On October 1, 2020, the new Instruction on the Investigation and Prosecution of Foreign Corruption for the Dutch Public Prosecution Service ("DPPS") entered into force, indicating certain factors that play a role in determining the appropriateness of investigation and prosecution of foreign corruption cases.
Main Elements of the Instruction
The Instruction replaces the more elaborate instruction of 2013. Although the Instruction does not appear to represent a major shift in the DPPS's enforcement policy of foreign corruption cases, it does contain certain noteworthy elements.
The Dutch anti-bribery provisions (which prohibit both commercial and public bribery) have a wide scope. As to public bribery, any person who offers a gift, promise, or service to a public official for the purpose of inducing him to commit any official act or omission, and any public official who accepts or requests a gift, promise, or service when he knows or should reasonably suspect that a consideration is expected from him, is punishable under the Dutch Penal Code. Note that the legislature has explicitly chosen not to include a threshold value for an item to be considered a bribe; any gift, promise, or service, however small, can constitute a bribe. The legislator has left the setting of further limitations to the DPPS, which can do so by using its discretionary power to decline prosecution, or by issuing guidance such as the Instruction.
The Instruction emphasizes that the Netherlands is strongly committed to preventing and combatting foreign corruption and that the DPPS will in principle take action against any form of foreign corruption. However, the DPPS may decide not to (further) investigate and prosecute possible cases of foreign corruption. These decisions will be made on a case-by-case basis, but the Instruction lists several nonexhaustive factors that will be taken into account when assessing whether to investigate and prosecute allegations of foreign corruption in particular cases:
- the absolute or relative (e.g., to the size of the contract sum) size of the gift, promise, service, and/or consideration;
- whether bribery is a structural part of the manner in which a company conducts its business;
- the involvement of influential foreign public officials or politicians, or persons close to them;
- whether the bribes are directly or indirectly (e.g., through government support or subsidies) derived from Dutch government funds or funds intended for international development aid;
- the damage to the country where the public official was bribed;
- the extent to which competition is distorted;
- recidivism; and
- the possibilities of (further) investigation and the chances of successful prosecution.
Involving Third Parties
The Instruction states that it is a well-known fact that third parties, such as local agents, representatives, or consultants, are often used as intermediaries to bribe foreign officials. There should therefore be no misunderstanding that the involvement of such parties does not exempt (legal) persons from criminal liability. Dutch companies and organizations that are insufficiently alert to the nature and scope of the activities of third parties may therefore incur additional risk of becoming subject to criminal prosecution.
As mentioned, Dutch law does not provide for a difference between punishable and nonpunishable gifts. As such, so-called "facilitation payments" (i.e., small payments designed to expedite the performance of routine, governmental actions) are not separately recognized and can constitute bribes. The previous version of the Instruction stated, briefly put, that although facilitation payments are punishable, they would under certain circumstances (taken from the OECD Anti-Bribery Convention) not be prosecuted by the DPPS. Notably, this statement has been omitted from the current Instruction, which may imply that the DPPS is taking a tougher stance on facilitation payments.
Unlike the previous version, the new Instruction notes that, in the event that suspects voluntarily report foreign corruption committed by them or within their organizations, the DPPS will "take this into account in a transparent manner" in deciding how to resolve the case. Although, unlike other jurisdictions such as the United States, the DPPS has so far refrained from publishing any official guidance in relation to self-reporting, this statement can be seen as a small positive development in that respect. This trend is also apparent from the recently published new Instruction on Large Settlements.