Domestic bribery (private to public)
1. Legal framework In Swedish legislation there is no distinction between bribery of public officials and private bribery. There is also no distinction between bribery of foreign or domestic public officials. However, the involvement of a public official will act as an aggravating circumstance and make it more likely that a benefit is deemed a bribe. Bribery is regulated by the Swedish Penal Code, Chapter 10, Section 5 a-e. There is also some ancillary legislation that could be applicable in relation to bribery issues, such as the Marketing Act (SFS 2008:486) and the Swedish Income Tax Act (SFS 1999:1229). 2. Definition of bribery An employee or person performing an assignment who, for himself or another person, receives, accepts a promise of, or demands an improper benefit for the performance of the employment or assignment, may be deemed as taking a bribe. A person who gives, promises or offers an improper benefit in cases referred to above may, on the other hand, be viewed as giving a bribe. A benefit does not necessarily have to be aimed at, give rise to or reward improper action or be beneficial to the person who has given, promised or offered the benefit in order to be deemed improper. An improper benefit is a benefit that objectively has the potential to affect the performance of a task or be perceived as a reward for the performance of a task. In addition to the offences of taking and giving a bribe, trading in influence and negligent financing of bribery are also punishable offences related to bribery. Trading in influence involves the act of taking or giving an improper benefit in order to influence a person’s action or decision in the exercise of public authority or in public procurement. An individual acting on behalf of a company that provides money or assets used by a third party for the giving of a bribe may be found guilty of negligent financing of bribery. 3. Definition of public official The Swedish Criminal Code contains no definition of public official since there is no specific offence for bribery of public officials. However, “employee or person performing an assignment” includes, inter alia, assignments based on election, appointment, duty and agreement. 4. Consequences of bribery. (a) For the individuals involved: The Swedish Penal Code establishes the same range of penalties for the public officials as for individuals that bribe public officials. The penalties are the following:
- A fine (proportional to the income of the individual, limited to a maximum of SEK 150,000) or up to two years of imprisonment
- If deemed as a gross crime, between six months and six years of imprisonment (The non-exhaustive lists of criteria to be considered include the position of the individual, the value of the benefits, whether the bribery has been part of systematic criminal activity or criminal activity of large proportions or otherwise is of a particularly dangerous kind.)
(b) For the company/legal entity:
- Administrative fine between SEK5,000 and SEK10 million (requires that the company has not done what can be reasonably expected to prevent the bribery or that the bribery has been committed by an individual in a leading position or with special responsibility for supervision)
5. Political contributions Contributions to political parties do not have to be publicly reported and are not regulated by Swedish law. However, there have been discussions within the Swedish government that all contributions to political parties should be disclosed to the public. 6. Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, amongst others) The Penal Code does not establish quantitative or qualitative limitations on hospitality expenses. In order to assess whether a hospitality expense is considered to be a bribe whether the hospitality expense constitutes an improper benefit has to be established. The meaning of improper benefit is further described in preparatory works of the Penal Code as a benefit that objectively has the potential to affect the performance of a task or be perceived as a reward for the performance of a task. Whether a hospitality expense could be considered bribery will need to be determined on a case-by- case basis, taking into account all the facts and circumstances surrounding the case. The type of hospitality, the economic value and the position of the receiver are examples of these kinds of circumstances. Even though there is no separate legislation regarding bribery of public officials, hospitality given to public officials is more likely to be deemed improper due to the responsibility and trust associated with their position.
