Are facilitation payments regulated? If not, what is the general approach to such payments?
Bribery & Corruption (2nd edition)
There is no official definition for facilitation payments in China. Any payment that is made in exchange for illegal business opportunities, advantages or other interests could be potentially deemed as bribery. One relevant exception is in regards to small advertising gifts that are permitted by the Provisional Regulations on the Prohibition of Commercial Bribery, which is usually less than RMB 200 in practice. Other than that, article 83 of the Discipline Rules for the Communist Party of China stipulates that payment, cash, or shopping cards that might potentially influence their execution of duty, would be strictly forbidden, which seems to set aside an exception for such payment in a relatively small amount, with less likelihood of being deemed as bribery.
No specific definition or regime applies to facilitation payments under French law. Like hospitality and entertainment expenses, facilitation payments can be considered forbidden bribes and as such lead to a criminal conviction. In addition, the AFA guidelines provide that companies’ codes of conduct should address this issue.
Facilitation payments fall within the applicability of the Criminal Code. Therefore, the law contains no exemption from criminal liability for granting or receiving facilitation payments in relation to German or European public officials, German judges or arbitrators, international Criminal Court judges, members of an EU court or members of the German Federal Armed Forces according to sections 331, 333, 335a (2) and (3) of the Criminal Code.
The bribing of a non-European foreign public official is only punishable if the official violates an official duty, in addition to receiving a bribe (sections 332, 334 and 335a (1) of the Criminal Code). Therefore, if an official has not violated his duties, a punishable crime has not been committed.
Facilitation payments are prohibited. They are considered illegal not only in respect to anti-corruption laws and regulations but also in respect to taxation laws and regulations. These types of payments may not be registered in the books and records of a company, since they are not recognised by law.
There is no distinction in Irish law between facilitation payments and other types of corrupt payments. Therefore, should a payment fall within the scope of the 2018 Act, it may constitute an offence.
Facilitation payments in favour of a public official (or of a person in charge of a public service) are prohibited as they might fall under the offence of ‘bribery for the performance of the function’ pursuant to article 318 of the Criminal Code. Such crime occurs when a public official (or a person in charge of a public service) unduly receives (or accepts the promise to be given), for himself or herself or for a third party, money or other benefits to perform his/her functions or powers (i.e. to do something that the public person was anyway supposed to do).
The Belgian Criminal Code does not provide an exception of liability in case of facilitation payments. Facilitation payments fall within the scope of corruption and bribery and are thus prohibited under Belgian law.
There is no statute that specifically addresses ‘facilitation payments’ in Japan. In principle, the relevant laws, including the Penal Code and UCPA, regulate ‘facilitation payments’ as bribery if the elements of any bribery offense are met.
According to the Guidelines for the Prevention of Bribery of Foreign Public Officials (METI Guideline; most recently revised in July, 2015) published by the Ministry of Economy, Trade and Industry, any payment, whether it is for the purpose of avoiding discriminatory disadvantages such as the above, is likely to be considered to be the giving of money or other benefit ‘to obtain a wrongful gain in business’ for oneself.
The Bribery Act defines ‘advantage’ to include any facilitation payment made to expedite or secure performance by another person. A person commits the offence of giving or receiving a bribe if the person offers, promises or gives a financial or other advantage to another person, who knows or believes the acceptance of the financial or other advantage would itself constitute the improper performance of a relevant function or activity.
The FCPA has a narrow exception for ‘any facilitating or expediting payment to a foreign official, political party, or party official the purpose of which is to expedite or to secure the performance of a routine governmental action by a foreign official, political party, or party official’. 18 USC section 78dd-1(b). This exception applies only to non-discretionary government acts and includes ‘routine governmental action’ such as ‘processing visas, providing police protection or mail service, and supplying utilities like phone service, power, and water’. DOJ and SEC, A Resource Guide to the U.S. Foreign Corrupt Practices Act at 25 [2012, updated 2015].
No, as opposed to other jurisdictions and foreign laws (such as FCPA), there are no provisions specifically regulating facilitation payments, nor any exception allowing facilitation payments; therefore, pursuant to Article 66 of the LGRA and Article 222 of the CPF, such payments would be considered as bribery.
No. Brazilian laws or regulations do not discipline facilitation payments. Nonetheless, they are not excluded from the concept of improper advantage provided for the by Criminal Code and Clean Company Act. No public official may receive payments other than those provided for in Brazilian law, especially regarding the performance of his or her professional activities. Brazilian laws do not allow any kind of compensation or anything of value to be provided to government officials in order to induce or compel them to comply with his or her obligations.
