FCPA’s anti-bribery provisions, regardless of of 11 intermediate federal appellate courts, and
where their operations may be located. Such at least one other district court has decided dif-
entities may be held liable for violations of the ferently.
FCPA outside the USA.
Domestic statutes
Agent liability As noted, US courts presume that most US
A person or legal entity acting as an agent of criminal statutes do not apply extraterritorially.
an issuer or domestic concern can face FCPA For example, courts have ruled that 18 U.S.C.
liability for engaging in conduct in furtherance Sections 666, 1341, 1343, and 1346 do not
of an improper payment, even when the issuer/ apply extraterritorially.
domestic concern did not expressly direct or
authorise the improper payment. This type of It is important to note, however, that even if
liability may apply without regard to where the specific statutes are not applied extraterritori-
improper payments were made if the conduct ally, non-US conduct may fall under the scope
involves a US person or there is a connection of a statute that does, such as the Travel Act
to the USA. or some charges under 18 U.S.C. Section 371.
For example, a court has ruled that a defendant
Conspiracy and accomplice liability who allegedly accepted a bribe in Paris violated
If a non-US company acts in concert with the Travel Act, regardless of whether 18 U.S.C.
another company or person, and jurisdiction Section 201 applied extraterritorially.
can be established for that company or person
(eg, because they are a domestic concern), it
392 CHAMBERS.COM
Moreover, statutes involving domestic bribery – Corporate prosecutions are more common for
that is, bribes paid to US officials – are likely to FCPA violations than domestic bribery, but both
have a US nexus. Authorities are more likely to are possible.
rely on a US nexus for jurisdictional arguments
than a potentially complex extraterritoriality High-level directors, officers, etc, need not be
theory. involved for corporate criminal liability to apply.
Any employee or third-party contractor can incur
US Nexus liability on behalf of a corporation.
Even US laws that do not have extraterritorial
effect may apply in cases involving foreign con- Finally, a subsidiary’s criminal conduct may be
duct if certain US connections exist, including imputed to its parent corporation, if the subsidi-
emails sent through a US server, telephone calls ary is the parent’s agent. To make this deter-
placed to or from the United States, or US dollar- mination, US authorities evaluate whether the
denominated transactions clearing through US parent controls the subsidiary, including through
correspondent bank accounts. knowing about and/or directing the subsidiary’s
actions.
3.3 Corporate Liability
Under general principles of US law: Parallel Individual and Corporate Liability
While no individual need be convicted in order for
• corporations may be held criminally liable, a company to face liability, DOJ policy empha-
including for violations of the FCPA or domes- sises individual accountability. Authorities often
tic bribery statutes; look favourably on co-operating companies that
• individuals and corporations may be held identify key individuals involved in misconduct,
liable for the same offence; and and may consider such efforts when assessing a
• successor entities may be held liable for company’s co-operation (and any related reduc-
offences by the target entity prior to the tion in penalties).
merger or acquisition.
Successor Liability
Corporate Liability When one company merges with or acquires
Under the doctrine of respondeat superior, a cor- another, the successor generally assumes the
poration may be held criminally liable for the acts predecessor’s liabilities under US law, includ-
of its employees, agents, officers, etc, provided ing criminal liabilities. Prosecutors and regula-
that: tors, however, sometimes decline to act against
companies that conducted comprehensive
• those acts were undertaken within the scope pre-acquisition due diligence and voluntarily
of their employment (even if such actions disclosed and remediated any potentially prob-
were against corporate policy); and lematic conduct identified during the diligence.
• they were intended, at least in part, to benefit
the corporation. The DOJ has held successor companies liable
for the acts of predecessor companies following
mergers and acquisitions when the misconduct
continued after the transaction, however. Author-
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ities may still take action against the predeces- 4.2 Exceptions
sor (if they would have had jurisdiction over it), As with the defences themselves, exceptions to
but the FCPA Resource Guide emphasises the US criminal defences generally arise from com-
value in a company with a robust compliance mon law, rather than specific statutory provi-
programme acquiring a company without one. sions. For example, a person may not be able
to rely on an “advice-of-counsel” defence where
the advice was obtained in bad faith (eg, they
4. Defences and Exceptions withheld key facts from outside counsel).
4.1 Defences 4.3 De Minimis Exceptions

