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In Anti-corruption Legislation, How Is A Public Official Defined? What Does It Mean To Be A Foreign Public Official?


The Criminal Code’s definitions of a “foreign public official,” a “business advantage,” a “foreign government entity,” a “foreign public enterprise,” and a “public international organization” are all quite broad. Persons officially employed by a government, as well as those who perform work for a government body or hold themselves out to be authorised as an official, or who may act formally or informally in accordance with a government’s directions, instructions, or wishes, are all covered by the definitions.



A person’s public capability is construed extremely widely. The public nature of the tasks performed, not the person’s standing, is what matters. This includes all types of people who perform public duties, regardless of their status, such as (Belgian or foreign) state or local civil servants and other public officials, elected members, professional officers, other people in positions of permanent or temporary public authority, and people who perform public service functions, including private individuals. As a result, private individuals performing public functions may be subject to prosecution (eg, private economic operators pursuant to the liberalisation of markets; a consultant advising a public authority).



A ‘public official,’ according to French criminal law, is anyone who holds an elected public office, such as mayor or regional adviser; has public authority, such as a police officer, justice of the peace, police commissioner, prefect of a region or deputy prefect; or is performing a public service mission, such as a judicial liquidator agent, an employee of Electricité de France, or a deputy prefect. Any person exercising functions in a foreign country or inside a public international organization is defined as a “foreign public official” under French criminal law: occupying a public elected position, exercising public authority, or performing public service.



German criminal law distinguishes between public officials, European public officials, and foreign and international public officials when it comes to corruption. In Section 11(1)(2) of the Penal Code, the phrase “public official” is defined. As a result, individuals who are in another official relationship under public law or are otherwise appointed to perform public administration duties at or on behalf of an authority or other body are to be considered civil servants or judges under German law, regardless of the organizational form chosen to perform their duties. Persons who are members of the European Commission, the European Central Bank, the Court of Auditors, or a court of law of the European Union; and officials or other civil servants of the European Union or of a body established on the basis of EU law, or who are responsible for carrying out tasks of the European Union are all considered European public officials under Section 11(1)(2a) of the Penal Code. Judges of foreign or international courts, as well as certain workers of foreign or international authorities, are designated as suitable beneficiaries of an act of corruption under Section 335a of the Penal Code. It also applies to soldiers and some officers of non-German troops stationed in Germany under the North Atlantic Treaty.



The Corruption Act does not define the term “public official.” The term “Irish official,” as defined by the Corruption Act, encompasses a wide range of individuals, including Irish members of both the Irish and EU Parliaments, government officials, the judiciary, jury members, arbitrators, officers, directors, and employees of Irish public bodies, as well as those paid by the Irish government or employed by or acting for or on behalf of the public administration. Members of foreign governments or parliaments, members of the European Parliament, Commission, and Court of Auditors, foreign public prosecutors, foreign members of the judiciary, foreign arbitrators, foreign jury members, foreign state employees, and foreign employees of organizations established by international agreements are all defined as foreign officials.



The word “public official” can refer to both functional and formal government employees. A member of an organization that performs official obligations is referred to as a functioning public official (regardless of whether the organisation is a public authority). As a result, it’s feasible that a state-owned or state-controlled firm employee is also a public official. An individual who is a member of a state organization is referred to as a formal public official. If they engage in (at least de facto) an official activity, private individuals may qualify as public authorities (Article 322decies, para 2 of the SCC). If they perform official tasks, they are subject to the same rules as public officials. Such individuals act in place of the state, or at the very least have direct influence over state choices. Persons who meet the same description as a Swiss “public official” and undertake such tasks for a foreign state, authority, or organization are referred to as “foreign public officials” under Article 322septies of the SCC.



The Bribery Act does not define the phrase “public official.” Section 6(5) defines a foreign public official as someone who occupies a legislative, administrative, or judicial post of any type in a country or territory outside the United Kingdom (or any subdivision of such a nation or territory) and performs a public duty, whether appointed or elected. A ‘public function’ is defined as working for or on behalf of a country or territory outside the United Kingdom (or any subdivision thereof), or for any public agency or public enterprise of that country or territory (or subdivision), or as an official or agent of a public international organization such as the United Nations or the World Bank. Bribery of a foreign public official does not need the bribee to intend to cause inappropriate behavior or to believe that the bribe will result in such behavior. All that is required is that the person giving the bribe intends to influence an official while operating in an official capacity in order for the official to earn or retain business or a competitive advantage in the conduct of business.


United Arab Emirates

The Federal Penal Code of the United Arab Emirates defines a “public official” as follows: In the present Law, a public servant is defined as someone serving in a federal or municipal government capacity, whether legislative, executive, administrative, or judicial, whether appointed or elected, such as: Those in positions of public trust, as well as personnel of ministries and government departments; Employees of security agencies; members of the military; Members of the judiciary, legislative, advisory, and municipal boards, as well as their chairs and members; Any person who has been delegated a task by a public authority, to the extent that the work has been delegated; Chairmen and members of boards of directors, as well as directors and other employees of public bodies and organizations, as well as corporations controlled entirely or partially by the federal government or local governments; Chairmen and members of the boards of directors of public welfare groups and organisations, as well as directors and other personnel. The current law defines public servants as anyone who does not fall into one of the groups listed in the previous clauses. Any person performing public service job as assigned to him by a public servant in authority in accordance with applicable rules and regulations.


United States of America

The FCPA does not distinguish between low-ranking and high-ranking foreign government officials; any such foreign government employee or official could be considered a “foreign official” under the term.