Domestic bribery (private to private)
1. Legal framework In Swedish legislation, there is no distinction between bribery of public officials and private bribery. There is also no distinction between bribery of foreign or domestic public officials. However, the involvement of a public official will act as an aggravating circumstance and make it more likely that a benefit will be deemed a bribe. Bribery is regulated by the Swedish Penal Code, Chapter 10, Section 5 a-e. There is also some ancillary legislation that could be applicable in relation to bribery issues, such as the Marketing Act (SFS 2008:486) and the Swedish Income Tax Act (SFS 1999:1229). 2. Definition of private bribery An employee or person performing an assignment who, for himself or herself or another person, receives, accepts a promise of, or demands an improper benefit for the performance of the employment or assignment may be deemed as taking a bribe. A person who, on the other hand, gives, promises or offers an improper benefit in cases referred to above may be viewed as giving a bribe. A benefit does not necessarily have to be aimed at, give rise to or reward improper action, or be beneficial to the person who has given, promised or offered the benefit in order to be deemed improper. An improper benefit is a benefit that objectively has the potential to affect the performance of a task or be perceived as a reward for the performance of a task. In addition to the offences of taking and giving a bribe, trading in influence and negligent financing of bribery are also punishable offences related to bribery. Trading in influence involves the act of taking or giving an improper benefit in order to influence a person’s action or decision in the exercise of public authority or in public procurement. An individual acting on behalf of a company that provides money or assets used by a third party for the giving of a bribe may be found guilty of negligent financing of bribery. 3. Consequences of private bribery (a) For the individuals involved:
- A fine (proportional to the income of the individual, limited to a maximum of SEK 150,000) or up to two years of imprisonment
- If deemed as a gross crime, between six months and six years of imprisonment (The non-exhaustive lists of criteria to be considered include the position of the individual, the value of the benefits, whether the bribery has been part of systematic criminal activity or criminal activity of large proportions or otherwise is of a particularly dangerous kind.)
(b) For the company/legal entity:
- Administrative fine between SEK5,000 and SEK10 million (requires that the company has not done what can be reasonably expected to prevent the bribery or that the bribery has been committed by an individual in a leading position or with special responsibility for supervision.)
4. Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, amongst others) The Penal Code does not establish quantitative or qualitative limitations on hospitality expenses. In order to assess whether a hospitality expense may be considered a bribe, whether the hospitality expense constitutes an improper benefit has to be established. The meaning of improper benefit is further described in preparatory works of the Penal Code as a benefit that objectively has the potential to affect the performance of a task or be perceived as a reward for the performance of a task. Whether a hospitality expense could be considered bribery will need to be determined on a case-by- case basis, taking into account all the facts and circumstances surrounding the case. The type of hospitality, the economic value and the position of the receiver are examples of these types of circumstances.
Corruption of foreign public officials
1. Legal framework In Swedish legislation, there is no distinction between bribery of public officials and private bribery. There is also no distinction between bribery of foreign or domestic public officials. However, the involvement of a public official will act as an aggravating circumstance and make it more likely that a benefit is deemed a bribe. Bribery is regulated by the Swedish Penal Code, Chapter 10, Section 5 a-e. There are also some ancillary legislation that could be applicable in relation to bribery issues, such as the Marketing Act (SFS 2008:486) and the Swedish Income Tax Act (SFS 1999:1229). 2. Definition of corruption of foreign public officials An employee or person performing an assignment who, for himself or herself or another person, receives, accepts a promise of, or demands an improper benefit for the performance of the employment or assignment, may be deemed as taking a bribe. A person who gives, promises or offers an improper benefit in in cases referred to above may be viewed as giving a bribe. A benefit does not necessarily have to be aimed at, give rise to or reward improper action or be beneficial to the person who has given, promised or offered the benefit in order to be deemed improper. An improper benefit is a benefit that objectively has the potential to affect the performance of a task or be perceived as a reward for the performance of a task. In addition to the offences of taking and giving a bribe, trading in influence and negligent financing of bribery are also punishable offences related to bribery. Trading in influence involves the act of taking or giving an improper benefit in order to influence a person’s action or decision in the exercise of public authority or in public procurement. An individual acting on behalf of a company that provides money or assets used by a third party for the giving of a bribe may be found guilty of negligent financing of bribery. 3. Definition of foreign public official The Swedish Criminal Code contains no definition of foreign public official since there is no specific offence for bribery of foreign public officials. The same rules apply to foreign and domestic public officials. 4. Consequences of corruption of foreign public officials (a) For the individuals involved: The Swedish Penal Code establishes the same penalties for foreign public officials as for individuals that bribe foreign public officials. The penalties are the following:
- A fine (proportional to the income of the individual, limited to a maximum of SEK 150,000) or up to two years of imprisonment
- If deemed as a gross crime, between six months and six years of imprisonment (The non-exhaustive lists of criteria to be considered include the position of the individual, the value of the benefits, whether the bribery has been part of systematic criminal activity or criminal activity of large proportions or otherwise is of a particularly dangerous kind.)
