Bribery and in a Nordic context with an outlook to the UK Bribery Act

There are no fixed rules in Danish administrative law on the limit between allowable and nonallowable gifts. It is generally acknowledged that employees in the public sector may accept customary gifts from citizens or enterprises in connection with events of a personal nature. Small facilitation payments do not constitute payments made to obtain or retain business or other improper advantage.

1 Bribery and in a Nordic context with an outlook to the UK Bribery Act 2010 ECBT Conference 2015 Paris Professor Lars Bo Langsted IECC Crime Research Centre Aalborg University 1

2 Agenda 1) The Bribery Regulation in the Danish Criminal Code/in the Nordic Countries 2) Undue/Unlawful a) Administrative Law Codes of Conduct b) Small Facilitation Payments 3) Punishinglegal entitiesacc. to Danish Law & The UK Bribery Act

3 Background 3

4 Background 1) Do we have a blind spot in the Nordic Countries? 2) Pending case of bribery in connection with public procurement of laptops, Ipads etc. 3) Other cases pop up from time to time 4) Danish companies involved in possible corruption abroad (e.g. Brazil the Petrobas affair) 5) Danish (and other Nordic) companies paying facilitation payments abroad 4

5 Danish Criminal Code Bribery (Public) 122.Any person who unduly provides, promises or offers a gift or other favour to someone in Danish, foreign or international public service or engaged in such assignment in order to induce such person to perform, or to omit performing, an act in the service shall be punished by fine or imprisonment for up to six (6) years. (active bribery) 144. Any person who receives, requests or accepts a promise of an undue gift or other favour for him-/herself in the exercise of a Danish, foreign or international public service or assignment, shall be punished by fine or imprisonment for up to six (6) years (passive bribery) 5

6 Reqiurement of double criminality (CC 7, stk. 1) Covered by the European Arrest Warrant (2002/584/RIA, art. 2, stk. 2) Possibility of Punishing Legal Entities(CC 306, acc. to Chp. 5) 6

7 Case Law concerning Public Bribes UfR H Policeman Received DKK 150 in cash and wastreatedto dinnerat variousrestaurants DKK 150 correspondsapprox. to DKK in todaysmoney UfR H Five persons were convicted of receiving bribes. The person who had received the biggest favour had received approximately DKK 125,000 over an eight-year period. The person who had received the smallest bribe had received car accessories to a value of approx. DKK 1,800 over a five-year period and been granted an interest-free loan of DKK 15,000 by the same giver. UfR Ø the value of a number of gifts from the same giver ranging from a DKK 85 teapot to a DKK 1,265 bicycle were added up, totalling an amount of DKK 5,374 received over a period of four and a half years. The court found on this count that Section 144 had been violated. 7

8 OECD CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS (1997) art. 1:»Each Party shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business.«8

9 The Nordic Regulation (examples) Sweden Otillbörlig Förmån Same para for giving and receiving public as well as private bribes Fine or imprisonment not exceeding 6 years Norway Utilbørlig fordel Same para for giving and receiving public as well as private bribes Fine or imprisonment not exceeding 3 years / 10 years Iceland»ávinning, sem hann á ekki tilkall til«differences in the paras concerning active and passive bribery as well as between public/private bribery Giving: up to 3 years/2 years recieving up to 6 years/2 years 9

10 Undue/unlawful the lower limit There are no fixed rules in Danish administrative law on the limit between allowable and nonallowable gifts. Together with the National Association of Local Authorities and The Danish Regions, the State Employers Authority under the Danish Ministry of Finance issued a booklet in June 2007 with the title Code of Conduct in the Public Sector. The booklet includes a description of receipt of gifts which appear to adequately cover the state of administrative law. The booklet has inter alia this to say about occasional gifts:... It [is] generally acknowledged that employees in the public sector may accept customary gifts from citizens or enterprises in connection with events of a personal nature, e.g. special birthdays, anniversaries or resignation/retirement. Example: a chief executive of a local authority celebrates his twenty-fifth anniversary with a reception at the office. An enterprise with which the local authority has regular work relations wants to give the chief executive a suitable gift on this occasion, e.g. a book or wine. The chief executive is allowed to receive the gift. Employees in public service may similarly accept minor gifts from business connections etc. in connection with, for example, Christmas or New Year. It is important in these cases in particular, however, that the gifts are moderate. 10

