Netherlands

Reviewed April 2015
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PUBLIC OFFICIALS
    Is there an offence of bribing public officials?
    • The law relating to bribery of public officials is set out in sections 177 to 178a and 362 to 364a of the Dutch Criminal Code (DCC).

      The DCC fails to give a single definition for the term public official. The Supreme Court of the Netherlands defines a public official as “a person who, under the supervision and responsibility of the government, has been appointed to a function which undeniably has a public character to carry out some portion of the powers of the Kingdom or its agencies.”  Whether this person is also considered a public official from an employment law perspective is irrelevant.

      The DCC distinguishes between active bribery and passive bribery. The term “active” relates to the conduct of the briber: making a gift or a promise to a public official or rendering or offering to render a service for a public official (sections 177 and 177a DCC). The term “passive” refers to the recipient (the person being bribed or allowing himself to be bribed): accepting a gift, promise or service (sections 362 and 363 DCC).

      The bribery of judges, a special category of public officials, is a separate offence, laid down in sections 178 and 364 DCC.

    What is the relevant test for each offence?
    • Bribing a public official with the intent of inducing him to perform a permitted or lawful act is a punishable offence, as is bribing a public official with the intent of inducing him to perform a non-permitted or unlawful act. The relevant test is whether the public official knows or should reasonably suspect that he has been given the gift in order to induce him to act or refrain from acting in a given manner, regardless of whether or not this is contrary to the requirements of his office.

      For each instance of suspected bribery, the Public Prosecutor must prove a direct connection between the gift, promise or service (the means for bribery) and the act or omission by the public official in the execution of his duties (the consideration). The mere acceptance of or request for a gift, promise or service, for no consideration, is in itself not a punishable offence. The making or accepting of gifts can constitute a punishable offence before the intended consideration has actually been provided: under sections 362 and 363 DCC the relevant test is whether, at the moment of accepting the gift, the public official knows or should reasonably suspect that he has been given the gift in order to induce him to act or refrain from acting in a certain manner in the future. Also, the gift does not necessarily have to relate to a specific consideration. The mere attempt to “influence” a business relationship within the context of bribing public officials also constitutes a publishable offence.

    Can corporates and individuals commit the offence?
    • Under section 51 DCC, criminal acts can be committed by legal entities and by natural persons. If a legal entity is deemed to be liable for an offence, the Public Prosecutor may seek to prosecute the legal entity and/or the natural persons in charge of the alleged criminal conduct.

      If criminal prosecution is initiated against a legal entity, one must always consider whether acts of natural persons involved with the legal entity can be reasonably attributed to the legal entity. Whether an alleged criminal offence is considered to be committed by a legal entity depends on four criteria that have been developed through case law. These criteria are summarised as follows:

      it concerns an act or omission of someone who is, directly or indirectly, employed by the legal entity,

      the behaviour is conducive to the legal entity in operating its business,

      the legal entity has controlling power over the (alleged criminal) actions that take place, and

      the legal entity must have – or must seem to have – accepted the possible criminal behaviour or past similar (criminal) behaviour.

      The third branch of the criteria entails that the legal entity must have had the opportunity to regulate the (prohibited) behaviour, for example, by giving instructions and guidelines. This is easily met by most legal entities, because normally it has control over the persons acting for and within the company.

      The final branch concerns company policy. If the legal entity has accepted the prohibited behaviour, which would be clear from its acts or omissions, or has a history of allowing such behaviour to occur, the fourth branch has been met. Not taking sufficient action against employees who are involved in prohibited behaviour can be a reason to assume acceptance on behalf of the company.

      The persons within the legal entity who have ordered, or are actually in charge of, the prohibited behaviour may only be prosecuted if the legal entity itself is liable for the prohibited behaviour on the basis of section 51 DCC. However, the Public Prosecutor may decide to prosecute only the natural persons in charge of the alleged criminal conduct. In that case, it must still be proven that the legal entity could have been successfully prosecuted.

    Does the offence have extra-territorial effect?
    • The DCC contains several provisions which attribute jurisdiction to Dutch courts. Pursuant to these provisions, the offence of bribery of a public official has a broad extra-territorial effect. The most common situations in which bribery of public officials can be prosecuted are:

      any person who bribes a public official (foreign or domestic) from within the Netherlands,

      a Dutch public official bribed abroad,

      any person bribed abroad, who is in the public service of an international institution, with its seat in the Netherlands,

      any person who bribes a Dutch public official abroad,

      a Dutch citizen who bribes a public official, foreign or otherwise, abroad, and

      a Dutch public official or the person in the public service of an international institution with its seat in the Netherlands who commits the offence of bribery abroad.

    Are there any exceptions or defences?
    • There are no general exceptions or defences. Defences can be raised based on establishing the necessary facts and intention.

    What are the penalties?
    • Bribery of a public official, whether in order to induce him to act contrary to the requirements of his office (section 177 DCC) or not (section 177a DCC), is punishable by a maximum prison term of four years and/or a maximum fine of (for private persons) €81,000 or (for legal entities) €810,000.

      A public official who receives or accepts a bribe contrary to the requirements of his office (section 363 DCC) is punishable by a maximum prison term of four years and/or a maximum fine of €81,000. If the public official is afforded specific authority1 by virtue of his office, the offence is punishable by a maximum prison term of six years.

      A public official who receives or accepts a bribe to induce him to act in a manner not contrary to the requirements of his office (section 362 DCC) is punishable by a maximum prison term of two years and/or a maximum fine of €81,000. If the public official concerned is afforded the above mentioned specific authority by virtue of his office, the maximum prison term is four years.

      The court may also impose deprivation of the right to hold certain positions, to serve in the armed forces, the right to be a lawyer or a court-appointed administrator. Upon conviction, the court may also impose a penalty of forfeiture (verbeurdverklaring) (section 33 DCC) in addition to any other penalty.

      Dutch law does not include a reference to mandatory minimum fines. The Dutch Criminal Code allows the courts to convict a person/legal entity without imposing any kind of sentence at all. The court may also order the confiscation of illegal gains.


      1. The relevant section of the law includes an exhaustive list of public officials having specific authority. They are: Ministers, State Secretaries, Queen's Commissioners, Members of a Provincial Executive, Mayors or Aldermen or members of a general representative body.

    This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.