Guide to European Anti-Bribery Laws

Corruption in government and business can occur everywhere; no country is totally immune. (See, for example, Transparency International’s Corruption Perception Index.) But in some countries and in some industries the demands for bribes and kickbacks or the promise of favours for favourable decisions are a serious reality. Governments that wish to halt or hinder corruption have passed anti-bribery and corruption legislation, proscribing not only corrupt acts that take place within their jurisdiction but also acts that take place ex juris if committed by their nationals or businesses incorporated within their jurisdiction. Britain’s Bribery Act 2010, which came into force last month, is likely the strongest law with such a foreign reach, followed closely by the much older but vigorously enforced US Foreign Corrupt Practices Act.

Of course, companies that do foreign business are not just followed, as it were, by their own nation’s laws but also find themselves governed by the law of the place where they transact. What might be customary or acceptable behaviour at home could turn out to be illicit abroad — or vice versa: mores, morals, and “must-not”s lie on a continuum, so it’s not always clear where on this slope one is located. To assist those who do business in Europe, London-based CMS Cameron McKenna LLP regularly updates its “Anti-bribery and corruption laws – An international guide” [PDF] for 31 European countries. This is not detailed legal analysis but, rather, a handy chart of principal comparison points. So, for example, one item asks “Would corporate hospitality be caught?” In Switzerland the answer is:

According to Article 322octies StGB advantages to public officials are not undue when allowed by staff regulations or when they are of minor value in accordance with social custom (e.g. if a company bears the costs of a business lunch with public officials)

In the Netherlands the answer “depends upon intent.” In other countries the answer is apparently, “Yes.”

Comparable Canadian legislation is the Corruption of Foreign Public Officials Act S.C. 1998, c. 34, which has not been as vigorously enforced as it might be, although there are signs this may be changing : see “Importance of Anti-Corruption Due Diligence for International Transactions” by Morrison, Dixon, Sosnow & Neave; and the more recent “Canada’s Corruption of Foreign Public Officials Act shows its teeth” by Paul Beaudry.