Does the law distinguish between bribery of a public official and bribery of private persons? If so, how is ‘public official’ defined? Are there different definitions for bribery of a public official and bribery of a private person?
Bribery & Corruption
Australian laws do distinguish between bribery of a public official and bribery of private persons.
A foreign public official is defined broadly under Australian law and includes employees or officials of foreign government bodies (including military or police), contractors to foreign government bodies, intermediaries of foreign public officials, members of the judiciary of a foreign country, employees of public international (inter- governmental) organizations, persons performing duties for an office under a law of that country, and any person in the service of a foreign government body.
The definition of a Commonwealth public official expressly includes Commonwealth of Australia public service employees, defence force members, members of the AFP, service providers contracted to the Commonwealth, members of statutorily appointed bodies (such as chancellors of universities) or Commonwealth holders of office such as members of parliament, judicial officers and the Governor-General. Whether employees of publicly-owned companies in Australia will be deemed to be Commonwealth public officials will primarily depend on whether they are considered to be employed by the Commonwealth and whether they exercise powers or perform functions conferred on them by a law of the Commonwealth.
Australian state and territory laws have similarly broad definitions, though specific laws apply to different types of state or territory public officials.
The scope of private bribery offences vary between Australian states and territories. For example, in the state of New South Wales, the law prohibiting private bribery is primarily directed towards agents who receive corrupt benefits as an inducement or reward in relation to the business affairs of the agent's principal. Both the agent receiving and the person giving the benefit commit an offence, although the principal does not.
Yes, Polish law distinguishes between bribery of a public official and bribery of a private person.
Passive bribery in the private sector involves the acceptance of a benefit by a person, who either holds a managerial position or has significant influence on the decision-making process in an entity, in exchange for behaviour that could cause material damage to that entity, constitute an act of unfair competition or inadmissible preferential action. Active bribery in the private sector, on the other hand, consists in giving (or promising) a financial or personal benefit in the same cases.
For the purpose of the anti-corruption regulations, the Polish Criminal Code uses the term "a person performing a public function," which includes mainly persons holding public functions, such as:
- "Public Officials" that is:
- the President of the Republic of Poland;
- a member of the lower or upper chamber of the Polish Parliament or of a local government agency;
- a Member of the European Parliament;
- a judge, lay judge, public prosecutor, an official of a financial authority responsible for conducting preparatory proceedings or of an agency superior to such financial authority, a notary, a court enforcement officer (bailiff), an official receiver, an insolvency administrator and/or trustee, a member of a disciplinary panel adjudicating on specific matters on the basis of a statute;
- an employee of a government agency, other state agency or local government agency, unless such person only performs auxiliary functions, as well as any other person to the extent he/she is authorised to issue decisions in the administrative course of procedure;
- an employee of a state or local government inspection authority, unless such person only performs auxiliary functions;
- a holder of a managerial position in a different government institution;
- an officer of an agency designated for the protection of public security or a prison officer;
- a person doing active military service;
- an employee of an international criminal court, unless such person only performs auxiliary functions.
- persons holding a position with a foreign government or a supra-national organisation;
- members of local government administration bodies;
- other persons whose competencies or duties concerning public activity are specified by Polish law (e.g. court-appointed experts, members of arbitral tribunals).
The term "a person performing a public function" also covers persons who are not public officials, but are employed by organisational units with public funds at their disposal (except when the person performs only service-type work) (e.g. members of tender committees in public procurement procedures).
Anti-corruption legislation in Ireland generally prohibits bribery of both public officials and private individuals committed in Ireland and, in certain circumstances, committed abroad. In contrast with other jurisdictions, the offences provided for under Irish legislation do not generally distinguish between the bribery of persons working in a public or private body. The only exception is the presumption of corruption, detailed below, which only applies to public officials.
