How is bribery defined?
Bribery & Corruption (2nd edition)
Different definitions of bribery under the current administrative law and criminal law. Moreover, the connotation and definition of bribery varies from criminal law and administrative law perspectives. From an administrative law perspective, in a broad sense, bribery refers to the act of offering, taking money or goods, or by other means, in violation of the fair competition principle, in order to provide or obtain transaction opportunities or other financial interests.
From a criminal law perspective, there are 10 bribery related crimes stipulated in the Criminal Law, which, generally speaking, forbids the act of offering a bribe to any state functionary and non-state functionary, and receiving such bribe. For example, any state functionary who, by taking advantage of his position, extorts money or property from another person, or illegally accepts another person's money or goods in return for securing benefits for the person, would be guilty of accepting bribes.
According to the provisions of the French criminal code:
- The offence of bribery broadly consists in offering money, services or any other advantage in order to influence the conduct of a person in a position of entrusted power;
- The offence of influence peddling defines the situation when a person who has real or apparent influence on the decision-making of a public official trades this influence in exchange for money, services or any other advantage.
For these two offences, under French law, both the person offering the bribe (active form), and the person receiving it (passive form) can be charged.
Firstly, the Criminal Code does not define the term bribery. The Criminal Code differentiates between offering and receiving a bribe, both in relation to business transactions (section 299 – 301 of the Criminal Code), officials (section 331 – 336 of the Criminal Code), voters and delegates (sections 108b and 108e of the Criminal Code) and the sports sector (sections 265c and 265d of the Criminal Code). Hence, there is no explicit or uniform definition of bribery in the Criminal Code.
Bribery of officials and within business transactions are commonplace. When a bribe takes place as part of a business transaction (sections 299 – 301 of the Criminal Code), it requires certain persons to demand a benefit and/or promise an employee or agent of business, a benefit. However, the owner of a corporate entity is excluded from criminal liability. These sections should protect free competition from undue influence.
Under sections 331 and 332 of the Criminal Code, a criminal offence in relation to receiving bribes, requires persons in exposed public positions to demand a benefit for violation of an official duty. The law aims at maintaining public trust and faith in the integrity of public officials. Therefore, sections 333 and 334 of the Criminal Code penalise offering bribes if the offender promises a benefit to persons in exposed public positions for the above mentioned reasons.
Bribery and corruption are often accompanied by other crimes such as fraud, tax evasion, money laundering, embezzlement and abuse of trust.
Bribery in the public sector (public officials) is an act of giving (or receiving) or promising (or accepting), directly or through third parties or intermediaries, unlawful benefits or gain to a public official for committing or omitting an act in the course of one’s duties or against one’s duties. The act of the public official maybe concluded or expected to be concluded in the future.
Bribery in the private sector is an act of giving (or receiving) unlawful benefits or gain directly or indirectly as an exchange for an action or omission contrary to one’s duties (as defined by law, contract, agreement etc.).
It is noted that under Greek Law the promise of a benefit, gain etc. constitutes bribery (even before the gain or benefit has been awarded).
Gains and benefits are not only cash/cash equivalents but also intangible benefits (e.g. promotion or favorable transfer to a better position). The unlawfulness of such gains/benefits is judged on an ad hoc basis. Generally, a benefit may be considered unlawful if it goes beyond the standards of proper social and/or professional conduct.
The term “bribery” is not defined in the 2018 Act but the essence of the act of bribery is captured in the provisions of the Act and the offences set out in Part 2 of the 2018 Act, which includes but is not limited to, the following offences:
Active and passive corruption
It is an offence to directly or indirectly corruptly offer, give, agree to give, request, accept, obtain or agree to accept a gift, consideration or advantage as an inducement to, or reward for or otherwise on account of, doing an act in relation to one’s office, employment, position or business.
‘Corruptly’ is defined under the 2018 Act and includes acting with an improper purpose personally or by influencing another person, whether:
- by means of making a false or misleading statement;
- by means of withholding, concealing, altering or destroying a document or other information; or
- by other means.
Active and passing trading in influence
It is an offence to directly or indirectly corruptly offer, give, or agree to give, a gift, consideration or advantage in order to induce another person to exert an improper influence over an act of an official in relation to the office, employment, position or business of that official.