The FCPA includes two affirmative defences to In general, there are no statutory de minimis
anti-bribery charges, codified at 15 U.S.C. Sec- exceptions for violations of US criminal laws
tion 78dd-1(c). First, there is a defence if the (although, as previously noted, US laws permit
payment, offer, etc “was lawful under the written certain de minimis gifts for government officials).
laws and regulations of the... [relevant foreign] Because of US authorities’ considerable pros-
country.” A recent case held that this defence ecutorial discretion, however, enforcement may
only applies where the payment is affirmatively be less likely where only de minimis amounts
authorised by local law (ie, the defence does not are involved. As noted, small payments related
apply where the payment is simply not prohib- to routine government actions may fall within the
ited by local law). FCPA’s narrow exception for so-called facilita-
tion payments.
The second defence provides that “reasonable
and bona fide expenditures, such as travel and 4.4 Exempt Sectors/Industries
lodging expenses... was directly related to the The key US anti-bribery and anti-corruption laws
promotion, demonstration, or explanation of do not exempt any industry or sector.
products or services; or the execution or perfor-
mance of a contract” with a foreign government. A potential defendant’s industry or sector may
informally be factored into decisions about how
In practice, defendants also commonly claim the government resolves a potential violation,
that they lacked the requisite intent to commit however. For example, government authorities
a corruption crime, that the conduct did not may be willing to consider how to investigate
involve an “official act” by a government official, defence companies without publicising sensitive
or that there was no quid pro quo in which a ben- national security information.
efit was offered in exchange for an official act.
The FCPA does not recognise a formal defence The Justice Manual and the US Sentenc-
based on adequate procedures, but, as a prac- ing Guidelines (USSG), a set of advisory rules
tical matter, prosecutors and SEC enforcement designed to inform judges’ discretion when
attorneys may take the adequacy of compliance imposing criminal sentences, both encourage
controls into account when making charging companies to self-disclose misconduct by offer-
decisions. ing “credit” for such co-operation. Co-operation
credit is a key aspect of US criminal and regula-
394 CHAMBERS.COM
tory defence, and it often features prominently • a commitment from senior management to a
in authorities’ decisions about whether and what “culture of compliance”;
type of action to bring, as well as providing a • a clearly articulated policy against corruption
basis for reductions in penalties and other nega- and a code of conduct;
tive consequences of enforcement actions. • the assignment of responsibility for over-
sight and implementation of the anti-bribery
The Justice Manual and Compliance and corruption compliance programme to a
Guidance senior executive with appropriate experience,
In addition to the USSG, both the Justice Man- sufficient autonomy from management, and
ual and the FCPA Resource Guide discuss self- resources to ensure the programme is imple-
reporting and co-operating with law enforce- mented effectively;
ment, and the DOJ has provided guidance on • assessing the risks faced by the company
the types of factors it considers in assessing a so that the company can take a risk-based
company’s compliance programme when inves- approach in designing and implementing its
tigating a corporate entity (the “US Compliance anti-bribery and corruption compliance pro-
Guidance”). The DOJ is not legally obliged to gramme; and
follow the US Compliance Guidance, which is • periodically testing and reviewing the anti-
similarly not binding on other US government bribery and corruption compliance pro-
authorities. Even so, the DOJ and others gen- gramme.
erally take these factors (or similar ones) into
account. The Justice Manual also includes the FCPA
Corporate Enforcement Policy (CEP). The CEP
The DOJ takes a functional approach to the US establishes a rebuttable presumption that the
Compliance Guidance — the agency does not DOJ will decline to prosecute a company for
simply verify whether a compliance programme FCPA violations if the company:
includes certain components (eg, a whistle-
blower programme). Instead, the US Compli- • voluntarily self-discloses misconduct;
ance Guidance emphasises that the DOJ will • fully co-operates with the DOJ’s investigation;
make an individualised assessment of a com- and
pany’s compliance programme based on that • takes timely and appropriate remedial action.
company’s particular risk profile and specific
context. Indeed, the US Compliance Guidance The CEP provides insight into how the DOJ
notes that there is no “rigid formula” for assess- assesses compliance and remediation and
ing compliance programmes and that the topics potential penalty reductions for co-operating
it addresses are not exhaustive. companies that do not qualify for a declination.
Recent DOJ actions indicate that it will apply the
While recognising that a compliance programme approach to leniency set out in the CEP to other
must be tailored to a company’s particular risk kinds of misconduct, beyond FCPA violations.
profile, the Compliance Guidance identifies best
practices that are common to effective compli-
ance programmes. These practices include, but
are not limited to:
395 CHAMBERS.COM
CEP Revisions Wilful violations of the accounting provisions

In 2019, the DOJ revised the CEP to reflect may result in criminal fines of up to USD25 mil-
changes in DOJ policy and practice, including lion for a legal entity. Individuals may be required
the following points. to pay fines of up to USD5 million and/or serve
as many as 20 years in prison. Moreover, the
• Successor liability: a “comment” in the CEP DOJ is authorised to seek a fine of up to twice
states that, where a buyer “uncovers mis- the benefit that the defendant obtained by mak-
conduct through thorough and timely due ing the corrupt payment(s), which often repre-
diligence” or via post-acquisition efforts and sents a far greater amount than the maximum
voluntarily self-discloses and remediates the fines previously noted.
misconduct, “there will be a presumption of a
declination in accordance with and subject to Defendants may be required to pay civil mon-
the other requirements of this Policy”. etary penalties of USD10,000 for each viola-
• Business records: to receive full remediation tion of the anti-bribery provisions, whether by
credit, a company must demonstrate that it an individual or legal person. The DOJ and the
“[a]ppropriate[ly]” retains “business records”, SEC may also seek civil disgorgement penalties
even if the company does not specifically for books and records violations.
prohibit employees from using instant mes-
saging platforms or other communications Domestic Bribery
technologies that may be periodically erased. Penalties for violating domestic bribery or fraud
• Individual accountability: to receive credit for laws vary by jurisdiction.
voluntarily self-disclosing misconduct, a com-
pany must disclose “all relevant facts known For example, violations of the federal mail or wire
to it at the time of the disclosure” relating fraud statutes may result in fines and up to 20
to “any individuals substantially involved in years’ imprisonment (or 30 years’ imprisonment
or responsible for the misconduct at issue”. in some circumstances). The maximum penalty
These changes recognise that companies for violating 18 U.S.C. Section 201(b) is 15 years
may not know every detail about all individu- in prison and/or substantial monetary fines; 18
als involved in misconduct at the time of a U.S.C. Section 201(c) has a maximum prison
voluntary self-disclosure. sentence of two years and/or fines.
Collateral Consequences
5. Penalties Aside from imprisonment and monetary fines/
penalties, an anti-corruption investigation (or
5.1 Penalties on Conviction even allegations that a company has violated
FCPA bribery or corruption laws) could lead to sev-
Violating the FCPA’s substantive anti-bribery eral collateral consequences that could prove
provisions may result in up to five years’ impris- extremely damaging to a business or individual.
onment and/or a fine of up to USD250,000 for Such an investigation could lead to debarment
each offence committed by an individual. Corpo- from contracting with the US government or
rations may be punished by fines of up to USD2 international financial institutions, loss of impor-
million per violation.
396 CHAMBERS.COM
tant regulatory statuses under US law, and/or maintain an adequate system of internal controls
termination of commercial relationships. and accurate books and records).
5.2 Guidelines Applicable to the 6.2 Regulation of Lobbying Activities