Various presumptions of corruption arise under the Public Bodies Act, the Prevention of Corruption Act and the National Asset Management Agency Act 2009. These include where:
- a payment was made by a person, or agent of a person, who is seeking to obtain a contract from a government minister or a public body;
- an undisclosed political donation above a certain threshold is made to certain specified persons and the donor had an interest in the donee carrying out or refraining from doing any act related to their office or position;
- a public official is suspected of committing an offence under the Prevention of Corruption Act and the person who gave the gift or advantage had an interest in the public official granting or refusing a licence or authorisation, making a decision relating to the acquisition or sale of property, or exercising any function under the Planning and Development Act 2000; or
- a gift, consideration or advantage is conferred upon a person performing functions for the National Asset Management Agency (NAMA) by a person whose debts have been assumed by NAMA.
The constitutionality of the presumption of corruption was recently upheld by the Irish Court of Appeal in the People (DPP) v Fred Forsey  IECA 233. This case is subject to a Supreme Court appeal which is anticipated in 2018. The Supreme Court is expected to provide certainty to the issue of the constitutionality of the presumption of corruption in given circumstances.
According to the provisions of the Brazilian Anticorruption Law, the wrongful acts would only include acts carried out against the public administration (whether national or foreign). Therefore, the bribery of private persons would not be considered a violation under Brazilian laws and regulations.
Under the Brazilian Public Property Law (which reproduces a concept of public official that is provided by the Brazilian Criminal Code), a public official is any individual who, whether by a permanent or transitory bound, and regardless of the payment of compensation, exercises a public position, job or function.
For the specific purposes of the Brazilian Anticorruption Law:
- public agencies and entities, or diplomatic representations of a foreign country, at any government level or scope, as well as legal entities directly or indirectly controlled by the government of a foreign country are all considered foreign public administration;
- international public organizations will be considered equivalent to foreign public administration bodies; and
- those who, even transitorily or without compensation, hold a public position, job or office in government agencies and entities, or in diplomatic representations of a foreign country, as well as in legal entities directly or indirectly controlled by the government of a foreign country, or in international public organizations, will be considered foreign public agents.
UK anti-bribery legislation does not distinguish between bribes paid to a public official and those paid in the private sector.
Yes, it does distinguish between bribery of a public official and a public person. Furthermore, there isn’t a different definition of bribery for a public official and a private person merely a difference in how bribery can apply to each.
Article 5 of the Penal Code defines a Public Official as follows:
“A public servant shall be defined in the present Law as any person in a federal or local position, whether legislative, executive, administrative or judicial, whether be appointed or elected such as:
I. Persons entrusted with public authority and employees of ministries and government departments;
II. Members of the military forces;
III. Employees of security bodies;
IV. Members of the judiciary, chairmen and members of legislative, advisory and municipal boards;
V. Any person assigned to a certain task by a public authority, to the extent of the delegated task;
VI. Chairmen and members of boards of directors, directors and other employees of public authorities and institutions, as well as companies owned, wholly or partially by the Federal Government or local governments;
VII. Chairmen and members of the boards of directors, directors and other employees of societies and associations of public welfare.
Public servants shall be deemed by the present law as any person who is not included within the categories set forth in preceding clauses. Any person engaged in the work of public service as assigned to him by a public servant in charge under laws or regulations with respect to the assigned task.”
Article 236 bis (1) of the code deals with the offence of accepting a bribe as a public official as follows:
“Any person who administers an entity or establishment that pertains to the public sector, or is employed by either one of whatever capacity, who requests, accepts, either directly or indirectly, a gift, benefit or a grant that is not due, or is promised of the same, and, whether to the benefit of himself or another person, in order for such person to commit or omit an act that is included in his duties, even if he has intended not to fulfil or omit such act, or if the request, offer or promise is made after the fulfilment or omission of such act, shall be sentenced to imprisonment for no more than five years.
In the private sector, article 236 bis (2) deals with the offences of accepting a bribe in the private sector and states the following:
“Any person who promises another person managing an entity or establishment of the private sector, or who is employed by him in any capacity, with a gift, benefit or grant that is not due, or who offers or grants the same, either directly or indirectly, whether to the benefit of the person himself or for another person, in order for that person to perform or to omit an act that is included in his duties or constitutes a violation thereof, shall be sentenced to imprisonment for no more than five years.”