Similarly, it is an offence to directly or indirectly corruptly request, accept, obtain, or agree to accept for one’s self or for any other person, a gift, consideration or advantage on account of a person promising or asserting the ability to improperly influence an official to do an act in relation to their office, employment, position or business.
Corruption in relation to office, employment, position or business
An Irish official who directly or indirectly does an act in relation to their office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for themselves or any other person, will be guilty of an offence.
It is also an offence for an Irish official to use confidential information obtained in the course of their office, employment, position or business for the purpose of corruptly obtaining a gift, consideration or advantage for themselves or for any other person.
‘Irish official’ includes members of Parliament, members of the judiciary, officers, directors and employees of public bodies and persons employed by or acting for or on behalf of the public administration of the state.
Giving a gift, consideration or advantage that may be used to facilitate an offence under the 2018 Act
It is an offence to give a gift, consideration or advantage to another person where the person knows, or ought reasonably to know, that the gift, consideration or advantage, or a part of it, will be used to facilitate the commission of an offence under the 2018 Act.
Creating or using a false document
It is an offence to directly or indirectly create or use a document that the person knows or believes to contain a statement which is false or misleading in a material particular, with the intention of inducing another person to do an acting relation to their office, employment, position or business to the prejudice of the last-mentioned person or another person.
It is an offence to directly or indirectly threaten harm to a person with the intention of corruptly influencing that person or another person to do an act in relation to their office, employment, position or business.
There is not a clear legislative definition of bribery. Nevertheless, it is possible to infer it from the relevant bribery–related provisions, for they share the same (or similar) elements. In particular, according to such provisions, it can be deemed to be bribery every act of giving, offering, promising, as well as every act of soliciting, receiving or accepting undue money or any other benefit as reward for some categories of people (e.g. public officials and directors of companies) to perform an improper conduct.
Under Belgian law, two types of bribery are prohibited, which can be defined as follows:
Passive bribery is the act whereby a person directly or through intermediaries, on its own behalf or that of a third party, requests, accepts or receives an offer, a promise or a benefit of any kind to perform certain acts or to refrain from performing certain acts.
Active bribery consists in proposing, directly or through intermediaries, to a person an offer, promise or benefit of any kind on its own behalf or that of a third party to have certain acts performed or to refrain from certain acts.
Depending on the purpose of the bribery and whether or not it concerns a public or private bribery, additional conditions may apply.
Under court precedents, ‘bribery’ is defined to be a benefit as unjust remuneration for the service of a public officer. Such ‘benefit’ is not limited to property benefits, but includes anything that satisfies one’s desires or demands. Hospitality, travel, and entertainment expenses can also be deemed as bribery.
Bribery is not defined expressly under the Bribery Act, Act No. 47 of 2016. However, the meaning can be deduced from Part II of the Act, which gives general bribery offences: receiving or giving a financial or other advantage to another person, who knows or believes that the acceptance of the financial or other advantage would itself constitute the improper performance of the relevant function or activity. In addition, the Anti-Corruption and Economic Crimes Act, Act No. 3 of 2003 defines corruption to also among other things mean bribery.
Under the FCPA, bribery is defined as:
(a) making a payment or offering, authorising or promising a payment or anything of value,
(b) to a foreign public official, foreign political party or party official, or candidate for foreign political office, directly or indirectly,
(c) with a corrupt intent,
(d) ‘for purposes of (i) influencing any act or decision of such foreign official in his official capacity, (ii) inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official’, (iii) ‘securing any improper advantage’ or (iv) inducing such foreign official to use his influence with a foreign government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality’,
(e) in order to obtain or retain business or direct business to any person.
Bribery is considered both as a serious administrative offence by the LGRA and as a criminal offence by the CPF.
Article 66 of the LGRA defines bribery as the act of promising, offering or giving public officials, directly or through third parties, any benefit outside of their official remuneration, whether money, values, movables or real estate, even by sale at a notoriously lower price according to market, donations, services, employment and other undue benefits for themselves or for their spouses, relatives or for third parties with whom they have professional, labor or business relations, or for partners or companies which the public officials or the aforementioned persons are part of; in exchange for said public officials to perform or refrain from performing an act related to their functions or another public official’s functions, or abuse their actual or alleged influence, for the purpose of obtaining or maintaining a benefit or advantage, regardless of the acceptance or receipt of the benefit by the public officials or the actual outcome.