Assessment of Penalties The national legislation obligates firms and
As previously noted, the Justice Manual, FCPA individuals across industry sectors to disclose
Resource Guide, and other publications provide efforts to influence public officials. There are two
important guidance on how agencies assess key statutes that concern domestic and foreign
penalties. lobbying activities.
The US Sentencing Commission Guidelines The Lobbying Disclosure Act (LDA) is codified at
(USSG) review a number of factors that may 2 U.S.C Sections 1601 et seq. The LDA defines
warrant enhanced or mitigated sentences. For a “lobbyist” as an individual who spends more
example, the greater the monetary loss caused than 20% of their time each quarter on “lobbying
by a corrupt scheme, the more severe the rec- activities”, which encompass communications
ommended sentence will be. Generally speak- that seek to influence federal legislation, regula-
ing, bribery and other white-collar crimes do tion, administration, and nomination processes.
not have mandatory minimum sentences, but It does not apply to media organisations. The
repeated offences would be more severely pun- LDA requires lobbying entities to register and
ished. provide quarterly reports on lobbying activi-
ties. The Clerk of the House and Secretary of
The USSG permit courts to reduce criminal pen- the Senate administer the law. The penalties
alties where a company has an effective compli- include fines of up to USD200,000 per violation
ance programme; the DOJ often uses the USSG and, in some cases, up to five years in prison.
as a baseline to assess penalties in corporate Since 1995, the Secretary of the Senate has
resolutions. Chapter 8 of the USSG provides referred 24,500 cases of non-compliance to the
guidelines for sentencing organisations that US Attorney for the District of Columbia, which
have been convicted of a crime. This chapter enforces the law.
establishes the elements of an “effective” com-
pliance programme; companies with such pro- In turn, the Foreign Agent Registration Act
grammes may be eligible for substantial reduc- (FARA) is codified at 22 U.S.C. Section 611
tions from the sentence that the USSG would et seq. FARA defines a “foreign agent” as an
otherwise recommend. individual who, on behalf of a “foreign princi-
pal”, engages in political activities, acts in a
public relations capacity, solicits or dispenses
6. Compliance and Disclosure anything of value, or provides representation
before any US government agency or official.
6.1 National Legislation and Duties to A “foreign principal” is a foreign government or
Prevent Corruption political party, a person outside the US (unless
The national legislation does not establish an a US national), or group of persons organised
affirmative duty to prevent corruption (although, under the law of or having its principal place of
as noted elsewhere, US “issuers” are required to business in a foreign country. It does not apply
397 CHAMBERS.COM
to certain religious entities, academic groups, and their affiliates from retaliation for reporting
and legal representatives in legal proceedings. alleged mail, wire, bank or securities fraud and
Foreign agents must register with the Attorney related violations.
General within ten days of starting their activi-
ties, even if there is no monetary compensa- The details of a permissible whistle-blower pro-
tion for their work, and they must comply with tection claim (such as the statute of limitations)
semi-annual reporting obligations. The penalties vary from one statute to another. For example,
include fines of up to USD250,000 for each vio- SOX requires an employee to file a written com-
lation and up to five years in prison. plaint within 180 days after an alleged retaliation,
while the Dodd-Frank Act permits claims for up
6.3 Disclosure of Violations of Anti- to ten years.
In general, there is no such duty to disclose 6.5 Incentives for Whistle-Blowers
these violations, in US law. Depending on the The SEC and CFTC have programmes to pay
specifics of a particular violation, however, US monetary awards to whistle-blowers who vol-
individuals and/or companies may be exposed untarily provide original information about a
to liability for failing to disclose the violations violation of relevant laws (including bribery or
(eg, if a violation exposes a US securities issuer corruption-related offences) that leads to a suc-
to “material” risks, the issuer may face civil or cessful enforcement action. Whistle-blowers
criminal liability for failing to disclose the risk to may be entitled to an award if the agency recov-
its shareholders). ers a monetary sanction over USD1 million. The
SEC and CFTC are required to give all entitled
As discussed elsewhere, disclosure and co- whistle-blowers an award of at least 10% and as
operation with a subsequent government inves- much as 30% of the penalties collected in the
tigation often helps a company or individual enforcement action.
reduce a potential penalty.
Likewise, a whistle-blower who files a civil action
6.4 Protection Afforded to Whistle- under the False Claims Act or similar state laws
Blowers alleging false representations in connection with
The US has an extensive body of law regard- a government-funded programme may be enti-
ing whistle-blowing. Broadly speaking, US law tled to receive a substantial award based on the
generally protects whistle-blowers from retalia- damages suffered by the relevant government
tory action taken against them for reporting their agency. These suits may involve corruption-
reasonable belief of a possible violation of many related allegations (eg, that a government con-
federal or state laws, including violations of fed- tract was awarded based on a false representa-
eral securities or commodities laws or other tion that the contractor was not affiliated with
types of violations covered. The scope of pro- any public officials). The state or federal gov-
tected whistle-blower activity varies, depending ernment generally has the option to intervene
on the setting and US jurisdiction. in these actions, but the suits may proceed to
judgment without any such intervention.
For example, the Sarbanes-Oxley Act (SOX) pro-
tects employees of publicly traded companies
398 CHAMBERS.COM
6.6 Location of Relevant Provisions ics agencies, inspectors general, election regu-
Regarding Whistle-Blowing lators, etc.
The list below details the key statutory whistle-
blowing provisions at the federal level, along 7.2 Enforcement Body
with citations. There are multiple anti-bribery and anti-corrup-
tion enforcement bodies in the US.
• Sarbanes-Oxley (SOX) Act (principally 18
U.S.C. Section 1514). The DOJ is the most prominent criminal author-
• Dodd-Frank Wall Street Reform and Consum- ity and generally prosecutes all federal crimes,
er Protection Act (7 U.S.C. Section 26). including violations of the FCPA and domestic
• SEC Whistleblower Statute (15 U.S.C. Sec- anti-bribery statutes. State prosecutors or attor-
tion 78u-6). neys general may also have authority to pros-
• SEC Whistleblower Rules (17 C.F.R. Section ecute criminal violations of state anti-bribery
240.21F). or anti-corruption laws. The DOJ’s “piling on”
• CFTC Whistleblower Rules (17 C.F.R. Section policy, announced in May 2018, instructs DOJ
165 et seq). employees to co-ordinate with one another and
• Federal False Claims Act (31 U.S.C. Sections with other domestic and foreign authorities to
3729–3733). avoid “a risk of repeated punishments that may
exceed what is necessary to rectify the harm and
For further detail, the websites for the SEC and deter future violations”.
CFTC whistle-blower programmes are: https://
www.sec.gov/whistleblower (SEC) and https:// The SEC, which is generally charged with admin-
www.whistleblower.gov/ (CFTC). istering federal securities laws, civilly enforces
violations of the FCPA involving US securities
issuers. The CFTC (the federal commodities
7. Enforcement regulator) has also claimed authority to take
civil enforcement actions based on foreign cor-
7.1 Enforcement of Anti-bribery and Anti- ruption impacting US commodities markets and
corruption Laws entities trading on those markets.
There is no US federal government agency
tasked exclusively with enforcing anti-bribery Domestic anti-bribery and anti-corruption laws
and anti-corruption laws, although a variety of are civilly administered by a wide variety of agen-
federal agencies share authority over various cies and authorities. For example, at the federal
aspects of US anti-corruption issues. level, the Department of Justice’s civil division
may civilly enforce aspects of federal ethics laws
State and local governments may have spe- (eg, the Ethics in Government Act). The Office of
cific anti-bribery and anti-corruption agencies, Special Counsel and the Office of Government
although most state anti-corruption efforts reflect Ethics, as well as agency- or branch-specific
the federal approach, with criminal enforcement ethics bodies, also play a role in formulating,
given to prosecutors and broader oversight and/ administering, and enforcing anti-corruption
or civil enforcement powers granted to state eth- laws and regulations. Generally speaking, states
399 CHAMBERS.COM
have similar bodies that govern state governments: non-prosecution agreements (NPAs),
ment functions. deferred prosecution agreements (DPAs), and
plea or settlement agreements.
There are other civil enforcement agencies that,
although not specifically charged with enforcing • NPAs: in NPAs, the agency agrees not to
anti-corruption or anti-bribery laws, have author- prosecute on the condition that the individual
ity over related areas of law that anti-corruption or company will co-operate with the agency
practitioners may wish to note. For example, the in its investigations of other individuals or
Federal Election Commission pursues civil pen- entities and abide by other conditions (fines,
alties against corporations that donate to politi- monitorships, etc).
cal campaigns in violation of federal campaign • DPAs: the agency defers filing charges,
finance laws. sometimes indefinitely, based on the defend-
ant’s compliance with certain conditions.
7.3 Process of Application for Importantly, neither DPAs nor NPAs require a
Documentation defendant to admit wrongdoing. This can be
The process of self-disclosure and/or apply- an important point, as it may affect a defend-
ing for co-operation credit is likely to be highly ant’s potential civil liability to private parties.
fact-specific and varies from one agency to • Plea/settlement agreements: the agency files
another. Reporting violations of the FCPA to the charges and reaches an agreement with the
DOJ or SEC, for example, may involve a writ- defendant to end the enforcement action after
ten or oral outreach to the relevant personnel it has already begun. As part of these agree-
at DOJ or SEC Enforcement Division following ments, the agency may agree to dismiss one
an internal investigation. Ongoing co-operation or more of the charges, which often reduces
may require providing documents or witnesses the penalty the defendant will face.
to the enforcement agency, making presenta-
tions to the enforcement agency, and providing State and federal criminal prosecutors all have
estimates of the scheme’s impact (eg, the com- the authority to enter into plea agreements.
pany’s gains or losses arising from a corruption DPAs and NPAs are available at the federal level
scheme). and may be available in some states, depend-
ing on local laws and the powers of the relevant
7.4 Discretion for Mitigation agency. Regardless of the precise form, negoti-
As discussed above, US authorities have exten- ated resolutions are extremely common in most,
sive discretion to grant defendants credit for if not all, US enforcement contexts. Negotiated
self-reporting and other forms of co-operation, resolutions (especially corporate resolutions)
up to and including declining to bring enforce- often include features such as:
ment actions entirely.
• a fixed term of years during which the
US enforcement agencies also have discretion defendant must comply with the terms of the
to resolve violations of law through negotiated agreement or risk the government pursuing a
agreements. These agreements account for the formal action;
vast majority of criminal resolutions in the US. • monetary penalties;
There are three main types of negotiated agree-
400 CHAMBERS.COM
• obligations to cease ongoing violations, only take civil enforcement actions based on
remediate harm caused to victims, and conduct affecting US securities issuers or their
improve internal processes to prevent future personnel, the CFTC can only civilly enforce
violations; laws relating to US commodities markets, and
• reporting requirements (eg, the company the DOJ can enforce criminal violations affecting
must report any violations of law or the nego- either securities or commodities markets.
tiated resolution directly to the enforcement
agency); and 7.6 Recent Landmark Investigations or
• often, compliance monitors, who are appoint- Decisions involving Bribery or Corruption
ed as neutral third parties to oversee the Landmark Investigations and Decisions
defendant’s compliance with the law and the Glencore
agreement, report to the government on the In May 2022, Glencore paid USD1,5 billion to
defendant’s activities, and review and audit US, UK, and Brazilian authorities to resolve
the defendant’s activities. investigations that included FCPA and market
manipulation allegations arising from more than
Plea agreements are used in criminal cases and USD100 million in payments to foreign officials
require the defendant to acknowledge guilt. in various African and Latin American countries.
Pleas must be approved by a judge and result As part of the US resolution, Glencore agreed to
in the entry of a conviction against the defend- a three-year compliance monitor in connection
ant. In practice, courts rarely modify or reject with the FCPA resolution and a separate three-
plea agreements proposed by the parties, but it year compliance monitor in connection with the
is possible for them to do so. market manipulation resolution.
Civil regulators like the SEC use settlement Credit Suisse