The general bribery offences under section 5 and 6 of the PCA apply to both the private and public sectors. In addition to these, the PCA sets out a series of corruption offences specifically covering the public sector, in particular:
- Corruptly procuring the withdrawal from a government tender (Section 10);
- Bribery of a member of the Singapore Parliament (Section 11); and
- Bribery of a member of a public body (Section 12).
Public officials are indirectly defined in the PCA as being "a member, officer or servant of a public body"; a public body, in turn, is widely defined as "any corporation, board, council, commissioners or other body which has the power to act under and for the purposes of any written law relating to public health or to undertakings or public utility or otherwise administer money levied or raised by rates or charges in pursuance of any written law." This includes government boards, councils, commissioners, universities, and public health and utility bodies (section 2, PCA).
The Penal Code's corruption offences relate solely to bribery of "public servants" or public bodies and include, in particular, the following:
- The acceptance by a public servant of a gratification or anything of value without any or adequate consideration (section 165, Penal Code);
- The acceptance of a gratification by any person in order to influence or to exercise personal influence over a public servant (sections 162-163, Penal Code); and
- The acceptance by a public servant of a gratification or anything of value as a reward for doing any official act, outside of legal remuneration (section 161, Penal Code).
"Public servant" is defined in section 21 of the Penal Code as:
- An officer in the Singapore Armed Forces;
- Every judge;
- Every officer of a court of justice;
- An assessor assisting a court of justice of public servant;
- An arbitrator;
- An office holder who holds powers to confine other persons;
- An officer of the Singapore Government;
- An officer who acts on behalf of the Government; or
- A member of the Public Service or Legal Service Commission.
Yes. The law distinguishes between the bribery of a public official and that of private persons. There is a specific term for public official in China, which is “state functionary”, which refers to anyone who performs public service in state organs, state-owned enterprises and institutions, and the other persons who perform public service according to law. The Criminal Law sets up a clear division between the bribery of a state functionary and the bribery of a private person, and also provides for different crimes depending on the involvement of the duty, or influence of the state functionary. For example, offering bribes to an executive in a private entity would be convicted of the crime of offering bribes to a non-state functionary, and subject to criminal liabilities ranging from criminal detention to imprisonment of up to 10 years, with a monetary penalty when the involved amount is huge. As for the act of offering bribes to a state functionary, it would constitute the crime of offering bribes to a state functionary, and subject to criminal liabilities of up to life-time imprisonment, along with the confiscation of property.
As opposed to other jurisdictions, Mexican law only provides specific definitions and typology for bribery of public officials and does not include specific provisions in connection with the bribery of private persons. Notwithstanding the fact that certain illicit conducts -mostly framed as fraud- may fall within the scope of the general concept of “private” bribery, there is no specific provision in Mexican law neither defining nor sanctioning the bribery of private persons.
Public official is defined in the LGRA as such person holding an employment, position or commission in public entities, whether federal or local, in accordance with the provisions of Article 108 of the CPEUM, that is, elected representatives, members of the Federal Judicial Power, officials and employees and, in general, any person who performs a job, position or commission of any nature in the Congress or in the Federal Public Administration, as well as in autonomous governmental organizations.
For purposes of the CPF, public official means any person who performs a job, position or commission of any nature within the Centralized Federal Public Administration or in Mexico City, decentralized bodies or agencies, state companies (or similar organizations and companies), public trusts, state productive companies, autonomous constitutional bodies, legislative power known as Congress of the Union, or in the Federal Judicial Power, or that handles federal economic resources.
There is a distinction between bribery of public officials and private persons. Both are punishable under Greek Law.
A public official is a person entrusted permanently or temporarily with the exercise of duties directly related to the State or public law entities.
Article 263A of the Greek Criminal Code (as amended) has extended the notion of “public official” including employees of entities of private law established and/or controlled by the State or of other public law entities, domestic banks, members of the judiciary (also arbitrators), members of international and transnational bodies, mayors and/or members of local governments or local parliaments, members of international organizations, members of EU Bodies, individuals that exercise public service for a foreign country.
