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Legal Eye: Bribery laws

  • Poland
  • Other

12-12-2011

A retrospective on 2011 could start with market uncertainty over the future of the euro and end with Poland’s euphoria about its fortunate group draw for the Euro 2012 soccer championship. This retrospective, however, would not be complete without a discussion regarding bribery. Recently, the Polish Football Association (PZPN) found itself involved in the so-called “tape scandal,” relating to video footage allegedly showing the president and general-secretary involved in corrupt ion.

Background

Legislative efforts to curb bribery started in the 1970s with the US introducing the Foreign Corrupt Practices Act (FCPA). This granddaddy of bribery legislation still serves as a benchmark for anti-bribery laws today. In July, the UK Bribery Act 2010, which introduced one of the strictest anti-bribery regimes in the world, came into effect.

Discussions about the UK Bribery Act 2010 often start by indicating how the UK’s law has a broader reach than the FCPA. The FCPA focuses on bribery of public officials by US companies or their subsidiaries around the world. It relates to both the giving and accepting of bribes to influence decisions or to obtain or maintain business activities. The term “public officials” refers broadly to all those who could be in a position to represent the government, including current officials, those acting on behalf of a government (for example, advisers on a public tender), candidates for office and officers of political parties.

A key exception under the FCPA allows for certain “facilitation payments.” These are viewed as minor “greasing-the-wheel” payments to accelerate business matters. An example cited is a small payment to a custom official to get cargo released. The UK Bribery Act 2010 takes a more restrictive approach. It does not allow for facilitation payments. It also extends its reach to bribery in the private sector.

Various types

The classic forms of bribery are the giving (active) and accepting (passive) of bribes. While the “tape scandal” involves allegations of the improper passing of monetary payments, bribery can involve anything of value.

The UK Bribery Act 2010 adds a new category by creating liability for companies if they “fail to prevent bribery.” In other words, companies need to be proactive on fighting corruption. However, the Bribery Act recognizes a defense if a company has “adequate procedures” in place to minimize the risk of bribery.

Polish rules

Poland does not have its own separate anti-bribery law. Instead, various provisions of the Criminal Code address several forms of public and private corruption. With respect to giving and receiving bribes, Polish law generally follows the classic definition. The elements of a bribe are the giving or receiving of a financial or personal benefit involving a public official with the intent to obtain an advantage. For a claim of corruption, it is sufficient that a benefit was offered, but the advantage does not have to be received.

With respect to the public sector, Polish law also criminalizes influence-peddling and abuse of official position. The latter refers to a situation of taking an extraordinary action or failing to act in the public or private interest in order to receive a financial benefit.

With respect to the private sector, the Criminal Code prohibits abuse of trust, which also involves misuse of a position held, in two different scenarios. The first relates to using authority granted for personal gain, while causing significant damage to the company.

The key to this crime is the term “significant,” which is defined as 200 times the national minimum wage. As of January 1, 2012, this threshold will amount to zł.300,000. The second looks to relationships with a company’s contractors. As an example, managers may not accept or demand personal or financial benefits from customers, suppliers or others, in exchange for preferential treatment. In all cases, Polish law provides for a potentially lengthy jail term for corruption.

Source: Judith Gliniecki, Warsaw Business Journal, 12th December 2011 

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