agreements to the same effect. A settlement In October 2021, Credit Suisse paid USD475 mil-
agreement does not necessarily require an lion to US and UK authorities to resolve investi-
admission of liability or wrongdoing (although gations that included FCPA, securities fraud, and
the regulator may demand one). Nor does a wire fraud allegations arising from USD2 billion
settlement agreement necessarily need to be in loans to state-backed tuna fishing ventures
approved by a court or automatically result in in Mozambique. As part of the US resolution, a
the entry of a judgment against the defendant Credit Suisse subsidiary pleaded guilty in fed-
in the same way that a plea agreement results eral court to criminal conspiracy to commit wire
in a conviction. fraud. In addition, as part of the UK resolution,
Credit Suisse agreed to provide USD200 million
7.5 Jurisdictional Reach of the Body/ in debt forgiveness to Mozambique.
Bodies
See 3.2 Geographical Reach of Applicable Hoskins
Legislation. US enforcement agencies’ jurisdic- In a landmark decision in 2018, the Second Cir-
tion generally reaches as far as the statutes they cuit held that former Alstom executive Lawrence
enforce. Civil regulators’ subject-matter jurisdic- Hoskins (a UK national formally employed by a
tion is generally more circumscribed than that of British Alstom entity and working for a French
criminal authorities. For example, the SEC can subsidiary of Alstom) could not be convicted
401 CHAMBERS.COM
for violating the FCPA based on conspiracy or property or defrauded the federal govern-
aiding and abetting theories, but could be liable ment; and
if he acted as an agent of a US domestic con- • a pending Supreme Court review of a case
cern. The case proceeded to trial, where a jury involving the conviction of a top aide to the
convicted him of violating the FCPA. In Febru- former Governor of New York following that
ary 2020, however, a US District Judge granted aide’s conviction for taking bribes while he
Hoskins’ motion for acquittal as to the FCPA was working for the former governor’s office
counts, concluding that he had not acted as and re-election campaign.
an agent of Alstom’s US subsidiary. The court
upheld Hoskins’ conviction on related money- Enforcement Trends
laundering counts, sentencing him to 15 months The 2021 annual report of the DOJ’s Fraud Sec-
in prison and a USD30,000 fine. In August 2022, tion states that the FCPA Unit charged 26 indi-
the Second Circuit affirmed the district court viduals in 2021, 19 of whom were convicted by
decision to acquit on the FCPA counts. guilty plea or after trial; in the same year, the
FCPA Unit at the Fraud Section reached three
Coburn & Schwartz corporate resolutions involving the imposition of
Two former executives at Cognizant Technology USD649 million in fines, penalties, and forfeiture.
Solutions Corporation were charged in 2019 with
conspiring to bribe a government official in India 7.7 Level of Sanctions Imposed
to secure a construction permit for a planned FCPA resolutions have included some of the big-
office campus there. In February 2020, a federal gest monetary penalties in US criminal or regula-
district court determined that individual commu- tory history. Many penalties have reached into
nications, not corrupt payments or quid pro quo the hundreds of millions of dollars.
agreements, are the appropriate “unit of pros-
ecution” under the FCPA (ie, a defendant may Individuals, too, can pay a substantial monetary
be charged with a separate count of violating fine or serve prison sentences for bribery or cor-
the FCPA for each email/communication sent in ruption schemes. Typical prison terms for these
furtherance of a corrupt scheme). A jury trial is crimes are often less than ten years but have
currently scheduled for March 2023 in the case. ranged as high as 15 years for an FCPA violation
and longer for domestic statutes.
Domestic Corruption Statutes
There have also been a few high-profile develop-
ments involving domestic corruption statutes in 8. Review
recent years, including:
8.1 Assessment of the Applicable
• a Supreme Court opinion in the “Bridgegate” Enforced Legislation
case, concluding that state officials who Anti-bribery and corruption enforcement in the
made a regulatory decision for a political USA is routinely subject to assessment by the
purpose could not be prosecuted for violating US government itself, as well as civil society
18 U.S.C. Section 666 or 1343 unless they organisations and international institutions.
had actually converted federal government
402 CHAMBERS.COM
OECD Evaluation ery cases and encourage public contracting

