Payments for facilitation are only permissible in extremely few circumstances. A facilitation payment is defined as behaviour (offering, providing, or receiving a benefit of modest value) carried out solely or mostly for the purpose of speeding or securing the fulfillment of a minor government activity. Only where there is a question of whether a person has bribed a foreign public official does the facilitation offence apply outside of Australia. The person does not commit the primary international bribery offence if the bribe is a facilitation payment and the statutory prerequisites for that payment are met. Australia’s preservation of the facilitation payment defense has long been criticized in Australia and by the Organization for Economic Cooperation and Development. It is still included in the Criminal Code.
As a matter of law, the bribe’s value is irrelevant. What matters is the purpose to influence the recipient to act in a certain way in the context of their job. As a result, little gifts or benefits given in the ordinary course of business could theoretically be considered corruption if it can be demonstrated that they were given with this specific goal. In practice, in the case of low-value advantages, such intent will be ruled out. As a result, isolated low-value presents such as flowers, lunch, a pen with the company logo, or a bottle of wine are unlikely to be considered bribes. Facilitation payments are not permitted under Belgian law as a matter of principle and in light of the foregoing.
Despite the fact that facilitation payments almost always result in an unfair advantage, they are not specifically specified under French criminal law. There are currently no regulations or criteria in place under French criminal law to determine when a facilitation payment is allowed. Bribery should not be camouflaged by the abuse of the word “facilitation payments,” which the OECD Convention finds appropriate under limited, narrow situations (minor payments, for example, to acquire permission to unload goods in a port), according to the European Parliament. It has asked “Member States to agree to reject this notion, or to apply it only in severe circumstances,” according to the report. Case law: French courts have traditionally applied a broad interpretation to the term “undue advantage.” Self-appreciation: It is the responsibility of the appropriate individual to determine whether a facilitation payment is legal. The AFA expressly states: For entities subject to the Sapin II Act (see question 4.1), the AFA expressly states: under its instructions, states that all facilitation payments (regardless of quantity or frequency) can be prosecuted for corruption; and demands that restrictions on facilitation payments be included in their compliance programs.