Australia
Yes.
Belgium
Individual and personal criminal culpability must be established for each person accused of committing a crime. As a result, a business cannot be held accountable for the actions of others. However, if criminal conduct is shown (as the main offender or as an aider and abettor), both the legal and natural persons who acted on behalf of the firm can be found guilty of the same offense.
France
Yes, legal entities can be held criminally accountable for offenses committed for their profit by their management or representatives under French penal law (including employees with the power to represent the company and acting on its behalf). Furthermore, case law has concluded that a legal entity’s criminal responsibility might be engaged by the actions of individuals who, though not members of official bodies or representatives of the corporation, are performing these responsibilities in practice. The corporation will not be exempt from criminal culpability if management or representatives violate an internal corporate policy.
Germany
Section 30(1) of the Act on Administrative Offences allows the corporation to be held accountable for the misbehavior of a chairperson, director, or manager. The manager, for example, must have committed the act of corruption while performing his or her managerial obligations. Because the criminal acts in Sections 299 and 331 and following of the Penal Code influence the company’s business sphere and sphere of activity, the operational nature of the breach of duty necessary for the determination of a fine must be affirmed in the event of corruption. If an employee engages in unethical behavior, the corporation is not directly liable. Only Sections 30 and 130 of the Act on Administrative Offenses can be used to determine liability. Only if a manager’s breach of supervisory responsibility is proven, may a fine be levied on the company.
Ireland
If the following people commit an act with the goal of securing or retaining business for the body corporate or an advantage in the conduct of business for the body corporate, the body corporate will be guilty of an offence under the Corruption Act: a person pretending to be a director, manager, secretary, or other officer; a shadow director; or an employee, agency, or subsidiary. The body corporate can use this as a defense by demonstrating that it took all reasonable efforts and used all due effort to avoid committing the offence.
Switzerland
Yes, if the corporation has failed to take all reasonable organizational steps to prevent the crime, or if the company’s organization is inadequate.
UK
Yes. If an individual can be demonstrated to be responsible for the offence, he or she can be prosecuted under Sections 1, 2, or 6 of the Bribery Act. However, if it can be demonstrated that the corporation’s controlling mind and will were responsible for the bribery, the firm can be prosecuted under Sections 1, 2, or 6 – either alongside or instead of individuals. Only a company, however, can be prosecuted under Section 7. A company can be punished under Section 7 of the act if a person linked with it bribes another person with the intent of obtaining or retaining business for the company, or to obtain or retain an advantage in the conduct of business for the company. Section 8 defines a ‘person affiliated with a firm’ as a person who performs services for or on behalf of the firm, which would undoubtedly include management and other personnel. This includes any agents employed by the corporation or its subsidiaries. A prosecution deriving from the offences committed by the related person is not required under Section 7. However, substantial evidence must be presented to prove the commission of such an offense to a criminal standard. The purpose of Section 7 of the Bribery Act is to force a change in corporate culture, which is why it is so broad and allows a corporation to be punished if senior employees bribe. While having adequate procedures in place is a defense against Section 7, there are no statutory provisions or guideline cases to help determine what constitutes appropriate policies and procedures. This will be determined by the facts of each case. R v Skansen Interiors Ltd was the first challenged case for failure to prevent bribery (2018). Skansen was a UK-based corporation that received two contracts for £6 million in 2013. The managing director paid two bribes to the project manager at the business that was inviting tenders for the work, the first for £10,000 and the second for £29,000. Skansen was punished despite the fact that the bribery was performed by a senior employee without the company’s knowledge and that the bribes were discovered by new management — who self-reported the bribery to the National Crime Agency. The Skansen managing director and the other company’s project manager were charged with bribery under Section 1 of the Bribery Act, while Skansen was charged with failing to prevent bribery under Section 7. Skansen required to establish that it had enough polices in place to adequately defend itself, but the jury determined that this was not the case, resulting in the conviction. Because there is no legal guidance on what constitutes acceptable procedures, businesses should seek professional opinion on what would be considered adequate.
United Arab Emirates
Yes. Legal persons (other than government services, government departments, public organizations and institutions) are accountable for the crimes committed in their name by their representatives, directors, and agents, according to Article 65(1) of the Federal Penal Code (as modified). If a third party was harmed as a result of the bribery, the corporation could be sued. In terms of the criminal implications of bribery, fines and penalties of up to AED 50,000 can be levied on the company. The person who perpetrated the offense will be held completely accountable to the full extent of UAE law.