Einde inhoudsopgave
Corporate Social Responsibility (IVOR nr. 77) 2010/5.3.4.0
5.3.4.0 Introductie
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS363393:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Openbaar Ministerie - Beleidsregels, 'Aanwijzing opsporing en vervolging ambtelijke corruptie' [Public prosecutor's policy document re the prosecution of public corruption], 8 October 2002; 'GRECO Evaluation Report on the Netherlands on 'Incriminations (ETS 173 and 191, GPC 2) ',' adopted at its 38th Plenary Meeting, Strasbourg, 9-13 June 2008. Letter by the Dutch Minister of Justice to the Second Chamber of Parliament of 19 August 2008 re GRECO-evaluatie inzake de strafbaarstelling van corruptie [Evaluation of the criminalisation of corruption], at: http://www.justitie.nl/search.aspx?type=advancedSearch, visited on 23 November 2008. Ratification by the Netherlands of the Council of Europe Criminal Law Convention on Corruption took place on 11 April 2002; the Convention entered into force in respect of the Netherlands on 1 August 2002. The Netherlands has made reservations to Article 12 (trading in influence) and Article 17 (jurisdiction). The territorial application is limited to the Kingdom of the Netherlands in Europe (therefore not extending to the Netherlands Antilles or Aruba). On 16 November 2005, the Netherlands ratified the Additional Protocol to the Criminal Law Convention on Corruption of 15 May 2003; this entered into force in respect of the Netherlands on 1 March 2006. The same reservations apply. This Protocol extends the scope of the Convention to arbitrators in commercial, civil and other matters, as well as to jurors, thus complementing the Convention's provisions aimed at protecting judicial authorities from corruption. Countries which ratify this instrument will have to adopt the necessary measures to establish, as criminal offences, the active and passive bribery of domestic and foreign arbitrators and jurors.
Articles 177, 177a, 362, 363 DCrC.
Articles 178a and 364a DCrC. Article 178a DCrC reads: '1. With regard to Articles 177 and 177a, persons working in the public service of a foreign state or an organisation governed by international law are equated with [Dutch] public officials. 2. [...] 3. With regard to Article 178, judges of a foreign state or an organisation governed by international law are equated with [Dutch] judges.' Article 364a states: '1. With regard to Articles 361, 362 and 363, persons working in the public service of a foreign state or an organisation governed by international law are equated with [Dutch] public officials. 2. [. ] 3. With regard to Article 364, judges of a foreign state or an organisation governed by international law are equated with [Dutch] judges.'
Articles 178 and 364 DCrC.
Article 84 DCrC.
The Council of Europe Criminal Law Convention on Corruption and the OECD Corruption Convention have been incorporated in the Dutch Criminal Code (DCrC), effective as of 2002.1 In the Netherlands, fighting corruption is in the hands of the public prosecutor. The DCrC prohibits the bribery of domestic public officials.2 Like the FCPA, Dutch law also criminalises the bribery of foreign public officials. The elements of the offence of bribery of domestic public officials, and the applicable sanctions, as described below, apply accordingly to the bribery of foreign public officials.3 In both situations, special provisions apply to the bribery of and by judges.4 Under Dutch law, the definition of public officials' includes members of general representative bodies and public assemblies as well as all personnel of the armed forces; and 'judges' include arbiters and those who exercise administrative jurisdiction.5 Persons whose appointment as a public official is pending as well as former public officials generally also qualify as public officials. Dutch law does not recognise a general exception for facilitating payments as has been included in the FCPA, although the prosecutor can decide on a case-by-case base whether or not a small gift qualifies as a bribe.
Dutch criminal law distinguishes between active bribery (paying or offering a bribe) and passive bribery (receiving or soliciting a bribe). This section is organised in line with this distinction.