2. Dutch
spotlight BELGIUM
Modernisation of Dutch Bribery laws adopted
The Dutch parliament has
recently adopted
legislation that will bring
the Dutch anti-bribery
statutes more in line with
international standards
such as the UK Bribery
Act, whilst simultaneously
raising maximum
penalties for bribery
offences and for
corporate defendants
generally.
The most signifi cant changes created by
the new law are in the area of private
sector bribery. To date, Dutch anti-bribery
laws have been primarily concerned with
protecting the integrity of the relationship
between employer and employee. That
perspective explains why passive private
sector bribery to date has been defi ned as
– in short – the acceptance of a gift (or
anything of value) whilst wrongfully failing
to disclose this acceptance to one’s
employer. In mirror image, active private
sector bribery is described as the offer of a
gift (or anything of value)in circumstances
that must give grounds for the giver to
believe that the recipient will wrongfully fail
to disclose it to his or her employer.
The new statute changes the defi nition of
private sector bribery to refl ect the model
that most modern anti-bribery laws adopt.
Under the new defi nition, private sector
bribery is where a private sector employee
accepts a gift (or anything of value) in
connection with an act he or she will
perform or has performed in contravention
of his or her duty. Active private sector
bribery is now defi ned as offering a gift (or
anything of value) to someone else in
connection with the performance of his or
her function/ duties, in circumstances that
must give grounds for the offeror
reasonably to assume that the recipient
acts in contravention of his or her duties.
The new act explicitly holds that wrongfully
failing to disclose the acceptance of the gift
(or thing of value) to one’s employer is by
defi nition an act in contravention of the
employee’s duty, thereby incorporating the
old statute in the new statute.
The legislature used this overhaul of
anti-bribery and corruption provisions as an
opportunity also to raise the maximum
penalties for both public and private sector
bribery, from 4 and 2 years respectively to
6 and 4 years. Penalties for related
offences, most notably money
laundering, have also been
raised.
In this respect, it is noteworthy that Dutch
criminal law is unusual in that it does not
distinguish between bodies corporate and
individuals. Both can be prosecuted and
sentenced for all criminal offences. It is
therefore important for corporates to note
that the new statute has introduced a new,
general maximum fi ne across the board for
all corporate defendants for all criminal
offences, which is set at 10% of the
corporate’s annual turnover for the year
prior to the conviction. The fi ne imposed
will depend on all the circumstances and
will be in the discretion of the court.
Two major bribery cases are making
Belgian headlines. In the fi rst case,
31 individuals, amongst whom several
managers, players and trainers formerly
active in Belgium’s premier league, were
prosecuted for active and passive bribery
as well as suspected of having fi xed several
football matches in the Belgian football
competition during the seasons 2004-2005
and 2005-2006. The criminal court of
Brussels condemned several players,
managers and trainers to fi nes and
imprisonment for bribery. The Brussels
criminal court has also recently started
hearing a case of criminal liability of 12
state employees, 35 building contractors
and 24 companies being suspected of
having participated in an organized
system of corruption almost ten years
ago. The companies won public
procurement by giving fringe benefi ts
to the state employees. The trial will
last several months.
BOSNIA AND HERZEGOVINA
Enhanced enforcement and new
confiscation legislation implemented.
In in the recent period, the Prosecutor’s
Offi ce of Bosnia and Herzegovina has
become signifi cantly more active in the
prosecution of corruption cases, and as a
result some high ranking offi cials, such as
the former Director of the Indirect Taxation
Authority of Bosnia and Herzegovina, have
been prosecuted on the basis of allegations
for corruption and abuse of power. As to
legislative developments, a new Law on
confi scation of property illegally acquired
by criminal offences will enter into force for
the Federation of Bosnia and Herzegovina
(hereinafter: “FBiH”), on March 03, 2015.
This Law regulates the conditions and
procedure for confi scation of material gain
acquired by criminal offense in FBiH, and
also regulates the procedure of managing
of temporary and permanent confi scated
property even establishing a seperate
authority for the management of such
property.