Concept of bribing a private person not discharging public functions/duty is unknown to Indian Law. Dealings between private individuals having a flavour of criminality can be covered under IPC depending upon the nature of the transaction. While the term ‘bribery’ has been defined in Section 171B IPC, there is no separate definition of bribery of a public official and bribery of a private person.
The term ‘public servant’ has been defined in Section 2(c) of the PCA as:
“2(c) “public servant” means—
(i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance of any public duty;
(ii) any person in the service or pay of a local authority;
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(iv) any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;
(v) any person authorised by a court of justice to perform any duty, in connection with the administration of justice, including a liquidator, receiver or commissioner appointed by such court;
(vi) any arbitrator or other person to whom any cause or matter has been referred for decision or report by court of justice or by a competent public authority;
(vii) any person who holds an office by virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;
(viii) any person who holds an office by virtue of which he is authorised or required to perform any public duty;
(ix) any person who is the president, secretary or other office-bearer of a registered co-operative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956);
(x) any person who is a chairman, member or employee of any Service Commission or Board, by whatever name called, or a member of any selection committee appointed by such Commission or Board for the conduct of any examination or making any selection on behalf of such Commission or Board;
(xi) any person who is a Vice-Chancellor or member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations;
(xii) any person who is an office-bearer or an employee of an educational, scientific, social, cultural or other institution, in whatever manner established, receiving or having received any financial assistance from the Central Government or any State Government, or local or other public authority.
Explanation 1.—Persons falling under any of the above sub-clauses are public servants, whether appointed by the Government or not.
Explanation 2.—Wherever the words “public servant” occur, they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.”
Moreover, the Supreme Court of India also expanded the ambit of the definition of ‘public servant’ (under the PCA) to include all officials of private banks, as their duties are public in nature.
Under the Angolan jurisdiction, only bribery of public officials is punishable, under Articles 37 and 38 of the LCMLO. Bribery in the private sector is not criminalized.
However, the agents of the crime of active corruption may, naturally, be entities of the private sector.
The law defines ‘public official’ as:
a) Civil servant;
b) Administrative agent;
c) Arbitrators, jury members and experts;
d) Holders of political office, elected or nominated; and
e) Whoever, even if provisionally or temporarily, against payment or for free, voluntarily or mandatorily, has been called upon to perform or to participate in the performance of an activity within civil, administrative or jurisdictional service or, under the same circumstances, undertakes a position or participates in public-benefit organisations.
Paragraph 2 compares the concept of civil servants to managers, officers of supervisory bodies and workers of public companies, nationalised public companies, publicly held companies or companies with the majority of capital publicly held, and also companies that are concessionaires of public services.
Article 59 (3) further extends the treatment as civil servants to the following offices:
a) Anyone who performs identical functions to those described in paragraph 1 within the scope of any public international law organization of which Angola is a member of, whenever the infringement has been fully or partially committed on Angolan territory; and
b) Anyone who performs functions within the scope of out-of-court dispute settlement procedures.
Yes, different laws and different sanctions are applicable depending on whether the bribed party is a public official or not and also depending on bribed party’s position within the State.
Public officials can be distinguished between civil servants, military personnel and political office holders or high public office holders.
For the purposes of criminal law, the definition of civil servant includes:
- Civil servants;
- Administrative officials;
- Arbitrators, jurors and experts;
- Whoever, even where provisionally or temporarily, against consideration or without charge, voluntarily or mandatorily, has been called to perform or to participate in the performance of an activity falling under the administrative or jurisdictional civil service, or to perform functions in public-benefit bodies or to participate in them, under the same circumstances;
- Managers, officers of supervisory bodies and employees of nationalized public companies, publicly held companies or companies with a majority public capital holding and companies that are concessionaires of public services;
- Magistrates, officers, agents and others treated as such of public international law organizations, irrespective of their nationality and residence;
- Officers who are nationals of other States when the infringement has been fully or partially committed on Portuguese territory;
- Anyone who performs identical functions to those falling under the definition of civil servant within the scope of any public international law organization which Portugal is a member of, whenever the infringement has been fully or partially committed on Portuguese territory;
- Magistrates and officers of international courts provided that Portugal has declared to accept the jurisdiction of such courts;
- Anyone who performs functions within the scope of out-of-court dispute settlement procedures, irrespective of their nationality and residence, whenever the infringement has been fully or partially committed on Portuguese territory; and
- Jurors and arbitrators who are nationals of other States whenever the infringement has been fully or partially committed on Portuguese territory.