Article 222 of the CPF defines bribery as the act of giving, promising or delivering any benefit to public officials, for them to perform or refrain from performing an act related to their functions, to their employment, position or commission.
In the terns of Article 5of the Brazilian Clean Company Act, acts of bribery to the detriment of national or foreign public officials or administrative bodies are defined as:
I. to promise, offer or give, directly or indirectly, an undue advantage to a public official or to a third party related to him/her;
II. to demonstrably finance, defray, sponsor or in any way subsidize the performance of the wrongful acts established in this Law;
III. to demonstrably make use of a third party, either an individual or a legal entity, in order to conceal or dissimulate the entities´ actual interests or the identity of those who benefited from the performed acts;
IV. with respect to public bidding and government procurement:
a) to thwart or defraud, through an adjustment, arrangement or any other means, the competitive nature of public bidding processes;
b) to prevent, disturb or defraud the execution of any act related to a public bidding process;
c) to remove or try to remove a bidder by means of fraud or by the offering of any type of advantage;
d) to defraud public bidding processes or bidding-related contracts;
e) to create, in a fraudulent or irregular manner, a legal entity with the purpose of participating in a public bidding process or of entering into a contract with the public administration;
f) to gain undue advantage or benefit, in a fraudulent manner, from amendments or extensions of contracts executed with the public administration without authorization in the Law, in the notice of the public bidding or in the respective contractual instruments; or
g) to manipulate or defraud the economic and financial balance of the contracts executed with the public administration;
V. to hinder investigations or inspections carried out by public agencies, entities or officials, or to interfere with their work, including the activities performed by regulatory agencies and by inspection bodies of the national financial system
Under the Crimes Act 1961, ‘bribe’ is defined to mean ‘any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect.’
In order for a ‘bribe’ to give rise to a crime, however, it must be given or offered ‘corruptly’ with a view to influencing the recipient to do something that they might not otherwise do and therefore receiving some improper gain. So for there to be criminal conduct there must be a corrupt payment and receipt of some financial or other benefit, or at least the prospect of this, accompanied by an intent to influence the recipient of the bribe.
Danish law does not have a definition of bribery as such. However, bribery is generally interpreted in line with the common definition of abuse of office or position for private gain.
In the national regulation a distinction is made between active corruption and passive corruption as an expression of the obligation assumed by Romania by adopting the Council of Europe Criminal Convention on Corruption (27 January 1999, ratified by Law No 27 of 16 January 2002), to ensure punishment of both forms.
In this respect, the passive bribery is defined by Art. 289 of the Criminal Code as ‘The action of the public servant who, directly or indirectly, for themselves or on behalf of others, solicits or receives money or other undue benefits or accepts a promise of money or benefits, in exchange for performing, not performing, speeding up or delaying the performance of an action which falls under purview of their professional duties or with respect to the performance of an action contrary to their professional duties.’
On the other hand, the active bribery is defined as “(1) The promise, the giving or the offering of money or other benefits in the conditions provided under Article 289 (i.e. directly or indirectly, for themselves or on behalf of others, offers or gives money or other undue benefits or promises money or benefits, in exchange for performing, not performing, speeding up or delaying the performance of an action which falls under purview of their professional duties or with respect to the performance of an action contrary to their professional duties)”
Bribery is defined widely under the PCA.
Section 5 of the PCA provides that it is an offence for anyone to:
"(a) corruptly solicit or receive, or agree to receive for himself, or for any other person; or
(b) corruptly give, promise or offer to any person whether for the benefit of that person or of another person,
any gratification as an inducement to or reward for, or otherwise on account of —
(i) any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed; or
(ii) any member, officer or servant of a public body doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body is concerned […]"
Section 6 of PCA also provides that it is an offence for an agent to corruptly accept or obtain any gratification in relation to the acts or performance of his principal. For example, this may involve an employee corruptly accepting or obtaining any gratification in relation to the acts of his company.
Further, sections 11 and 12 of the PCA provide that it is an offence to offer gratification to domestic public officials.
