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Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
Articles 246 to 249 of the Criminal Code concern active and passive bribery. The instigating party is considered to have committed active bribery, whereas the receiving party is considered to have committed passive bribery.
Corruption and bribery provisions apply not only to public offices and persons holding public authority, but also persons who manage or work in the private sector.
The following persons and offices are explicitly targeted by the Law of February 13 2011:
- persons holding public authority;
- public officials or agents entrusted with an elective public mandate (ie, politically exposed persons) or public service mission, including from another state;
- EU officials and institution staff; and
- international organisations and magistrates, such as individuals managing or working in a private sector entity.
Article 247 of the Criminal Code defines ‘active bribery’ as follows:
“Any person unlawfully proposing or giving directly or indirectly an offer, a promise, a donation, a gift or an advantage of any kind to persons holding public authority, or public officials, or persons entrusted with a mission of public service, or agents entrusted with an elective public mandate, with the objective of getting this person to:
1° carry out or abstain from carrying out an act relating to their office, duty, or mandate or facilitated by their office, duty or mandate,
2° abuse their real or alleged influence in order to obtain from a public entity or public administration any distinction, employment, contract (public procurement), or any other favourable decision, is subject to a prison sentence of five to ten years and a fine of 500.- Euro to 187.500.- Euro.”
Thus, according to Article 247, a bribe consists of an offer, promise, donation or gift or an advantage of any kind, directly or indirectly given to (active bribery) or received by (passive bribery) the persons described in the article.
Article 248 of the Criminal Code deals with influence peddling, which entails soliciting or receiving a bribe to abuse real or alleged influence in order to obtain an advantage from a public entity or administration. The key components of this offence are similar to those regarding bribery defined in Article 247.
Under Article 249 of the Criminal Code, any person holding public authority or carrying out a service mission, or any person holding a public electoral mandate, who unlawfully solicits or receives a bribe from a person who benefits from the improper act will be punished by imprisonment for five to 10 years and a fine of between €500 and €187,500. The same provision applies to persons offering or giving a bribe.
Article 250 of the Criminal Code applies bribery provisions to judges, arbitrators, experts and, in general, any person sitting in judicial matters appointed by a court or the parties.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
Article 10(3) of the Law of April 16 1979 concerning the general status of public officers and employees states that public employees cannot solicit, accept or be promised by any source – directly or indirectly – any material advantages which are likely to put them in conflict with the obligations imposed on them by law. The Law of April 16 1979 explicitly refers to Articles 240 onwards of the Criminal Code.
On February 28 2014 a code of ethics for government members came into force and was later abolished by the Decree-Law of December 28 2015. This decree-law provides a coordinated behavioural code for government members.
Section 8 of the decree-law deals with gifts, offers of hospitality and honours and distinctions given to government employees. In this respect, the decree-law makes a clear distinction between gifts and donations received by public nationals or foreign entities and gifts and donations received by private entities.
Article 15 of the decree-law provides that gifts and offers of hospitality addressed to members of the government can be accepted when they:
- originate from public, national or foreign entities – except for persons or public entities whose activity is mainly based in a competitive sector according to private law regulations; and
- are consistent with the common practice and general rules of diplomatic courtesy.
This authorisation does not account for gifts and offers of hospitality which are likely to influence government members or their decision making.
Article 16 provides that gifts or offers of hospitality addressed to members of the government can be accepted when they:
- originate from persons, private entities or public entities active in a competitive sector according to private law regulations;
- are consistent with the general rules of courtesy; and
- have an approximate value that does not exceed €150.
This authorisation does not include gifts and offers of hospitality which are likely to influence government members or their decision making.
The decree-law further indicates that, if a gift or offer of hospitality which does not fulfil the abovementioned criteria has been accepted or is to be accepted, the prime minister must be notified of the donor’s name and the date of the occasion on which the government member received the gift.
Further, the decree-law specifies that government members are free to accept gifts or offers of hospitality in the scope of their private relations and from their usual close entourage which have no connection with their public function.
As far as is known, no similar provisions concerning behavioural rules regarding corruption and bribery in the private sector exist, so Articles 240 and following of the Criminal Code must be observed.
What are the rules relating to facilitation payments?
Luxembourg is a signatory of the Organisation for Economic Cooperation Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997. As opposed to many other states (eg, Switzerland and the United States), Luxembourg has not adopted the facilitation payments exception, which would allow for certain payments to be permitted if they fall under this exception.
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