For the purpose of criminal law, the definition of military personnel includes:
- Officers, sergeants and privates in the permanent staff of the Armed Forces or the Republican National Guard, under any circumstance;
- Officers, sergeants and privates not in the permanent staff in effective service; and
- Students of officer and sergeant schools.
For the purposes of criminal law, political office holders are:
- The President of the Republic;
- The President of the Assembly of the Republic;
- Members of the Assembly of the Republic;
- Members of Government;
- Members of the European Parliament;
- Representatives of the Republic in the Autonomous Regions;
- Members an Autonomous Region’s Government;
- Members of the representative body of a local authority;
- Political office holders of international organizations and of other States whenever the infringement has been fully or partially committed on Portuguese territory.
For the purposes of criminal law, the definition of high public office holders includes:
- Public managers;
- Holders of management positions in companies which have been designated by the State;
- Members of executive bodies in companies which are part of the local public sector;
- Members of the directive bodies of public institutes;
- Members of independent public entities established in the Constitution or in the law;
- Holders of superior directive offices of 1st rank and equivalent.
At the outset, the Danish Criminal Code distinguishes between three types of bribery; 1) “public active bribery” which is governed by section 122, 2) “public passive bribery” which is governed by section 144, and 3) “private bribery” which is governed by section 299(2), which applies to both “active” and “passive” bribery of private persons.
As mentioned, section 122 governs “public active bribery” which means the act of giving, offering or promising a bribe to a public official. Accordingly, it follows from section 122 that: Any person who unduly gives, promises or offers to someone performing a public function or office with a Danish, foreign or international public organisation a gift or another benefit to make the relevant person perform or fail to perform such function or office is sentenced (…).
Section 144 of the Danish Criminal Code mirrors section 122 in the sense that section 144 prohibits any individual exercising a domestic, foreign or international public function from unduly receiving, demanding or agreeing to receive a gift or another benefit.
It is clear from the wordings of sections 122 and 144 that the provisions must be interpreted broadly and in accordance with the principles of the anti-corruption conventions ratified by Denmark. Accordingly, the provisions cover persons elected to, employed by or acting on behalf of any Danish public body (state and municipal alike), as well as persons with a similar relationship to either a foreign state or an international organisation (such as the UN, the OECD or NATO). As the provisions must be understood to reflect OECD guidelines and similar instruments, a public body includes functions carried out by limited companies, etc. on behalf of a public body. Consequently, “public official” must be understood broadly under Danish anti-bribery law.
Section 299(2) of the Criminal Code governs bribery in the private sector. It follows from section 299(2) that a fine or imprisonment” … is imposed on any person who receives, demands or agrees to receive a gift or another benefit for himself or others in a manner contrary to his duty of managing the property entrusted to him by another person, and on any person who grants, promises or offers such gift or benefit”.
German criminal law distinguishes between offering and receiving bribes of public officials (section 331 – 336 of the Criminal Code), of voters and delegates (sections 108b and 108e of the Criminal Code), in relation to the sports sector (sections 265c and 265d of the Criminal Code) as well as offering and receiving bribes in business transactions, which includes the public health sector (section 299 – 301 of the Criminal Code). Furthermore the Criminal Code differentiates between “public officials”, “European officials” and “persons entrusted with special public service functions”. Each term is defined in section 11 of the Criminal Code. According to section 11 No. 2 of the Criminal Code a “public official” is a person who, under German law, is a civil servant or judge, and otherwise carries out public official functions or has otherwise been appointed to serve with a public authority or other agency or has been commissioned to perform public administrative services regardless of the organisational form chosen to fulfil such duties. As shown in the “Ecclestone-case”, it can be controversial on the definition of a “public official”.
