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THE UK BRIBERY ACT 2010 APPLICATION IN ROMANIA BRCC Evening Briefing– 25 June 2014 1/13
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THE UK BRIBERY ACT 2010
APPLICATION IN ROMANIA
BRCC Evening Briefing– 25 June 2014 1/13
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 2/13
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 3/13
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 4/13
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.
BRCC Evening Briefing– 25 June 2014 5/13
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 6/13
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.
BRCC Evening Briefing– 25 June 2014 7/13
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 8/13
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?
BRCC Evening Briefing– 25 June 2014 9/13
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 10/13
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.
BRCC Evening Briefing– 25 June 2014 11/13
THANK YOU FOR YOUR ATTENTION!
BRCC Evening Briefing– 25 June 2014 12/13
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:
Website: www.mcgregorlegal.eu
BRCC Evening Briefing– 25 June 2014 13/13