Under the PCA, “gratification” has a wide definition which includes both monetary and non-monetary benefits. Monetary benefits include “any gift, loan, fee, reward, commission, valuable security or other property or interest in property of any description, whether movable or immovable”. Non-monetary benefits include “any other service, favour or advantage of any description whatsoever”.
The law distinguishes between active and passive bribery.
Active bribery is an act whereby an undue advantage is offered, promised or granted for the commission or omission of an act that is contrary to duties or depends on the exercise of discretion. Passive bribery occurs when a person solicits, elicits a promise of or accepts an undue advantage, for his or her own benefit or for the benefit a third party, for the commission or omission of an act that is contrary to his or her duties or depends on the exercise of his or her discretionary powers. In the public sector, the act must relate to official activity; in the private sector, it must relate to the professional or business activity.
Additionally, with regard to Swiss public officials, the giving or accepting of undue advantages (gifts) that are offered, promised or granted not in exchange for a specific official act, but rather with a general view to the future execution of official duties, constitutes an offence. This covers payments intended to maintain relationships and facilitation payments.
However, advantages are not undue if they are allowed by staff regulations or when they are of minor value or in line with social customs. Examples for such permitted advantages are customary small Christmas presents to post office clerks, police officers or similar, modest entertainment of public officials on the occasion of a business meeting, or an appreciation gift for firefighters following their assistance.
A bribe is paid where a person receives, offers or gives a bribe either (i) intending that, as a consequence, a function should be performed “improperly”; or (ii) where the bribe is or amounts to a reward for “improper” performance.
The Bribery Act provides three examples of when a function would be deemed to have been carried out “improperly”:
a) The person performing it is expected to perform the function or activity in good faith, but does not
b) The person performing it is expected to perform it impartially, but does not
c) The person is in a position of trust, but breaches that trust
The types of functions that are covered by the Bribery Act are as follows:
a) Functions of a public nature
b) Activities connected with a business
c) Activities performed in the course of a person’s employment
d) An activity performed by or on behalf of a body of persons
A corporate or commercial organisation will also commit an offence under Section 7 of the Bribery Act, where a person “associated with” it bribes another person, intending to obtain or retain business for the organisation or to obtain or retain an advantage in the conduct of business for the organisation. This is a strict liability offence that can be committed in the UK or overseas. Note that:
- A person will be “associated with” the company for these purposes where the person acts on an organisation’s behalf. This could include an employee, agent or subsidiary of the organisation. Contractors, suppliers, joint venture entities and joint venture partners may also be associated persons.
- While there is a rebuttable presumption that an employee acts on behalf of his or her organisation, an individual’s association will be determined by reference to all relevant circumstances, not merely the relationship between the individual and the organisation.
- It is a defence for an organisation to prove that it had “adequate procedures” in place to prevent the bribery.
In addition, Section 6 of the Bribery Act includes a specific offence of “bribery of foreign public officials” (FPOs). Broadly, an offence will be committed where a person directly or through a third party offers, promises, or gives a financial or other advantage to an FPO in his capacity as an FPO (or to a third party at the FPO’s request) and intends to obtain or retain business or a business advantage.
For the purposes of the Bribery Act, an FPO includes an individual who: holds a legislative, administrative or judicial position of any kind; exercises a public function for or on behalf of a country or territory outside the UK or for any public agency or public enterprise of that country or territory; or is an official or agent of a public international organisation. Foreign political parties or candidates for foreign political office are not considered FPOs.
The offence is not committed where the FPO is either permitted or required by the written law applicable to the FPO to be influenced in his or her capacity as an FPO. Effectively, this is only likely to provide protection in the very limited circumstances where a written law explicitly permits or requires the payment to the FPO.
A company or another commercial organisation will also commit an offence where a person “associated with” it bribes an FPO, intending to obtain or retain business for the organisation or to obtain or retain an advantage in the conduct of business for the organisation. This is a strict liability offence that can be committed in the UK or overseas.
The Criminal Code defines bribery as ‘directly or indirectly, corruptly gives or offers to a person mentioned in Sections 119 or 120, or to anyone for the benefit of that person, any money, valuable consideration, office, place or employment in respect of anything done or omitted or to be done or omitted by that persona in their official capacity’.
