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Anticorruption Treatment Of Facilitation Payments


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. 



It is critical to identify if a discount is a legitimate customer-oriented business strategy or an undesirable unfair relationship beginning when evaluating the admissibility of discounts and bonuses. Arguments against admissibility include an unusually high level of the relevant benefit and a small variance. On the other hand, the routine negotiation of discounts in a transparent and well-documented manner creates no problems. Ireland is a country in Europe. In Irish law, there is no distinction between facilitation payments and other forms of corruption. As a result, if a payment falls within the scope of the Corruption Act, the individuals or corporations involved may be charged with a crime. 



Under Article 322 quinquies of the Swiss Crimi, anyone who offers, promises, or gives an undue advantage to a member of a Swiss judicial or other authority, a public official, an officially appointed expert, translator or interpreter, an arbitrator, or a member of the armed forces in order for the person to carry out his or her official duties faces a fine or up to three years in prison (SCC). The individual who accepts such a facilitation payment is subject to the SCC’s Article 322sexies. As a result, granting or accepting an advantage is illegal in Switzerland. In colloquial terminology, such unethical behavior is referred to as a “grease payment.” Because they fall outside the scope of the SCC, facilitation payments to foreign public officials are not sanctioned under Swiss law. UK Regardless of their amount or frequency, facilitation payments have always been prohibited in the United Kingdom. That was the case prior to the UK Bribery Act’s implementation. An enforcement agency will evaluate whether it is in the public interest to prosecute in relation to facilitation payments when deciding whether to prosecute. It’s more likely that you’ll face charges if: Payments have been made in substantial amounts or on a regular basis; Payments were scheduled or accepted as part of a typical corporate practice; Payments imply that an official has been corrupted; or There has been a blatant disregard for any existing policy on facilitation payments. 


United Arab Emirates

Facilitation payments are controlled, and the Federal Penal Code’s Articles 234 and 237 apply once again. In 2016, the code was changed to allow international public officials to be included, expressly to combat such situations. In this instance, the sanctions outlined in Articles 234 and 237 will also apply. 


United States of America

Any facilitating or expediting payment to a foreign official, political party, or party official, the objective of which is to expedite or secure the performance of a regular governmental activity by a foreign official, political party, or party official (18 USC 78dd-1(b)) is exempt from the FCPA. This exception only applies to non-discretionary government actions, such as “processing visas, providing police protection or mail service, and supplying utilities such as phone service, power, and water” (DOJ and SEC, “A Resource Guide to the US Foreign Corrupt Practices Act,” at 25 (2012, updated 2015).