In November 2020, the OECD released an updat- authorities responsible for those granting arms
ed evaluation of US anti-bribery and corruption export licences to implement reviews of debar-
enforcement – the first such update since 2012. ment lists of multilateral financial institutions.
The OECD generally commended the USA’s anti-
bribery and corruption programmes, noting its The European Court of Human Rights and
ability to “conclude foreign bribery matters com- GRECO
prehensively with effective, proportionate, and In April 2021, the Council of Europe Directorate
dissuasive sanctions, while also providing legal General Human Rights and Rule of Law Cor-
certainty to the companies involved”, but also ruption – Group of States Against Corruption
included a few potential future improvements. (GRECO) issued a report assessing anti-corrup-
tion laws and practices in the USA. The report
Among the USA’s strengths, the OECD stated noted areas where the USA had made progress
that US enforcement authorities have increas- since previous evaluations, but identified addi-
ingly addressed the “demand side” of bribery by tional points for improvement. For example, it
charging foreign public officials and their asso- recommended additional protections against
ciates with money laundering or other offences undisclosed conflicts of interest for congres-
when they use US financial institutions in cor- sional representatives.
rupt schemes or otherwise fall under US juris-
diction. The OECD positively noted other poli- 8.2 Likely Changes to the Applicable
cies and trends in anti-bribery prevention and Legislation of the Enforcement Body
enforcement, including the US commitment to US government authorities frequently revise
co-ordinating multi-jurisdictional investigations enforcement policies and priorities. Significant-
with agencies in other countries. ly, in September 2022, Deputy Attorney General
Lisa Monaco emphasised that the DOJ’s “num-
While the OECD’s report was largely positive, it ber one priority is individual accountability” and
nonetheless provided recommendations in three explained that DOJ expects companies to vol-
key areas. untarily self-disclose and timely produce docu-
ments related to all involved individuals during
• Detection of foreign bribery – the OECD rec- investigations. At the same time, Monaco issued
ommended that the USA: a memorandum that describes new corporate
(a) report on the sources of allegations lead- criminal enforcement policies, including stream-
ing to foreign bribery investigations; and lined guidance regarding credit for companies
(b) enhance protections for whistle-blowers. that voluntarily disclose, co-operate with author-
• Investigation and prosecution of foreign brib- ities, and remediate misconduct. The memoran-
ery – the OECD recommended that the DOJ dum provides further guidance on how the DOJ
and SEC continue to harmonise their enforce- will evaluate a company’s history of misconduct,
ment approaches and review the effective- a company’s internal compliance programmes,
ness of the DOJ’s Corporate Enforcement and the application of external monitors during
Policy. future criminal resolutions. These policies will
• Sanctions – the OECD recommended that the enhance, but not substantially alter, the scope
USA collect data on debarment in foreign brib- and practice of federal anti-corruption laws.
403 CHAMBERS.COM
Freshfields Bruckhaus Deringer LLP has a in connection with allegations of bribery and
white-collar defence team that is highly skilled in corruption. Freshfields lawyers develop multi-
advising cross-border businesses on anti-brib- pronged defence strategies to navigate the
ery and corruption risks arising anywhere in the varied expectations of regulators around the
world. The firm’s US white-collar partners, most globe. The firm regularly conducts international
of whom are former federal prosecutors, lead anti-bribery compliance programme reviews
a team with more than 75 US lawyers working and provides due diligence and transactional
in close co-ordination with Freshfields offices in advice for some of the world’s leading inves-
Europe, the Middle East, and Asia. Freshfields tors, banks, and multi-nationals. Recent anti-
helps clients respond to simultaneous inquiries corruption work has included securing the first
from the US DOJ, the US SEC and CFTC, the declination with disgorgement under the DOJ’s
UK Serious Fraud Office, and other regulators, Corporate Enforcement Policy.
Authors
Eric Bruce is the US head of Justin Simeone is an associate
disputes, litigation and in Freshfields’ Washington, DC,
arbitration, and global office. Justin represents
investigations at Freshfields. He individuals and corporations in
represents boards of directors, white-collar defence, regulatory
multi-national corporations, and investigations, and civil litigation
individual executives in complex white-collar matters, including those relating to foreign
criminal defence matters and corporate corruption, securities fraud, cryptocurrency
investigations. Eric is one of the relatively few regulation, and data privacy. Justin also
lawyers in the USA who has tried an FCPA advises on cross-border corruption and fraud
case to verdict and succeeded in getting all investigations involving multi-lateral
charges against his client dismissed. Eric development banks. Prior to joining
previously served in the US Department of Freshfields, Justin served as a Scholar in
Justice as Counsellor to the Attorney General Residence at New York University School of
and Senior Counsel to the Assistant Attorney Law, an Extern in the Office of the Legal
General for the Criminal Division. Eric also Adviser at the US Department of State, and a
spent more than ten years as a prosecutor in Short-Term Consultant for the World Bank and
the US Attorney’s Office for the Southern International Labour Organization.
District of New York.
404 CHAMBERS.COM
Freshfields Bruckhaus Deringer

