5.3.4.4 Sanctions

Documentgegevens:

Mr. T.E. Lambooy, datum 17-11-2010

Datum: 17-11-2010
Auteur: Mr. T.E. Lambooy
JCDI: JCDI:ADS370625:1
Vakgebied(en): Ondernemingsrecht (V)

The maximum sentences for active and passive bribery are comparable to those which are applicable to other serious financial and economic offences in the Netherlands and, in the case of passive bribery, other offences involving 'abuse of office' or 'malfeasance in office.' For example, embezzlement1 carries a maximum sentence of three years imprisonment, and fraud2 and intentional money laundering3 carry a maximum sentence of four years imprisonment. The maximum prison sentence for offences involving 'abuse of office' or ' malfeasance in office,' such as the embezzlement offunds while holding public office and the forgery of books or registers is six years and three years imprisonment respectively.4 Accounting fraud, including false statements in the annual accounts, can be penalised by seven years imprisonment, or a penalty of the fifth category (EUR 67,000).5 In respect of offences committed by companies, higher penalties may apply (the sixth category, i.e. EUR 670,000). Notably, compared with the FCPA, Dutch law sanctions are fairly moderate. Furthermore, Dutch prosecutors do not yet seem to be very active in respect of bribery offences as has been noted by the OECD in its country monitoring reports over the last few years.6

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Article 321 DCrC.

Article 326 DCrC.

Article 420bis DCrC.

Articles 359 and 360 DCrC.

Articles 225-227 and 336 DCrC. In addition, the civil liability of directors can be based on Articles 2:9 and 2:139 DCC.

OECD, 'the Netherlands: Phase 2. Follow-up report on the implementation of the Phase 2 recommendation application of the convention on combating bribery of foreign public officials in international business transactions and the 1997 revised recommendation on combating bribery in international business transactions', 17 December 2009, p. 3, at: http:// www.oecd.org/dataoecd/61/59/41919004.pdf, accessed on 4 July 2010. As per October 2008, no foreign bribery cases had been brought before the Dutch courts. Nevertheless, the Dutch prosecuting authorities have concluded out-of-court transactions with seven companies for paying kickbacks in the context of the Oil-for-Food Programme in Iraq, although the offence charged was a violation ofsanctions legislation and not the foreign bribery offence. In addition, the Netherlands reported that 12 feasibility investigations and three preliminary investigations are underway in alleged foreign bribery cases, and that fourrequests formutual legal assistance have been sent out in respect of a foreign bribery offence.