Besides public bribery involving public officials, i.e. a person who is a depositary or agent of public authority, or who is entrusted with a public service mission, or who holds a public elected office, including from other states, EU officials and in general the staff of the EU institutions and international organisations and magistrates, Luxembourg law also has the offence of private bribery, involving private individuals.
A bribe can be generally defined as an offer, promise, donation, present or advantage of any kind given or received, directly or indirectly to induce or influence the action or influence of a person.
The Luxembourg criminal code defines more specifically private bribery in articles 310 and 310-1 as follows:
Article 310 criminal code:
“Is punishable by imprisonment of between one month and five years and a fine of between EUR 251 and EUR 30,000, the fact that a person who is a director or manager of a legal person, or an agent or employee of a legal or natural person, solicits or accepts to receive, directly or through intermediaries, an offer, a promise or an advantage of any kind, for himself or for a third party, or accepts the offer or promise, to do or refrain from doing an act in his capacity or facilitated by his capacity, without the knowledge or authorisation, as the case may be, of the board of directors or the general meeting, the principal or the employer.”
Article 310-1 criminal code:
“The same penalties shall apply to any person who offers or gives, directly or through an intermediary, to a person who is a director or manager of a legal person, or an agent or employee of a legal or natural person, an offer, promise or advantage of any kind, for himself or for a third party, or makes such an offer or promise, in order to do or refrain from doing an act in his capacity or facilitated by his capacity, without the knowledge or authorisation, as the case may be, of the board of directors or the general meeting, the principal or the employer.”
Luxembourg law distinguishes between passive private bribery which is committed by the instigating party (covered by article 310 of the criminal code) and active private bribery which is committed by the receiving party (covered by article 310-1 of the criminal code). Both are punished by imprisonment for one month to five years and a fine of EUR 251 to 30,000.
The activities concerned are very broad and the circle of concerned persons who may commit the criminal offence of private bribery is wide and applies to any person who has a specific function in relation to a natural or legal person. However, a person acting on his own behalf is not within the scope of the offence.
The following acts are prohibited:
- soliciting or receiving (passive bribery), offering or giving (active bribery), directly or indirectly, an advantage for oneself or for another person in order to perform an act of the function or facilitated by the function
- without knowledge or authorisation as the case may be of the board of directors or the general meeting, the principal or the employer.
The authorisation distinguishes bribery in the private sector from bribery in the public sector. It is not subject to any particular form: it may be express, explicit or implicit.
All companies need to consider their risks of bribery and the measures needed to prevent any violation of the law. This is especially relevant for companies that operate internationally in areas where corruption is widespread.
Failing to prevent bribery puts at risk the company of prosecution if a person who represents the company engages in conduct which amounts to active bribery.
It is important to have internal governance rules and adequate internal control mechanisms in order to prevent persons associated to the company from active or passive bribery.
For example, specific care should be taken in relation to gifts, these are only permissible if they can be considered as being part of normal busines relations. If the gift or any other advantage was decisive in the decision making by the recipient, there is bribery.
Adequate internal controls should be implemented with guidelines designed to detect and avoid questionable conduct, including an internal whistleblower procedure that enables any employee to inform the company's management of their concerns.
Loyens & Loeff has extensive experience in criminal law matters and we would be pleased to assist you in implementing internal control mechanisms to avoid the risk of bribery.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.