The fight against corruption is a priority for the Dutch government. The anti-bribery provisions of the Dutch Criminal Code have come to be applied much more broadly over the past decade. Public interest in anti-bribery investigations is huge, not just when it comes to corruption proceedings against corporates, but also when such proceedings involve politicians and business people. By focusing more on anti-corruption measures, the Dutch government is attempting to counter international criticism that it is lax in fighting corruption. With this in mind, any person who is accused of corruption deserves to be represented actively and with due care.
What is (international) corruption?
But what is corruption exactly? The Dutch Criminal Code uses the term ‘omkoping’, which translates as bribery. This refers to a person abusing their position or role for their own benefit. The Code distinguishes between corruption of civil servants and persons other than civil servants, and between passive and active corruption.
Any natural person or legal entity offering a gift or a service, or making a promise, to a civil servant with a view to inducing them to undertake or refrain from undertaking an act is guilty of a criminal offence under Section 177 of the Dutch Criminal Code (‘bribing a civil servant’). For this to qualify as a criminal offence, it is irrelevant whether or not the civil servant accepted the gift.
Any civil servant who accepts such a gift, promise or service in the knowledge that it is meant to induce them to undertake or refrain from undertaking an act is also considered to commit a criminal offence under Section 363 of the Dutch Criminal Code (‘passive bribery of a civil servant’). International corruption comes under these provisions as well. The Dutch Public Prosecution Service may, for instance, decide to prosecute Dutch natural persons or legal entities for bribing foreign civil servants.
Bribing persons other than civil servants also qualifies as a criminal offence under Section 328ter of the Dutch Criminal Code. This would involve any person who, either in the service of their employer or acting as an agent, offers a gift, promise or service to another person in consideration for undertaking or refraining from undertaking an act in violation of good faith. The gift, promise or service is meant to induce the other person to act in a certain way. The person accepting this gift while knowing why it was made and thereby acting in violation of good faith, is also considered to commit a criminal offence under Section 328ter of the Dutch Criminal Code.
These anti-corruption provisions are worded broadly, which results in a rather sizeable grey area. That is why, in corruption proceedings, the facts should be scrutinised with extreme care. Doing so will prevent the meaning of the term ‘corruption’ in common parlance from seeping into its legal interpretation. A person or an entity cannot be convicted unless the facts make up one of the criminal offences defined in the law. Clearly, we should avoid the heightened focus on anti-corruption measures ever leading to a lack of due care in applying the safeguards that govern the criminality of corruption, or incorrect application of those safeguards.
In addition to having criminalised corruption, the Dutch government is also fighting corruption through tax legislation (link to page in Dutch)). Bribes (including gifts, promises or services as described above) do not qualify for tax relief, for instance, and the tax authorities may question the arm’s length nature of specific payments.
Please do not hesitate to contact us if you have any questions about corruption, if you are suspected of an act of corruption or if you are suffering tax consequences due to a suspicion of corruption. We are here to help.
Contact our specialists
J.N. (Judith) de Boer
G.M. (Mariëlle) Boezelman
J.R.J. (Judith) Gijsen
L.M. (Luce) Smithuijsen
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