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Am I subject to the FCPA, UK Bribery Act, or French, German or Greek criminal code?

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Am I subject to the FCPA, UK Bribery Act, or French, German or Greek criminal code?

At a Glance…

Regulators across the globe are adopting more aggressive measures to tackle corruption in their territories. However, cracking down on corrupt practices is no longer a purely domestic concern, and many businesses now find themselves subject to multiple, and sometimes competing, anticorruption laws. In this alert, our lawyers explain the reach of the U.S. Foreign Corrupt Practices Act (FCPA), UK Bribery Act, and French, German and Greek criminal codes.

This is the first alert in our series, From the FCPA to the UK Bribery Act – Your key questions about global anticorruption laws answered. Over the next few weeks, members of our global regulatory & investigations team will answer your most important questions about anticorruption laws in the U.S., UK, France, Germany and Greece. Next up, we will explore what the FCPA, UK Bribery Act, and French, German and Greek criminal codes mean for your dealings with third parties.

Authors:  Brad Bolerjack, Brian Durcan, Daniel Kadar, Pierre-Ceols Fischer, Rolf Hünermann, Philip Schmidt, Christina Nikiforaki and Anthony Poulopoulos

Capability: Regulatory & Investigations;White Collar Criminal Defense & Investigations

Am I subject to the FCPA?
The FCPA anti-bribery provisions broadly apply to the following three categories of entities and individuals:

“issuers” and their officers, directors, employees, agents, and stockholders (15 USC 78dd-1);

“domestic concerns” and their officers, directors, employees, agents, and stockholders (15 USC 78dd-2); and

certain other persons and entities acting under the territorial jurisdiction of the United States (15 USC 78dd-3).

In “issuer” is generally defined as any company that issues stock on a securities exchange, or in the over-the-counter market, in the United States and is required to file reports with the U.S. Securities and Exchange Commission (15 USC 78l; 15 USC 78c(a)(8); 15 USC 78o(d)).

A “domestic concern” is generally defined as: “(A) any individual who is a citizen, national, or resident of the United States; and (B) any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship that has its principal place of business in the United States, or which is organized under the laws of a State of the United States or a territory, possession, or commonwealth of the United States” (15 USC 78dd-2(h)(1)).

Finally, the United States asserts broad territorial jurisdiction over persons and entities that do not qualify as “issuers” or “domestic concerns” where the conduct of such persons or entities directly or indirectly furthers a corrupt payment in violation of the FCPA. The Department of Justice takes an expansive view of its territorial jurisdiction. Prosecutions have included both foreign and domestic defendants for violating the FCPA criminal anti-bribery provisions, whether the conduct occurred in the United States or abroad, provided that a sufficient link to the United States exists to confer jurisdiction.

Am I subject to the UK Bribery Act?
You are subject to the UK Bribery Act if:

As regards the offense of giving a bribe, being bribed, or bribing a foreign public official:

You are a person or corporate or unincorporated body located anywhere in the world and you commit any act or omission in England and Wales, Scotland or Northern Ireland which forms part of such offense.

You commit any act or omission outside the United Kingdom which would form part of such an offense if done or made in the United Kingdom, and have a close connection with the United Kingdom, meaning you are:

— A British citizen;

— A British overseas territories citizen;

— A British national (overseas);

— A British overseas citizen;

— A person who under the British Nationality Act 1981 was a British subject;

— A British protected person within the meaning of that Act;

— An individual ordinarily resident in the United Kingdom;

— A body incorporated under the law of any part of the United Kingdom; or

— A Scottish partnership.

As regards the offense of failing to prevent bribery by a commercial organization, you are subject to the UK Bribery Act if you are:

A body incorporated or partnership formed in the United Kingdom and carrying on a business anywhere; or

A body incorporated or partnership formed anywhere and carrying on a business, or part of a business, in the United Kingdom.

Am I subject to French anticorruption laws?
You will be subject to French anticorruption laws if:

Any of the acts of corruption constituting the criminal offense of which you are accused have been committed in France (Article 113-2 of the French criminal code);

The victim is a French national (Article 113-7 of the French criminal code);

The acts were committed in a foreign jurisdiction and punished as such, and you are a French national (Article 113-6 of the French criminal code); or

Corruption has taken place relating to a foreign or an international public official, and you are a French resident or carry out all or part of your economic activity in France (Article 435-6-2 of the French criminal code).