LLP
700 13th Street
NW
10th Floor
Washington
DC 20005-3960
USA
Tel: +1 202 777 4577

Email: Eric.Bruce@Freshfields.com
Web: www.Freshfields.com
405 CHAMBERS.COM
USA Trends and Developments

Contributed by:
Andrew St. Laurent
Harris St. Laurent & Wechsler LLP see p.411
Last year, we predicted an increase in corpo- ly robust Foreign Corrupt Practices Act (FCPA)
rate enforcement with the beginning of the Biden settlements and prosecutions, the DOJ and
administration. the SEC are looking at reporting their second
consecutive down year for FCPA cases. Finally,
However, while Biden administration officials the Supreme Court seems likely to continue its
have continued to emphasise the centrality push-back against the expansion of theories of
of anti-corruption efforts, the total number of prosecution in governmental corruption cases.
white-collar prosecutions remains sharply down
compared to ten or even five years ago, with Trends to Watch
fraud in federal programmes remaining the larg- The statute of limitations for prosecutions
est source of federal white-collar crime pros- under the Coronavirus Aid, Relief, and
ecutions. The total number of federal criminal Economic Security (CARES) Act has been
prosecutions is slightly down as well. significantly lengthened
Many observers last year anticipated a wave of
As described below, part of this decline may prosecutions for fraud committed in connection
stem from investigators and prosecutors taking with applications under the 2020 CARES Act,
advantage of new, extended, statute of limita- and in particular for government aid granted
tions periods for certain types of fraud, including under the Paycheck Protection Program. The
fraud in loan applications under the Paycheck latter offered forgivable loans to small busi-
Protection Program. The effects of the coro- nesses and certain larger businesses for up
navirus pandemic also continue to echo in the to eight weeks of payroll expenses, so long as
financial industry, with the SEC collecting bil- employees were not laid off during that same
lions of dollars in fines against major banks in period. The Economic Injury Disaster Loan Pro-
connection with the use of personal devices by gram allowed businesses to receive emergency
employees. loans to meet daily business operation goals.
These two programmes collectively provided
In other developments, regulators have also more than a trillion USD in relief, primarily to
aggressively moved into new areas of enforce- small businesses and their creditors.
ment, particularly cryptocurrencies. The Depart-
ment of Justice (DOJ) has expanded on its previ- Safe to say, those prosecutions, at least on the
ous approaches to corporate responsibility, with scale anticipated, have not materialised. While
an emphasis on criminal liability for individuals some estimates put fraud in connection with
and swift reporting by affected corporations. these programmes at more than USD30 billion,
The Internal Revenue Service (IRS) received a prosecutions have been, at least in comparison
substantial increase in its budget for enforce- to the potential losses, relatively limited. The
ment, with a likely focus on audits of high net extension of the statute of limitations presages
worth individuals. After several years of relative- a significantly ramped-up prosecution effort,
406 CHAMBERS.COM
Contributed by: Andrew St. Laurent, Harris St. Laurent & Wechsler LLP
with a likely focus on fintech, the source of much The SEC moves aggressively into regulation
of the fraud in these programmes, particularly of cryptocurrency, joining other regulators
those involving non-bank lenders. In 2022 US government regulators were active
in the fast-developing cryptocurrency markets.
SEC imposes USD1 billion in fines as part of
personal devices investigations The SEC moved aggressively into enforcement
While the SEC moved into new areas of regula- actions against both issuers and individuals in
tion in 2022 (as described below), it also took the cryptocurrency space, notwithstanding sub-
major actions in its traditional enforcement are- stantial questions about its jurisdiction, which
as. In one of the broadest-reaching and most defendants were quick to challenge. In SEC v
significant regulatory acts of 2022, it engaged Ripple, the issuer had used the statements of a
in an effective sweep of major Wall Street banks former SEC official to question whether the cryp-
and their compliance with SEC rules regarding tocurrency at issue, XRP, is a security that falls
the use of personal devices. within SEC jurisdiction. In another case, SEC
v Wahi, the SEC further expanded its jurisdic-
Long an area of irregular enforcement, the SEC’s tional reach, asserting that nine different crypto-
prohibition against the use of unmonitored per- currencies were in fact unregistered securities.
sonal communication devices and electronic Significantly, the SEC has not, or at least not
communication services was thrust into centre yet, brought actions against any of the issuers of
stage in 2022. Because employees typically do those alleged securities or the platform on which
not back up such communications, these com- they were traded, Coinbase.
munications can violate SEC record-keeping
requirements. During the coronavirus pandemic, Unsurprisingly, these actions have roiled the
work from home made it more challenging for cryptocurrency market. They have also drawn
broker-dealers to keep up with communica- criticism not only from the crypto community but
tions by their employees, not only with the use from other regulators. Commodity Futures Trad-
of personal devices but with the numerous chat ing Commission (CFTC) Commissioner Caroline
and social media platforms available. After many D Pham sharply criticised the SEC’s action in
months of internal investigations, and sanctions SEC v Wahi, calling it “regulation by enforce-
against individual employees for violations of ment”, stating that “[m]ajor questions are best
bank policies, 15 different broker dealers and addressed through a transparent process that
one registered investment adviser, including engages the public to develop appropriate poli-
many of Wall Street’s biggest names – Gold- cy with expert input – through notice-and-com-
man Sachs, Morgan Stanley, Barclays, Jefferies, ment rule-making pursuant to the Administrative
Nomura – settled with the SEC, acknowledging Procedure Act”.
the violations, committing to improved policies,
and paying fines collectively in excess of USD1 In considerably less-disputed exercises of
billion. authority, the CFTC continued its active engage-
ment in the crypto space, imposing more than
USD2,5 billion in fines as part of 82 differ-
ent investigations in FY 2022, with cryptocur-
rency investigations representing more than
407 CHAMBERS.COM
20% of its enforcement actions. The CFTC has criminal liability, while at the same time trying to
brought actions against large crypto brokerage provide incentives for corporations to self-report
platforms, such as Gemini, and against novel soon after discovering potential problems.
crypto-derived entities, like the Ooki Distributed
Autonomous Organization (DAO). On 15 September 2022, Monaco announced
revisions to the DOJ’s corporate criminal
The CFTC may ultimately prevail in this regu- enforcement policies that seek to put pressure
latory turf war, with the Responsible Financial on companies to implement effective compli-
Innovation Act (RFIA) currently under consid- ance policies and to self-report if there are indi-
eration in Congress. While the bill would define cations of criminal activity. The key points are
as “securities” under the ‘33 and the ‘34 act laid out below.
cryptocurrencies that provide certain equity- or
bond-like rights to their holders, the CFTC would • Corporations must identify individuals quickly:
be the primary regulator for both “digital assets” Monaco noted that corporations must dis-
and “digital asset exchanges”. close “all relevant, non-privileged facts and
evidence about individual misconduct” in
The DOJ brought its first actions in the cryp- a timely fashion, particularly if corporations
tocurrency space in 2022, indicting a former want to receive co-operation credit. Addition-
employee of Ozone Networks, the owner of the ally, the DOJ now will “require co-operating
Open Sea NFT exchange platform in June 2022 companies to come forward with important
and a former Coinbase employee and two oth- evidence” to prosecutors “more quickly”.
ers in July 2022. However, unlike the SEC, the Thus, she emphasised that “if a co-operating