The Criminal Code defines bribery of public officials and bribery in business transactions differently (see question 3).
Italian law distinguishes between bribery of a public official and bribery of private persons, in particular:
- articles 318 to 322 bis of the Criminal Code regulate bribery offences relating to domestic or foreign public officials and provide for penalties for both such persons and the private persons who bribe (or attempt to bribe);
- articles 2635 and 2635 bis of the Italian Civil Code regulate the so-called ‘private bribery’. Private bribery occurs when a director or a general manager or a manager in charge of preparing the corporate accounting documents or a statutory auditor or a liquidator ask or receive undue money or any other benefit (or accept the promise to be given such money or benefit) in order to perform (or not to perform) a conduct in breach of their duties. The said articles provide for penalties for both such persons and the private persons who bribe (or attempt to bribe).
The ‘public official’ is defined by the article 357 of the Criminal Code as a person who is in charge of performing a public, legislative, juridical or administrative function. On top of that, article 358 of the Criminal Code defines the ‘person in charge of a public service’ (which is as well subject to public bribery and corruption provisions) as a person who, for whatever reason, provides a public service.
As we have seen above, corruption crimes in the public sector are based on the concept of civil servant, the definition of which, provided in Article 336(1) PC, includes:
a) a worker of the public administration or of other public legal persons;
b) a worker at the service of other public authorities; and
c) whoever, even where provisionally or temporarily, against remuneration or without charge, voluntarily or obligatorily, has been called to perform or participate in the performance of an activity falling under the administrative or jurisdictional civil service.
Other persons will also be treated as civil servants, notably:
a) a Chief Executive, Secretaries, Members of the Legislative Assembly, Members of the Advisory Board, the Judicial and the Ministério Público Magistrates and the Commissioner Against Corruption;
b) holders of administrative and supervisory bodies, or bodies of another nature, and the workers of public companies, publicly held companies or companies with a majority public capital holding, as well as companies that are concessionaires of public services or assets or companies developing activities on an exclusive basis.
Given that workers of companies engaged in activities on an exclusive basis have been considered to be equivalent to civil servants, the legal community has been considering that workers of gambling companies must be treated as civil servants for the purposes of penal law.
Law no. 19/2009 of August 17th lays down the framework of penal liability for corruption crimes in the private sector, whereby both passive and active corruption is punishable in the private sector.
HRA: The law does distinguish between bribery of a public official and bribery of a private person. The term used in foreseeing crimes of corruption is that of "public servant". According to the Criminal Code, public servant can be defined as a person who has a mandate, position, job or function in a public entity, by virtue of election, appointment, hiring or any other form of investiture or bond, even if in a transitory form or without remuneration.
The terms "employee", "agent of the State", "public employee”," municipal agent" or any other similar term that is used to identify a person acting in a public body should be understood as synonyms to the term “public servant”.
However, there are not different definitions of bribery for each case and the provisions of the Criminal Code relating to crimes of corruption apply both to the public sector and to the private sector. The only difference relates to the penal frameworks to be applied, which differ from one sector to another.
In Japan, there is no legislation which directly regulates bribery of private persons. Please note however, that officials or employees of a corporation may be liable for aggravated breach of trust against the corporation under Article 960 of the Companies Act if they accept bribes.
The scope of “public official” is described in the Penal Code and other relevant legislations. It includes national and local government officials.
Corruption is qualified as ‘public corruption’ when the corrupted individual is a public official, and Corruption is defined as ‘private corruption’ when this individual is not a public official. Both qualifications are based on the legal status of the corrupted individual.
The category of ‘public official’ is referred to in French legislation as ‘the person exercising a public office’. It shall be extensively construed under criminal law.
