1. THE UK BRIBERY ACT 2010
APPLICATION IN ROMANIA
BRCC Evening Briefing– 25 June 2014
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2. WHO IS AFFECTED? - 1
HOW DOES THE UK’S BRIBERY ACT 2010 AFFECT BUSINESS IN ROMANIA?
Individuals
Individuals are affected primarily if they are:
British;
OR
ordinarily resident in the UK.
These individuals can commit basic offences under the UK’s Bribery Act 2010 anywhere in the world.
Companies are subject to these provisions if they are incorporated in any part of the UK.
BRCC Evening Briefing– 25 June 2014
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3. WHO IS AFFECTED? - 2
Directors and senior officers
Companies which are subject to the UK’s Bribery Act 2010 have directors and senior officers.
Senior officers include managers.
Directors and senior officers of companies which are liable for basic offences are also liable if the offences were committed by the company with their consent or connivance, BUT
where acts constituting the primary offences take place outside the UK, only those with close connections with the UK will be potentially liable;
where the primary offences take place in the UK, all directors and senior officers will be potentially liable (i.e. including those who are not British / do not ordinarily reside in the UK).
BRCC Evening Briefing– 25 June 2014
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4. WHAT ARE THE BASIC OFFENCES?
BRIBING ANOTHER PERSON
Covers offering, promising or giving a financial or other advantage.
Intention to influence or reward, or knowledge that acceptance of the advantage will constitute improper performance.
BEING BRIBED
Covers requesting, agreeing to receive or accepting a financial or other advantage.
BRIBERY OF A FOREIGN PUBLIC OFFICIAL
Overlap with the basic offence of bribing another person, BUT there is no requirement of proof of an intention to bribe the foreign public official or of improper performance.
The foreign public official must not be permitted or required by applicable written law to be influenced.
BRCC Evening Briefing– 25 June 2014
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5. WHAT IS BRIBERY?
THE UK’S BRIBERY ACT 2010 CONTAINS STATUTORY TESTS OF WHAT IS, OR IS NOT, BRIBERY
THESE STATUTORY DEFINITIONS WILL BE AS INTERPRETED BY THE UK COURTS IN BINDING JUDICIAL DECISIONS
THE DEFINITIONS OF BRIBERY, CORRUPTION, TRAFFIC OF INFLUENCE, ȘPAGĂ, ETC. UNDER ROMANIAN LAW ARE NOT RELEVANT TO LIABILITY UNDER THE UK’S BRIBERY ACT 2010
The “elephant test”.
“FACILITATION PAYMENTS”
Difference of approach between the UK’s Bribery Act 2010 and US legislation.
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6. ANOTHER KEY DIFFERENCE
IN WHICH CIRCUMSTANCES IS BRIBERY AN OFFENCE UNDER THE UK’S BRIBERY ACT 2010?
Foreign public officials (obviously) – as with the US legislation – BUT ALSO:
Anyone performing an activity connected with a business, trade or profession;
Anyone performing an activity in the course of their employment; and
Anyone performing an activity on behalf of a body of persons (whether or not incorporated).
Where there is a position of trust OR there are expectations of:
good faith; or
impartiality.
BRCC Evening Briefing– 25 June 2014
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7. IMPROPER PERFORMANCE
Improper performance of a function or activity is assessed by reference to the expectations of good faith or impartiality or expectations of performance of a position of trust.
N.B. The test is what a reasonable person in the UK would expect.
Local practices, customs and opinions are to be disregarded unless they are:
permitted;
or
required
under local written law.
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8. LIABILITY FOR “ASSOCIATES”
A MAJOR CHANGE TO THE LAW – DISTINCT FROM THE BASIC OFFENCES
Failure of commercial organisations to prevent bribery.
Automatic liability if an “associate” commits bribery for your benefit (prosecution of the “associate” is not necessary for the offence to be committed).
Bribery means the basic offences under the UK’s Bribery Act 2010 BUT ignoring the requirement for a close connection to the UK.
Applies to:
companies incorporated in the UK; AND
companies (wherever incorporated) carrying on business (or part of a business) in the UK.
BRCC Evening Briefing– 25 June 2014
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9. WHO ARE “ASSOCIATES”?
“ASSOCIATES”
Perform services for you or on your behalf (in Romania?)
In any capacity
Test is determined by all of the relevant circumstances (with a presumption that employees perform services for you).
May be:
employees;
agents; or
subsidiaries; or
others?
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10. THE DEFENCE?
“ADEQUATE PROCEDURES”
Proportionate procedures;
Top-level commitment;
Risk assessment;
Due diligence;
Communication (including training);
Monitoring and review.
BRCC Evening Briefing– 25 June 2014
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11. MORE TO CONSIDER
The UK’s Bribery Act 2010 should not be considered in isolation.
There are the various secondary offences: conspiracy, procuring, aiding and abetting, etc.
Financial proceeds from business obtained or retained is likely to be treated as property obtained from unlawful conduct for money laundering purposes.
Potential civil liability to:
the state (disgorgement of profits); and
injured competitors.
Blacklisting.
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12. THANK YOU FOR YOUR ATTENTION!
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13. This briefing is not a substitute for formal legal advice; if you need further information, please contact:
Neil McGregor / Boiana Berchi / Simona Lehniuc
McGregor & Partners S.C.A. Str. Popa Savu no. 18, Sector 1, Bucharest 011433, Romania Telephone: +40 21 222 04 88 Fax: +40 11 312 16 46 E-mail:
neil.mcgregor@mcgregorlegal.eu boiana.berchi@mcgregorlegal.eu
simona.lehniuc@mcgregorlegal.eu
Website: www.mcgregorlegal.eu
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