DOJ did not rely on statutes that on their face company discovers hot documents or evi-
require the digital assets at issue to satisfy the dence [during a government investigation], its
requirements of a security or commodity, and first reaction should be to notify the prosecu-
instead relied on “misappropriation theory” for tors”.
wire fraud. While this theory is not without its • Clear benefits to aggressive corporate dis-
issues, insofar as there are real questions about closure: As explained by Principal Associate
whether the information allegedly misappropri- Deputy Attorney General Marshall Miller on 20
ated was either “confidential” or “property” as September 2022, “[E]very Justice Department
the law requires, this represents a significantly component that prosecutes corporate crime
more measured approach than the SEC’s. cases, including the US attorney community,
will now have a voluntary self-disclosure
Corporate prosecutions continue to policy that defines its terms and identifies its
emphasise personal responsibility rewards... any company that self-discloses
In 2021, Deputy Attorney General Lisa Monaco promptly will not be required to enter a guilty
announced that the DOJ was revising its pol- plea – absent aggravating factors – and will
icy on prosecuting corporate entities, signal- not be assessed a monitor, if it has remedi-
ling a focus on corporate criminal liability and ated, implemented and tested an effective
individual accountability. While continuing this compliance programme”.
message in 2022, the DOJ’s latest announce- • Updated compliance policies relating to
ment expands on the importance of individual, personal devices and social media: Compa-
408 CHAMBERS.COM
nies must implement “effective policies and IRS enforcement receives substantial budget
procedures governing the use of personal increases
devices and third-party messaging platforms After numerous previous attempts, in August of
to ensure that business-related electronic 2022, the IRS finally received a long-promised
data and communications are preserved”. increase to its enforcement budget as part of
This can affect co-operation credit. the Inflation Reduction Act. An additional USD80
• Corporate track record: Moderating previous billion over ten years has been slated, to the
statements from the Biden administration end of recapturing an estimated USD600 billion
about the importance of past misconduct, in annual evaded taxes. Practitioners should
the DOJ has indicated that less emphasis expect significantly closer scrutiny of personal
will be placed against a history of regulatory tax returns of high net worth individuals. Tax
sanctions that are more than ten years old or, enforcement has, however, become an increas-
in highly regulated industries, typical in that ingly partisan issue in recent years and it is cer-
industry. However, the DOJ will continue to tainly possible that this change in enforcement
“disfavour multiple, successive non-prose- will not survive a change in administration.
cution or deferred prosecution agreements
with the same company” when deciding how FCPA prosecutions continue to decline
to resolve an investigation. That said, the The FCPA is prosecuted by the DOJ and SEC
updated guidance emphasises that this policy to prevent US companies and individuals from
should not disincentivise corporations that engaging in corruption of foreign government
have been the subject of prior resolutions officials to advance their interests. Applying to
from voluntary and timely self-disclosures of issuers of securities on US exchanges (including
current or prior conduct. ADRs) and US-based persons and companies,
the FCPA contains anti-bribery sections, typi-
How this plays out in practice remains to be cally enforced by the DOJ, and accounting and
seen. Self-reporting criminal acts by employees record-keeping provisions applicable to issuers
is not required by law in the US. Further, com- of US securities, typically enforced by the SEC.
pany counsel can generally invoke the attorney-
client privilege to shield decision-making on After several years of relatively robust enforce-
such issues, sparing companies from a poten- ment in 2018, 2019, and 2020, with 39, 54, and
tially embarrassing revelation about a decision 35 combined DOJ/SEC actions in each of those
not to report. As a result, these decisions are respective years, there were 15 such actions in
generally driven by business considerations, 2021 and 14 in the first eight months of 2022.
with the potential of a reduced punishment fol- While the number of publicly filed enforcement
lowing a self-report weighed against expense, actions is not an exact proxy of enforcement
public relations consequences, and other diffi- efforts, and the DOJ in January 2022 reported
culties associated with notifying the government a “very robust pipeline” of enforcement actions,
of activity that may never otherwise come under the slowdown in such actions seems to have
scrutiny. established itself as a trend.
409 CHAMBERS.COM
Supreme Court likely to trim back time of the relevant conduct, had defrauded New
prosecutorial expansion of “right to control” York residents of the “right to honest services”
and “honest services” fraud prosecutions by accepting money to lobby state officials on
In 2020, a unanimous Supreme Court decision the terms of a contract. Both of these theories
vacated fraud convictions arising from actions will now come under review by a Supreme Court
by New Jersey government officials to cause that has been sceptical of the use of fraud theo-
traffic delays to punish a political opponent in ries in public corruption cases.
Kelly v United States (known as “Bridgegate”)
because the defendants had not obtained or Conclusion
tried to obtain “property”, at least not in any The year 2022 saw several changes to the regu-
recognisable form. latory and enforcement environment for white
collar investigations and enforcement actions,
While no decision has yet been issued, it looks and 2023 promises more of the same.
likely that the US Supreme Court will continue
to trim back aggressive criminal prosecution of While market participants have expected more
public corruption by limiting other expansive aggressive enforcement efforts across the board
legal theories under which the government has from the Biden administration, that expectation
brought public corruption charges. In the “Buf- has by and large not been met, with US govern-
falo Billion” cases, prosecutors had advanced ment regulators pursuing a relatively small hand-
two relatively novel legal theories: first, that by ful of high-profile actions, while at the same time
depriving state officials of key information in a deferring (as in the CARES Act prosecutions) or
“request for proposal” process, defendants had reducing (as in the FCPA context) criminal pros-
defrauded those officials of the “right to control” ecutions.
the relevant information; and second, that anoth-
er defendant, although a private citizen at the
410 CHAMBERS.COM
Harris St. Laurent & Wechsler LLP is a boutique tions with employment retention and separation
litigation firm based in New York City. Harris St. that often proceed simultaneously with a crimi-
Laurent & Wechsler LLP (HSW) represents de- nal or regulatory investigation. Investigations
fendants in New York federal criminal, SEC, and criminal cases also impose a severe finan-
CFTC and Financial Industry Regulatory Author- cial burden on clients, and the firm places em-
ity (FINRA) investigations. The half-dozen HSW phasis on, and has regularly been successful at,
attorneys active in white-collar criminal and obtaining advancement and indemnification of
regulatory defence draw upon the firm’s deep legal fees from employers and former employ-
experience representing individuals in employers, as well as insurance coverage. HSW also
ment and commercial litigation in the financial helps clients protect professional licences and
sector. The firm’s plaintiffs’ side employment their standing within their industries.
practice stands ready to assist with negotia-
Author
Andrew St. Laurent is a
Chambers-ranked lawyer in the
area of litigation: white-collar
crime and government
investigations. After beginning
his career at leading white-collar
criminal defence firm Morvillo, Abramowitz,
Grand, Iason & Anello, PC, he worked for five
years as a public defender in Manhattan before
joining HSW in 2009. He regularly represents
individuals in high-stakes white-collar criminal
and regulatory matters.
Harris St. Laurent & Wechsler LLP

