Primary foreign anti-bribery legislation and enforcement agencies
Dutch Criminal Code
Prohibits bribery of foreign and domestic public officials
Investigating agency: ‘Rijksrecherche’ and the general police force
Prosecuting agencies:
Public prosecutors and, for corruption abroad, the National Corruption Prosecutor in Rotterdam
Offenses
Domestic Bribery (Private To Public)
- Active bribery (i.e., the bribing of public officials): Article 177 Dutch Criminal Code
- Passive bribery (i.e., the public officials who are bribed): Article 363 Dutch Criminal Code
Public bribe
Pecuniary or non-pecuniary gift, promise (even if not realized), or service to a former, current or future public official, either directly or indirectly / through an intermediary, in order to induce him or her to commit any act, or refrain from acting, in the performance of his or her public duties, whether contrary or in accordance with his or her official duties
It is also punishable to offer a gift, benefit or promise after the public servant has already acted contrary to his or her duties. It is not required that the public official personally gains from the bribe. Causality between a specific gratuity and a specific performance or non-performance is also not required.
Domestic Bribery (Private To Private)
- Bribery of non-public officials is regulated under Article 328ter of the Dutch Criminal Code.
Private bribe
Pecuniary or non-pecuniary gift, promise (even if not realized), or service to someone other than a public official who is employed or acts as a mandatory, which is – contrary to the standards of good faith – concealed from that person’s employer or principal
The benefit must be offered/accepted in connection with what the non-public official – in the course of his or her employment or the execution of his or her mandate – has done or omitted, or will do or omit. The person who is bribed must have concealed the benefit from his or her employer/principal, and the person who bribes must reasonably assume that the benefit will be concealed from the non-public official’s employer/principal.
Corruption Abroad
The Dutch Criminal Code makes no distinction between bribing national or foreign officials. Foreign public officials are equated with Dutch public officials in the Dutch Criminal Code for purposes of Article 177 (which penalizes active bribery) and Article 363 (which penalizes passive bribery).The Dutch Criminal Code does not specifically identify facilitation payments. That being said, facilitation payments are considered improper benefits and therefore constitute bribery.
Facilitation Payments
Facilitation payments are not prosecuted in the Netherlands when the following conditions are met:
- Small amounts (in absolute or relative terms) are concerned.
- The payment does not distort competition in any way.
- The payment has been provided at the initiative of the (foreign) official.
- Payments to junior public officials are concerned.
- The payment is not concealed by the company and is reflected transparently in the company’s financial accounts.
Corporate Liability
Bribery may be attributed to a legal entity if the crime is committed in the sphere of the legal entity, which may be the case in the following circumstances:
- The act has been committed by some employed by the legal entity.
- The act fitted in the usual course of business of the legal entity.
- The act has been useful in the course of business of the legal entity.
- The legal entity had power of disposal over the act and accepted the act (which is also the case if no due care has been exercised in order to prevent the act from happening).
Penalties – Criminal and/or Civil liability
Domestic Bribery – Private to Public
Corruption Abroad
For an individual
- Imprisonment for up to six years
- A fine of up to EUR82,000
- Exclusion from certain professions
- Confiscation of illegally obtained assets/proceeds of the crime
For company/legal entity
- Fine of up to 10 percent of the annual turnover of the company if a fine of up to EUR82,000 is considered insufficient punishment
- Confiscation of illegally obtained assets/proceeds of the crime
Domestic Bribery – Private to Private
For an individual
- Imprisonment for up to four years
- A fine of up to EUR82,000
- Exclusion from certain professions
- Confiscation of illegally obtained assets/proceeds of the crime
For company/legal entity
- Fine of up to 10 percent of the annual turnover of the company if a fine of up to EUR82,000 is considered insufficient punishment
- Confiscation of illegally obtained assets/proceeds of the crime