Thus, any type of payment to an official to facilitate any activity would clearly be an act of active corruption by the party requesting the facilitation and/or passive corruption by the public official requesting the payment under Articles 316, 317 or 333 of the Criminal Code.
The Crimes Act permits facilitation payments to foreign public officials where there is a provision of small or nominal benefits, even if they are responsible for determining the award or continuation of business (see question 7 above). This rule has been criticised by the Organisation for Economic Co-operation and Development (OECD) and the New Zealand Government has highlighted the risks of making such payments and generally advises against the making or offering of any facilitation payments.
The facilitation payment exception in respect of foreign officials does not apply to New Zealand public officials. The de minimus defence (discussed in question 7) will apply however.
Under Danish law, no distinction is made between “regular” bribery and facilitation payments in the Criminal Code and as such facilitation payments fall within the scope of the Criminal Code’s bribery provisions.
It is stated in the legislative history of section 122 of the Criminal Code that special circumstances in foreign countries may cause facilitation payments to fall outside the scope of the Criminal Code’s bribery provisions. There is no published case law on facilitation payments.
Facilitation payments are expressly incriminated, corresponding with the hypothesis of speeding up the performance of an action which falls under purview of their professional duties from the definition of the bribe.
However, with respect to the person who supplies a public-interest service, which they have been vested with by the public authorities or who shall be subject to the latter’s control or supervision with respect to carrying out such public service (for instance, public notaries), the action does not constitute a crime when it is committed in relation to speeding up the performance of an action which falls under purview of their professional duties.
Facilitation payments may be defined as payments which are made to public officials to speed up an administrative process where the outcome is already pre-determined.
Facilitation payments are not specifically regulated in Singapore – in particular, there is no exemption or defence applicable to such payments similar to that provided under the United States Foreign Corrupt Practices Act 1977 (FCPA).
Thus, facilitation payments would constitute an act of bribery under Singapore law.
There are no specific regulations on facilitation payments, but they may fall under the prohibition of granting or accepting undue advantages. Hence, facilitation payments are unlikely to be considered offences, unless they involve Swiss public officials, see question no. 3 above.
A facilitation payment refers to the practice of paying a small sum of money to a public official as a way of ensuring that they perform their routine, non-discretionary duties, either promptly or at all.
Facilitation payments are illegal under the Bribery Act.In 2014, the UK government recognised “the problems that commercial organisations face in some parts of the world and in certain sectors”. However, in May 2019, the House of Lords' Select Committee on the Bribery Act 2010 recommended no changes in the law in relation to facilitation payments, stating that it would be a retrograde step to legalise facilitation payments. Moreover, in its response to the Select Committee's conclusions, the UK Government agreed that facilitation payments will remain a form of bribery and should not be legalised. The Government confirmed that there was no plan to change the law in this regard. Even if prosecutions do not take place, the continuing illegality of facilitation payments causes issues from a money laundering point of view.
Facilitation payments are no longer permitted under the CFPOA as of October 31, 2017 and remain prohibited under the Criminal Code.
Previously, facilitation payments constituted a defence under the CFPOA, such that payments made to expedite or secure the performance by a foreign public official of any act of a routine nature that is part of the official’s duties or functions, and which therefore do not require discretion – were excluded from the bribery offence.
There isn’t specific regulation for facilitation payments. As referred to in question No. 7, some offers may be considered acceptable, depending on the circumstances involving them.
The purpose of the offer is also relevant to taken in consideration.
Any type of benefit – small or large - is considered unacceptable when it is an exchange for a specific action by the public official.
There are however Codes of Conduct setting out some rules in this matter.
Resolution No. 53/2016 (published on 21.9.2016) of the Council of Government establishes a Code of Conduct for the active Government (the 21st Constitutional Government in Portugal). Article 8 of said Resolution states that an offer of an amount of €150 or more is presumed to affect the integrity and impartiality from the member of Government.
There is no defence for, or special regulation of facilitation payments in Argentine law. Any payment made to a public official in order for him/her to do anything related to his or her public function will trigger liability for bribery, or, in lack of a quid pro quo for mere gift giving. There are no value thresholds, or legal limits applicable in consideration of the amount of the payment -although case law and the legal doctrine have taken the approach that “small gifts,” meaning presents that lack in economic or pecuniary value, are out of the scope of the offense.
No. Those payments can also constitute corruption acts.