The category encompasses public servants together with persons holding public authority, entrusted with a public service mission or vested with a public elective mandate. As an example, a French notary is considered as a ‘public official’ (Cass. Crim., 11 Oct. 1994, n° 92-81.724). NB: This category is broader than the category of politicians subject to obligations to disclose assets and interests in accordance with the Act 2013 on the Transparency in the Public Life.
The distinction between Public and Private Corruption results essentially in the difference of the main penalties’ quantum incurred. The status of public official justifies heavier sentences. While public Corruption exposes its perpetrators to a penalty of 10 years' imprisonment and a fine of 1 million euros, private Corruption exposes its perpetrators to a penalty of five years' imprisonment and a fine of 500,000 euros.
Please also note that Jurisdictional Corruption is the subject of a specific criminal offence under article 434-9 of the Criminal code.
The SCC distinguishes between bribery of public officials, foreign public officials and private individuals.
Public officials within the meaning of the bribery and corruption provisions are officials and employees of a public administrative authority or of an authority for the administration of justice as well as officially appointed experts, translators or interpreters, arbitrators or member of the armed forces, and any individuals fulfilling a public function for Switzerland, a foreign state or an international organization. Hence, under Swiss law a very broad definition of ‘public officials’ applies, which includes categories of individuals that may not be considered government officials elsewhere, potentially including in particular employees of state-owned or state-controlled enterprises.
In practice, the Swiss courts as well as the OAG and PPO apply a very broad interpretation when assessing who qualifies as an official. The authorities rely on a 'functional' notion, based on which anyone in a position to influence business dealings with states or state-owned or controlled entities is deemed to be a foreign official. This is particularly relevant in the context of bribery of foreign officials.
In principle, the same rules apply to the bribery of public officials and private persons. The offence consists in offering, promising or giving an individual an advantage for an act or omission that is contrary to his or her duties or within his or her discretion. In addition, a connection between the granting of the advantage and the official function or, in case of private bribery, a connection to the employment or business activity is required. However, the giving or accepting of undue advantages given not in exchange for an act or omission in breach of a duty or a discretionary decision is not an offence in the private sector.
Bribery of public officials and private persons are prosecuted ex officio, with the exception of minor cases of private bribery that are only prosecuted upon the request of an injured party.
The FCPA prohibits the bribery of a foreign public official and does not reach bribery of a private person unless that private person is acting on behalf of a foreign official. A ‘foreign official’ is defined as ‘any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organisation, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organisation’. 15 USC section 78dd-1. The FCPA does not distinguish between low-ranking and high-level officials of foreign governments—any such foreign government employee or official may fall within the definition of ‘foreign official’.
Because ‘foreign official’ includes those acting on behalf of any foreign governmental ‘department, agency, or instrumentality’, the term has been interpreted broadly by US enforcement authorities to include employees and agents of state-owned enterprises. DOJ and SEC, A Resource Guide to the U.S. Foreign Corrupt Practices Act at 20 [2012, updated 2015]. To determine whether a foreign entity is an ‘instrumentality’ of a foreign government under the FCPA, a fact-specific inquiry is made into whether the government controls the entity and whether the entity performs a government function. In United States v. Esquenazi, 752 F3d 912 (11th Cir. 2014), the US Court of Appeals for the Eleventh Circuit sought to determine the contours of the term ‘instrumentality’ in the FCPA and provided a non-exhaustive list of factors to consider.
- Whether the government controls the entity
- How is the entity formally designated by the foreign government?
- Does the foreign government own a majority interest in the entity?
- Can the foreign government hire and fire the entity’s principals?
- Do the entity’s profits, if any, go directly into the foreign government’s fisc?
- Does the foreign government fund the entity, if necessary?
- Whether the entity performs a government function
- Does the entity have a monopoly over the function it carries out?
- Does the government subsidize the costs associated with the entity’s provision of services?
- Does the entity provide services to the public at large in the foreign country?
- Do the foreign government and the public perceive the entity to be performing a governmental function?
United States v. Esquenazi, 752 F3d 912, 926 (11th Cir. 2014), cert. denied, 135 SCt 293 (2014); accord United States v. Duperval, 777 F3d 1324 (11th Cir. 2015).