Am I subject to German anticorruption laws?
Under German criminal law, only natural persons are capable of committing criminal offenses. Accordingly, legal persons are not subject to the German Criminal Code (Strafgesetzbuch – StGB) and cannot be criminally liable under it.

Legal entities, however, may be fined under the German Act on Regulatory Offences (Ordnungswidrigkeitengesetz – OWiG) for crimes and/or regulatory offenses committed by their organs, board members, authorized representative shareholders or management-level employees (section 30 OWiG). In this context, German law strictly distinguishes between penalties and fines – only the latter may be imposed on legal entities. Fines of up to €10 million may be imposed.

There is ongoing discussion in Germanyabout the establishment of a corporate criminal law.A legislative procedure was started but this was recently suspended. However, as several European countries already have a corporate criminal law in place, it is likely that Germany will follow suit. This law will likely include provisions imposing penalties on companies for the offenses committed by their representatives.

Am I subject to the Greek Criminal Code?
Under Greek criminal law, only natural persons can be criminally liable. Greek criminal statutes are enforced for all offenses committed on Greek territory, even if committed by foreign nationals. Relevant offenses for which a Greek or foreign national may be held liable under the Greek criminal code (GCC) are as follows:

Passive bribery of a public official (article 235, GCC)
Scope
Requesting or receiving, directly or indirectly through third persons in favor of oneself or others, benefits of any nature or accepting a promise of such benefits, in order to act or omit to act in relation to or in breach of one’s public duties; orRequesting or receiving in favor of oneself or others a property-related benefit by taking advantage of one’s capacity as a public official.
Applicable offenses

Any act of bribery related to both domestic and foreign public officials, judges and political functionaries, such as public officials and employees from foreign countries, officials or employees of any public international or transnational organizations of which Greece is a member and EU organizations headquartered in Greece, foreign judges, jurors, arbitrators and members of the Court of Justice of the European Union, members of the parliament of a foreign country and members of the European Parliament or the European Commission.

Criminal sanctions
Individuals

Up to five years’ imprisonment and a fine.

If the act is committed in breach of one’s duties: up to 10 years’ imprisonment and a fine.

Active bribery of public officials (article 236, GCC)
Scope
Offering, promising or giving to a public official, directly or indirectly through third parties in favor of oneself or others, benefits of any nature to induce the public official to act in breach of, or omit to act in accordance with, their public duties, whether in the past, present or future.
Applicable offenses

Acts of bribery related to both domestic and foreign public officials, judges and political functionaries, such as public officials and employees from foreign countries, officials or employees of any public international or transnational organizations of which Greece is a member and EU organizations headquartered in Greece, foreign judges, jurors, arbitrators and members of the Court of Justice of the European Union, members of the parliament of a foreign country, and members of the European Parliament or the European Commission.

Criminal sanctions
Individuals

Imprisonment or a fine. If the bribed officials acted in breach of their duties, the act is considered a felony punishable with up to eight years’ imprisonment and a fine.

Seizure of all assets and financial gains.

Bribery in the private sector (article 396, GCC)
Scope
Providing or promising to provide benefits to an individual working in the private sector to induce them to act in violation of their professional obligations, or the individual’s solicitation or acceptance of such benefits.
Criminal sanctions
Individuals

Up to one year’s imprisonment and a fine.
Money laundering
Criminal sanctions
Individuals

Imprisonment from one to six years and a fine ranging from €10,000 to €1 million depending on the nature of the predicate offense (misdemeanour or felony)

If the offense is committed by an employee of an entity required by law to carry out specific anti-money laundering measures or the predicate offense relates to the passive or active bribery of public officials, political functionaries or judges: five to 15 years’ imprisonment (even if the predicate offense is a misdemeanor) and a fine ranging from €30,000 to €1.5 million.

If the offense was committed repeatedly or as a profession, or related to organized crime or terrorist activities: a minimum 10 years’ imprisonment (with a maximum sentence of 15 years) and a fine ranging from €50,000 to €2 million.

Reed Smith regulatory & investigations team
Our global team of more than 50 white collar crime defense lawyers concentrate their practices almost solely on helping our clients to manage fallout from the FCPA and UK Bribery Act. We provide seamless cross-office support and leadership in key jurisdictions and local resources as needed in affected regions. We regularly provide bespoke compliance solutions and defend corporate clients and their senior executives in all phases of criminal investigations and prosecutions.

You can find out more about our team and discover more of our thought leadership by going to our FCPA and Bribery page.

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