(b) For the company/legal entity:
- Administrative fine between SEK5,000 and SEK10 million (requires that the company has not done what can be reasonably expected to prevent the bribery or that the bribery has been committed by an individual in a leading position or with special responsibility for supervision)
5. Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, amongst others) The Penal Code does not establish quantitative or qualitative limitations on hospitality expenses. In order to assess whether a hospitality expense is considered to be a bribe, whether the hospitality expense constitutes an improper benefit has to be established. The meaning of improper benefit is further described in preparatory works of the Penal Code as a benefit that objectively has the potential to affect the performance of a task or be perceived as a reward for the performance of a task. Whether a hospitality expense could be considered bribery will need to be determined on a case-by- case basis, taking into account all the facts and circumstances surrounding the case. The type of hospitality, the economic value and the position of the receiver are examples of these types of circumstances. Even though there is no separate legislation regarding bribery of public officials, hospitality given to public officials are more likely to be deemed improper due to the responsibility and trust associated with their position.
Facilitation payments
The Penal Code does not recognise so-called facilitation payments. Facilitation payments are considered improper benefits and thereby constitute bribery. Cash payments to public officials may objectively be seen as improper due to the nature of the benefit (cash) and the position of the receiver (public official).
Compliance programmes
1. Value of the compliance programme in mitigating/eliminating the criminal liability of legal entities The Swedish Penal Code does not specifically recognise compliance programmes as instruments to mitigate or eliminate the liability of legal entities before the crime of corruption has been committed. However, legal entities could partly mitigate their criminal liability if they adopt an effective compliance programme. As described above, a company that is found not to have done what could be reasonably expected to prevent bribery may receive a corporate fine. By adopting a compliance programme, a legal entity reduces the risk of not having done what can reasonably be expected to prevent bribery from taking place and thereby, the risk of receiving a corporate fine is reduced. However, a compliance programme is not an effective defence if the bribery has been committed by individuals in leading positions or with special responsibility for supervision. If a corporate fine is issued, the existence of a compliance programme may reduce the amount of the fine. 2. Lack of a compliance programme as a crime The Swedish Penal Code does not view the lack of a compliance programme as a crime. 3. Elements of a compliance programme (a) Legal framework The Swedish Penal Code does not recognise nor regulate the elements of a compliance programme. (b) Recommended practice In the absence of explicit legal provisions regarding compliance programmes, the adoption of a compliance programme is a recommended measure that can mitigate criminal liability by contributing to the view that a company has done what can reasonably be expected to prevent bribery from taking place. Preventive actions taken as a part of a compliance programme may also be taken into account in the fixing of the corporate fine.
Regulator with jurisdiction to prosecute corruption
The Swedish Prosecution Authority has jurisdiction to prosecute corruption cases, which are processed and executed by prosecutors at the National Anti-Corruption Unit of the Prosecution Authority. * Mattias Hedwall is a partner and Olof König is an associate in Baker McKenzie’s Stockholm office
The above article is a chapter of Baker McKenzie’s publication “Overview of Anti-Bribery Laws in EMEA” (2014). Please send us an email if you would like to receive a copy of the print version of the publication or click below to download the file. [wpdm_file id=1]