The Supreme Court of Canada in R v. Hinchey, 1996 3 S.C.R. 1128 (SCC), stated the benefit offered must constitute a ‘material or tangible gain’. In determining whether something constitutes a ‘material or tangible gain’, courts should consider:
- The relationship between the parties (eg. whether they are business acquaintances or friends, whether such friendship was ongoing and the existence of previous reciprocal arrangements).
- The size or scope of the benefit.
- The manner in which the gift was bestowed.
- The official or employees' function in government.
- The nature of the giver's dealings with the government.
- The connection, if any, with the giver's dealings and the official or employee's job.
- The state of mind of the receiver and the giver.
(R v. Pilarnos, 2002 BCSC 1267.)
The CFPOA defines bribery, more broadly than the Criminal Code, as ‘directly or indirectly giving, offering or agreeing to give or offer a loan, reward, advantage or benefit of any kind’.
In Portugal’s legal order there are several different kinds of bribery offenses. Generally speaking, bribery can be defined when a person in a dominant position agrees to receive an undue advantage in exchange for provision of a service.
Bribery per se is defined by Article 363 of the PCC as whoever persuades or attempts to persuade another person, through a gift or promise of an equity or non-equity advantage, to falsely testify or to declare something false under oath – Articles 359 or 360 -, when these not being committed.
The crime of corruption involves a combination of several following elements: (i) an action or omission; (ii) practice of a lawful or unlawful act; (iii) the consideration of an undue advantage for him/her/itself or a third party.
Corruption can be active or passive depending on whether the act or omission is committed by the person who corrupts (active) or the person who allows him/herself to be corrupted (passive).
Passive corruption, as provided by Article 373 of the PCC, is defined as the promise, offer or giving, addressed to someone, directly or indirectly, of an undue advantage, for that same person or a third part or entity, in order that the person in question act or refrain from acting in the exercise of his or her duties.
Active corruption, as provided by Article 374 of the PCC, is defined as the solicitation or acceptance by someone, directly or indirectly, of an undue advantage, for that same person or another person or entity, in order that the person in question act or refrain from acting in the exercise of his or her duties.
The ACC defines active bribery as giving or offering any gift to a public official, either personally or through an intermediary, in order for him/her to do, delay or omit to do certain actions relating to his/her public duties or activities (art. 256).
The ACC also punishes active trading in influence, defined as giving a gift or anything of value to any person in order for him or her to make an unlawful use of his/her influence before a public official with the purpose of having such official acting, delaying or refraining from acting in relation to his or her duties (art. 258).
Passive bribery and passive trading in influence are committed by the public official receiving or accepting, directly or indirectly, money or any other gift or thing of value in any of the aforementioned circumstances. (ACC, arts. 256, 256 bis and 257).
The Argentine Criminal Code also considers an offense (different from bribery) to give or offer a gift to a public official in consideration to his/her office. To commit this “mere gift giving/offering” offense (“dádivas”), no specific quid pro quo is required -the sole giving or offering in consideration to the public post is enough for the offense to be completed (ACC, art. 259). The public officer who receives gifts in consideration for his/her public position is also criminalized (gift receiving).
Finally, the ACC also punishes active transnational bribery, defined as improperly giving, offering or promising, personally or through an intermediary, for own benefit or that of a third person, any gift to a public officer from a different state (understood as any person appointed or elected to perform a public function in any of the state’s levels or territorial divisions of government, or in any class of an body, agency or public company where said State exerts a direct or indirect influence) or international organization in order for him/her to act or delay an action in relation to his or her duties, or in order to use his/her influence in a commercial operation (art. 258 bis, ACC).
In Angola, bribery is not typified as a crime. In our jurisdiction, we only have the crime of corruption. Corruption can be active or passive. Passive corruption occurs when a person, directly or through a third party, with its consent, requests or accepts, in its own end or in benefit of a third party, any patrimonial or non-patrimonial advantage or the promise of an advantage, to execute any act or omission against the obligations that arise from the position the official occupy. Active corruption occurs when somebody, directly or through a third party, with its consent, gives or promises to an official or to a third party ,by indication or consent of the official, any patrimonial or non-patrimonial vantage.