ITALY
Harsher penalties considered for
“self-laundering” in Italy. In 2014, a
number of legislative initiatives have been
put forward, both by the Italian parliament
and the Italian government, to tighten the
rules on “self-laundering”, i.e. money
laundering committed by the person that
contributed in the crime that gave rise to
the proceeds. All these initiatives provide
for stiff penalties (in some cases up to 12
years imprisonment). The proposed
amendments are the subject of intense
parliamentary debate, since they all have a
different scope. According to one proposal,
self-laundering would be limited to
investment of proceeds of crime in
economic, fi nancial or speculative activities.
According to another, penalties would be
higher if the offence is committed in
connection with a bank, fi nancial or any
other professional activity, or in the exercise
of the offi ce of director, auditor or
liquidator. A third proposal however,
excludes punishment for self-laundering of
moneys that were allocated “in order to
use them or for personal enjoyment”.
POLAND
Increased activity of the Polish Central
Anti-Bribery Bureau (CBA) and focus
on corporate criminal liability. The CBA
is conducting an increasing amount of
investigations involving bribery of public
offi cials, in particular in the IT, construction
and pharmaceutical sectors. The Head of
the CBA – Paweł Wojtunik – announced
that the CBA and the prosecutors intend to
initiate more proceedings against
companies, whose managers or employees
have been convicted of bribery. This also
includes investigating older cases where the
conviction of the manager/employee took
place even several years ago. The
companies found liable in separate criminal
proceedings based on the 2002 Act on
liability of collective entities for acts
prohibited under pain of punishment may
be obliged to return the benefi t obtained
by virtue of the crime, face fi nes of up to
circa €1,200,000, as well as other sanctions
such as debarment from bidding in public
tenders or ban on advertising. So far the
authorities seldom initiated proceedings
against corporate entities (less than 1,000
cases since 2002) but the above
announcement suggests that the situation
may soon change.
PORTUGAL
Final verdict issued in major
Portuguese corruption case. Following
more than two years of court hearings, the
Criminal Court of Aveiro issued the fi nal
verdict in a major corruption case, involving
some former members of government and
other head fi gures of Portuguese politics
and their alleged involvement in benefi tting
waste management companies, in
agreements entered between said
companies and public-held companies. The
verdict condemned all defendants either to
prison or the payment of fi nes, in great
part due to evidence collected through
phone-tapping. CMS represented two
defendants in the criminal proceedings and
is currently preparing the appeal aigainst
the verdict. The team is composed by
Joaquim Shearman de Macedo, Paulo
Trindade and Rui Real.
RUSSIA
Guidelines issued on bribery and
corruption prevention. Since 1 January
2013 organisations are under a general
statutory duty to implement measures to
prevent bribery and corruption. On 16 April
2014 the Russian Ministry of Labour and Social
Protection issued Guidelines on the
Development and Implementation of Anti-corruption
Measures These Guidelines provide
eight principles for bribery and corruption
prevention: conformity of an organisation’s
anti-corruption policy with current legislation
and generally accepted rules; top-level
commitment by setting an example; staff
involvement; proportionate anti-corruption
measures; effi ciency of anti-corruption
measures; liability and inevitability of sanctions;
business transparency; and constant control
and regular monitoring. In addition to standard
compliance measures the Guidelines describe
in detail measures mainly directed at
employees such as: introducing a Code of
professional ethics and conduct; implementing
regulations on confl icts of interest; including
anti-corruption provisions in employment
contracts and internal work regulations; and
ensuring that employees complete declarations
on any confl icts of interest. Importantly, it is a
legal requirement to have such procedures and
policies introduced so that non-compliance
can be prosecuted whether or not there is an
actual bribery offence.
UK
UK Government considering expanding
corporate bribery offence. The UK
Government, following lobbying from the
Serious Fraud Office (the lead investigator
and prosecutor of serious economic crime),
has said it is considering expanding the
scope of the corporate offence under the
Bribery Act of failing to prevent bribery, to
encompass all types of fraud. The offence
has a defence where the corporate can
demonstrate that it has in place adequate
procedures designed to prevent bribery (or,
possibly, in future fraud). If implemented,
this would have a major impact on the
concept of corporate criminal liability
generally and make it easier to prosecute
corporates when
their staff act improperly to win business.
It will also, implicitly, impose almost
regulatory-style obligations on all
businesses to implement anti-fraud
controls. There is no current timetable
for this proposal to be implemented.
CMS round-up
