1. Bribery in the home (private to public)
1.1 The Legal Environment
The Dutch Criminal Code prohibits bribery of public officials (ambtenaren). Active bribery (bribing public officials) is punishable under Article 177, while passive bribery is punishable under Article 363. (i.e., the public officials who are bribed).
1.2 What does bribery mean?
Bribery can be perpetrated by governmental authorities as well as commercial companies or individuals that attempt to bribe a public official.
Bribery is defined extremely broadly in the Dutch Criminal Code:
Any monetary or non-monetary gift, promise (even if unfulfilled), or service given to a former, current, or future public official, either directly or indirectly/through an intermediary, in order to induce him or her to perform any act, or refrain from acting, in the performance of his or her public duties, whether contrary to or in accordance with his or her official duties, is referred to as a public bribe.
Please note that offering a gift, benefit, or promise after a public servant has already acted in violation of his or her duty is likewise illegal. Furthermore, the Dutch anti-corruption laws do not stipulate that the public officer must benefit personally from the bribe. Furthermore, there is no requirement for causality between a given gratuity and a certain performance or non-performance.
As previously stated, indirect bribery is unlawful in addition to direct bribery. If local agents, representatives, or consultants are utilized to bribe a public official, the legal organization that used the intermediary may face criminal charges. As a result, legal entities are expected to be skeptical of the nature and scope of the operations to be undertaken by such third parties, as well as conduct due diligence/risk analysis on them.
1.3 What does it mean to be a public official?
The term “public official” is not defined in the Dutch Criminal Code. It simply states that public officials include members of general representative bodies, arbitrators, and members of the armed forces. Persons with a public function in a foreign state or an international institution, as well as former public officials, are included in the Dutch Criminal Code’s definition of public officials for the purposes of anti-bribery laws.
According to established case law, a public official is someone who is appointed by a public authority to undertake part of the tasks of the Dutch state and its bodies in relation to a public function. The individual in question must be engaged as a public official by a competent body, or the individual’s employer must undertake government functions and be subject to government oversight and control. In any case, the term “public official” is used in a broad sense.
1.4 Bribery’s Consequences
(a) For the Individuals Involved
Individuals who bribe public authorities face the same penalties as those who bribe public officials, according to the Dutch Criminal Code.
Fines of up to EUR 82,000 or up to six years in prison
Getting kicked out of certain professions
Confiscation of assets/proceeds of crime gained unlawful
(a) For the corporation/legal entity
If the fine of up to EUR 82,000 is deemed insufficient, a fine of up to 10% of the company’s annual revenue may be imposed.
Confiscation of assets/proceeds of crime gained unlawfully
1.5 Contributions from politics
Political parties are allowed to accept anonymous contributions of up to 1,000 euros.
Contributions ranging from EUR 1,000 to EUR 4,500 should be recorded (including name and place of residence of the giver, the amount and date of contribution). Contributions of more than EUR 4,500 are required to be made public. These restrictions currently only apply to national political parties.
1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
Hospitality expenses are not subject to any quantitative or qualitative restrictions under the Dutch Criminal Code. To determine whether a hospitality expense is a bribe, it must first be determined that the hospitality expense is an improper advantage (in line with the definition of bribery as indicated in Section 1.2).
The question of whether a hospitality expense constitutes a bribe must be decided on a case-by-case basis, taking into account all of the facts and circumstances.
Please note that public servants are usually bound by internal codes of conduct that require them to obtain prior approval from their authority before accepting any hospitality offers; prohibit the acceptance of gifts valued at more than EUR 50; prohibit the acceptance of gifts at their home address; and prohibit the personal use of benefits derived from their position.
2. Bribery in the home (private to private)
2.1 The Legal Environment
Bribery of non-public authorities is prohibited by Dutch Criminal Code Article 328ter.
2.2 What is bribery in the private sector?
The benefit must be offered/accepted in connection with what the non-public official has done or omitted, or will do or omit, in the course of his or her employment or the execution of his or her mandate. The person who is bribed must have kept the benefit hidden from his or her employer/principal, and the person who bribes must have a reasonable expectation that the advantage will be kept hidden from the non-public official’s employer/principal.
2.3 Consequences of private bribery
(a) For the people who are involved
Fines of up to EUR 82,000 or up to four years in prison
Getting kicked out of certain professions
Confiscation of assets/proceeds of crime gained unlawfully
The decision will be made public.
(a) For the corporation/legal entity
If the fine of up to EUR 82,000 is deemed insufficient, fines of up to 10% of the company’s yearly revenue may be imposed.
Confiscation of assets/proceeds of crime gained unlawfully
The decision will be made public.
2.4 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
Hospitality expenses are not subject to any quantitative or qualitative restrictions under the Dutch Criminal Code. The relevant element of the charge is “[concealed] in violation of good faith standards.” It must be determined whether the employee/mandate was required to notify his employer/principal based on objective criteria. In case of doubt, the employee/mandatory should report any received hospitality costs to his or her employer/principal.
3. Foreign public officials’ corruption / Corruption abroad
3.1 The Legal Environment
Bribing national or international officials is not differentiated in the Dutch Criminal Code. In the Dutch Criminal Code, foreign public officials are equated with Dutch public officials for the purposes of Article 177, which punishes active bribery (i.e., bribing public officials), and Article 363, which punishes passive bribery (i.e., the public officials who are bribed).
The following people can be punished in the Netherlands if they are involved in corruption abroad:
A Dutch public official was bribed in another country.
A person who works for an international institution based in the Netherlands and has been bribed overseas.
Anyone who bribed a Dutch individual or a Dutch government official in a foreign country.
A person or entity from the Netherlands who bribed a Dutch or foreign public official (abroad)
A Dutch public official or person who violates Article 177 while working for an international organisation based in the Netherlands.
A foreign public official who is bribed (abroad) by a Dutch person cannot be punished in the Netherlands unless the foreign public official is employed by an international institution based in the Netherlands.
3.2 Definition of foreign public officials’ corruption
A public bribe is any monetary or non-monetary gift, promise (even if unfulfilled), or service given to a former, current, or future public official, either directly or indirectly/through an intermediary, in order to induce him or her to perform any act, or refrain from acting, in the performance of his or her official duties, whether contrary to or in accordance with those duties.
3.3 Explanation of the term “foreign public official”
A foreign public official is defined as any person with a public duty who is employed by a foreign state or international agency for the purposes of this offence.
3.4 Consequences of foreign public officials’ corruption
(a) For the individuals involved
Individuals who bribe public authorities face the same penalties as those who bribe public officials, according to the Dutch Criminal Code.
Fines of up to EUR82,000 or six years in prison
Prohibition from practicing certain professions
Confiscation of assets/proceeds of crime obtained illegally
Fines of up to 10% of the company’s annual sales if the fine of up to EUR 820,000 is judged insufficient punishment for the company/legal entity.
Confiscation of assets/proceeds of crime obtained illegally
3.5 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)
Hospitality expenses are not subject to any quantitative or qualitative restrictions under the Dutch Criminal Code. To determine whether a hospitality expense is a bribe, it must first be determined that the hospitality expense is an improper advantage.