11 UfR Ø: Undue/unlawful the lower limit In recent years, it has been attempted to narrow the limit for when benefits are acceptable in Danish administrative law, allowing only benefits that cannot reasonably be presumed to want to affect a public employee or give rise to suspicions hereof. The limit for the allowable under administrative law has nevertheless not been securely established. In criminal law terms, considerations which correspond to similar considerations in administrative law are found to be vital; however, with the substantial degree of security that must be required to be able to establish criminal liability, the limit for the legally acceptable under section 144 of the Criminal Code will be comparatively wider than in administrative law terms In FOB , the Danish ombudsman found that it was misfortunate that [Professor M], when he was employed as assistant professor, received cigarettes from students in a not completely insignificant amount. 11

12 Undue/unlawful the lower limit 144. Any person who receives, requests or accepts a promise of an unduegift or other favour for him-/herself Beneficiary: the Person or the Organisation? Purely Private Gifts and Gifts in Other Connections than Public Service Private Fees, Other Paid Occupations, Etc. Connection with the Function Risk of Conflict with Duty Legal Custom De Minimis Threshold? S. Bønsing & L.B. Langsted European Journal of Crime, Criminal Law and Criminal Justice 21 (2013)

13 Undue - Small Facilitation Payments 13

14 Undue - Small Facilitation Payments DK 122. Any person who unduly provides, promises or offers a gift or other favour to someone in Danish, foreign or international public service or engaged in such assignment in order to induce such person to perform, or to omit performing, an act in the service shall be punished by fine or imprisonment for up to six (6) years OECD-bribery convention the comments:»small facilitation payments do not constitute payments made to obtain or retain business or other improper advantage" within the meaning of paragraph 1 and, accordingly, are also not an offence. Such payments, which, in some countries, are made to induce public officials to perform their functions, such as issuing licenses or permits, are generally illegal in the foreign country concerned. Other countries can and should address this corrosive phenomenon by such means as support for programmes of good governance. However, criminalization by other countries does not seem a practical or effective complementary action.«sedvane.«n 276a. For korrupsjon straffes den som a).., eller b) gir eller tilbyr noen en utilbørlig fordel i anledning av stilling, verv eller oppdrag. Med stilling, verv eller oppdrag i første ledd menes også stilling, verv eller oppdrag i utlandet. Straffen for korrupsjon er bøter eller fengsel inntil 3 år. Medvirkning straffes på samme måte. (may increase up to 10 years)»»dette betyr ikke at «facilitation payments» i utlandet alltid gir grunnlag for å straff etter forslaget til ny 276 a. Slike handlinger skal bare være straffbare dersom fordelen som tilbys eller gis den utenlandske offentlige tjenestemannen, er utilbørlig. En del slike betalinger kan ikke karakteriseres som utilbørlige, for eksempel dersom situasjonen bærer preg av utpresning. Den som ser seg tvunget til å betale en utenlandsk offentlig tjenestemann et mindre beløp for å få tilbake passet sitt, eller for å få lov til å reise ut av landet, kan derfor ikke straffes etter forslaget. For øvrig må det også i disse situasjonene utøves et skjønn, hvor sentrale momenter vil være ytelsens verdi, samt om den bryter med lov eller 14

15 Undue - Small Facilitation Payments This (section 122) also applies to small facilitation payments, that is, payment of small amounts or small gifts to public employees performing their tasks, e.g. handing over a person s passport or issuing a permit. Small facilitation payments will as an absolute main rule be undue and therefore constitute violation of section 122 of the Criminal Code (active bribery) 15

16 Undue - Small Facilitation Payments 16

17 UK Bribery Act Failure of commercial organisations to prevent bribery (1)A relevant commercial organisation ( C ) is guilty of an offence under this section if a person ( A ) associated with C bribes another person intending (a) to obtain or retain business for C, or (b) to obtain or retain an advantage in the conduct of business for C. (2)But it is a defencefor C to prove that C had in place adequate procedures designed to prevent persons associated with C from undertaking such conduct. Compare Danish CC 27 : Criminal liability of a legal person is conditional upon a transgression having been committed within the establishment of this person at the fault of one or more persons connected to this legal person or at the fault of the legal person himself 17

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