40 Wall Street
53rd Floor
New York
NY 10005
USA
Tel: +646 248 6010

Fax: +212 202 6206
Email: andrew@hs-law.com
Web: www.hs-law.com
411 CHAMBERS.COM
CHAMBERS GLOBAL PRACTICE GUIDES
Chambers Global Practice Guides bring you up-to-date, expert legal

commentary on the main practice areas from around the globe.
Focusing on the practical legal issues affecting businesses, the
guides enable readers to compare legislation and procedure and
read trend forecasts from legal experts from across key jurisdictions.
To find out more information about how we select contributors,

email Katie.Burrington@chambers.com
practiceguides.chambers.com

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CHAMBERS GLOBAL PRACTICE GUIDES

Bougartchev Moyne Associés AARPI

Disclaimer: The information in this guide is provided for general reference

GPG Director Katie Burrington

Anti-corruption: the Global Picture

• strengthen the enforcement of foreign bribery The Transparency International 2022

tion) were opened in the five EU member states Conclusion

Bougartchev Moyne Associés

Tessa Trend and William Stefanidis

1. Legal Framework for Offences offence at common law is constituted by the

(CDPP) in relation to Commonwealth offences, Significant reforms to Australia’s whistle-blower

Corresponding offences apply to the receipt by Private Sector Bribery

It is expected that this proposed new offence 2.3 Financial Record-Keeping

or required by a written law of the place where 4.4 Exempt Sectors/Industries

6.1 National Legislation and Duties to Corporate Crime Bill

6.4 Protection Afforded to Whistle- ised whistle-blowers to claim compensation and

However, search warrant powers are available to

Subpoenas Self-Reporting of Foreign Bribery

Proposed Federal Anti-Corruption • removing the requirement that the foreign

Tessa Trend is a senior William Stefanidis is a senior

Tel: +61 2 9353 4000

Law and Practice Germany

1. Legal Framework for Offences the protection of the European Communities’

4. Defences and Exceptions 4.2 Exceptions

General grounds under criminal law aimed at 4.4 Exempt Sectors/Industries

Active Repentance penalty will be substantially below the minimum

5.2 Guidelines Applicable to the 6. Compliance and Disclosure

6.4 Protection Afforded to Whistle- 7. Enforcement

7.4 Discretion for Mitigation 8. Review

In general, the COVID-19 pandemic has not had

Tel: +43 1 53553 1000

1. Legal Framework for Offences federal Department of Justice published The

2.1 Bribery Bribery of Domestic Public Officials

To qualify as an offence: limit the scope of these terms by evaluating on

Bribery Between Private Parties in a or risk of prejudice to the economic interests of

Self-reporting, co-operation with an investiga- In addition, corporations convicted of a CFPOA

In accordance with the principles of sentencing, 6.2 Regulation of Lobbying Activities

7. Enforcement tion of guilty pleas (which are subject to court

Jamieson Virgin is a partner in Timothy Cullen is a partner in

Tel: +1 416 865 7000

Law and Practice Paraguay

Jorge Bofill Genzsch and César Ramos Argentina

2.3 Financial Record-Keeping Articles 59 and 60 of Law No 18,045 contain

imprisonment, or ten years in the other cases; 3.3 Corporate Liability

able with imprisonment from three years tion” will be applied.

8. Review In this context, Congress is currently discuss-

Bofill Escobar Silva Abogados

Tel: +56 2 2483 9000

1. Legal Framework for Offences 1.2 National Legislation

state functionary, by taking advantage of his or transaction opportunities or competitive advan-

In addition, the Criminal Law also stipulates 6. Compliance and Disclosure

Subsequently in August 2022, the SASAC violations of anti-bribery and anti-corruption

6.3 Disclosure of Violations of Anti- 6.5 Incentives for Whistle-Blowers

Weiwei Gu is a partner at Global Jenny Chen is an of counsel at

Global Law Office

Tel: +86 21 2310 8211

Trends and Developments

Mandatory compliance programmes for ductor manufacturing in China. Perhaps the