1. The jurisdictional framework
What is the legal framework in Denmark for bribery?
Bribery, along with other forms of wrongdoing such as embezzlement and fraud, is considered a form of corruption in Denmark. The Danish Criminal Code does not employ the terms “corruption” or “bribery,” although it does outlaw all forms of corruption, including bribery. Bribery is a crime in Denmark, as defined by the Danish Criminal Code, which was consolidated by Act No. 1156 of September 20, 2018. (in Danish: Straffeloven).
Sections 122 and 144 of the Danish Criminal Code define the laws for bribery of public officials.
Section 299 (2) of the Criminal Code makes bribery in the private sector illegal.
Bribery of arbitrators is expressly addressed under Section 304a of the Danish Criminal Code.
Complicity, assisting, and abetting a criminal conduct are all punished under Section 23 of the Danish Criminal Code.
Attempts to conduct a criminal conduct under the Criminal Code are likewise punishable under Section 24 of the Danish Criminal Code.
Denmark has also accepted a number of international anti-corruption treaties, including the United Nations Convention Against Corruption (UNCAC), the Council of Europe Criminal Law Convention on Corruption, and the Organization for Economic Cooperation and Development Anti-Bribery Convention (OECD Anti-bribery Convention).
Denmark, being a member of the European Union, has also implemented the EU’s anti-corruption directives and protocols.
2. What exactly is a bribe?
Bribery is not expressly defined in the Danish Criminal Code, however the act of bribery is criminalized by reference to the following acts:
where a person improperly grants, promises, or offers a gift or other advantage to another person who holds a Danish, foreign, or international public office or function, or where a person in such a function receives, demands, or accepts the promise of a gift or other advantage (bribery in the public sector); or where a person in such a function receives, demands, or accepts the promise of a gift or other advantage (bribery in the private sector); or
Any person who receives, claims, or accepts a gift or any other advantage for the benefit of themselves or others in their capacity as trustee of another person’s property in breach of their duty, as well as any person who grants, promises, or offers such a gift or another advantage in their capacity as trustee of another person’s property in breach of their duty (bribery in the private sector).
In this legal framework, what are the primary offenses?
Bribery is illegal in both the public and private sectors, according to the Danish Criminal Code.
Bribery is defined as giving, promising, or providing a bribe, whilst receiving, demanding, or accepting a bribe is defined as passive bribery. Bribery, both active and passive, is illegal in Denmark, according to the Criminal Code.
Bribes can take the form of real or intangible gifts or benefits, such as cash, vouchers for goods, airline tickets, and vacations, or awarding a job to a relative, granting permission, license, or permit, and so on.
Whether or not a person actually acts or refrains from acting, the purpose to induce them to act or abstain from doing can lead to criminal culpability. Even if the benefit is not paid or given, or if the act is carried out through an intermediary, criminal culpability may arise.
Due to a relatively low threshold for gifts and/or privileges, additional attention should be paid in tender offer situations and during contract negotiations.
3. What is the legal framework’s jurisdictional reach?
The Danish Criminal Code applies to criminal acts committed within the Danish state, on board a Danish vessel or aircraft located within the territory of another state by a person belonging to or travelling on the vessel or aircraft, or on board a Danish vessel or aircraft located outside the territory of another state by a person belonging to or travelling on the vessel or aircraft, according to the main rule of the jurisdictional reach of the Danish Criminal Code.
When specific criteria are met, the Danish Criminal Code also applies to acts done outside of Danish territory. The expansion of the Danish Criminal Code’s applicability, in general, requires that the conduct committed be likewise regarded a criminal conduct under the national laws of the state involved.
The Danish Criminal Codes make no distinction between acts performed by a physical person and acts performed by a legal person in terms of jurisdictional reach. A condition prior to a legal person’s criminal responsibility is that an offence was committed in the course of the legal person’s operations and that the offence was caused by one or more natural persons related to the legal person or by the legal person itself.
4. Who might be responsible?
Who might be responsible for bribery? (public officers, private individuals, legal entities, and the like)
Bribery can be committed by any natural person, judicial person, or corporation, according to the Danish Criminal Code. In practice, firms are more likely to face responsibility when an employee engages in active bribery than than passive bribery. See also Section 306 of the Danish Criminal Code, which addresses corporate and other judicial culpability.
Can a parent company be held responsible for its subsidiary’s bribery?
As a general rule, a parent business will not be held personally accountable for its subsidiary’s bribery unless the illegal act was decided or endorsed at the group level, or the parent firm failed to fulfill its duty of care.
Under Section 23 of the Danish Criminal Code, a parent corporation may be held liable for involvement in bribery.
5. Are facilitation payments (i.e. small payments to speed up routine governmental action) considered bribes in high-risk areas?
Yes, indeed. Bribery and facilitation payments are not legally distinguishable.
Are political and charitable contributions limited by the legal framework?
The Danish Act on Private Contributions to Political Parties and the Publication of Political Parties’ Accounts (the Party Accounting Act), as laid down in Executive Act no. 139 of 7 February 2019, governs political or charity contributions.
If a political or charity donation is provided or received with the goal of influencing or rewarding someone for doing inappropriately, it may be termed a bribe.
Donations from anonymous contributors are illegal under the Party Accounting Act. The prohibition, however, only applies to donations to political parties and candidate lists, not to individual candidates. Additionally, donations under a particular amount (currently DKK20,000) should not be reported.
Are there any restrictions on corporate hospitality in the legal framework?
If it is part of the company’s marketing or communication plan, hospitality in the form of sponsorship is acceptable. It is acceptable to sponsor seminars, conferences, sporting events, and other events with the goal of gaining commercial benefits. Sponsorship, on the other hand, must never be used to hide an illegal act, such as a bribe. Gifts and hospitality are only as good as their intent and the benefit they provide.
6. Legal protections
Are there any bribery offenses with defenses?
Charges under Section 122, Section 144, Section 299 (2), or Section 304a of the Danish Criminal Code have no particular statutory defenses.
7. What are the primary regulatory or enforcement body for bribery?
The State Prosecutor for Major Economic and International Crime (SIK) is a special unit under the Danish Public Prosecution Authority that deals with serious economic crime matters, such as alleged bribery investigations.
8. Legal implications
What are the legal implications of being charged with bribery offenses?
Bribery rules and regulations violations are penalized by a fine or up to six years in jail.
A fine may be imposed on a company. There is no statutory restriction on the amount of fines that can be imposed.
Criminal property (i.e. the proceeds of crime) deriving from the offence may also be confiscated from a natural and/or judicial person.
Furthermore, under the EU Public Procurement Directive, organizations convicted of bribery offenses may be barred from bidding on public contracts.