On July, 1st 2011 the new UK “Bribery Act” entered into force: a law which establishes stricter rules aiming to prevent the crimes of bribery and corruption committed by individuals and companies.
Indeed, such law punishes, without distinction, the corruption both in the private and public sector, increasing the relevant sanctions (for individuals: imprisonment up to 10 years and fines, whilst for the companies; limitless fines) and, for the first time, introduces in the UK legal system a new kind of company’s liability for crimes committed by employees, agents, etc., similarly as what is provided for by the Italian Legislative Decree 231/2001.
According to section 7 of the new Bribery Act, the company may be held liable for bribery and corruption committed by any person associated to the company (i.e. anyone who performs services or acts on behalf of the company) intending:
- to obtain or retain business for the company;
- to obtain or retain an advantage in the conduct of business for the company.
In this framework it is could be useful to highlight that the Bribery Act applies both to UK companies and foreign companies which carry out their business (or a part of it) in the UK. This means that Italian and foreign companies that have agents, subsidiaries, branch offices or that carry out a business in the UK, could be held liable for the crimes committed by whoever acts on behalf of the company and can, therefore, be punished accordingly.
The companies - incorporated either in the UK or abroad, if they carry out a business in the UK - can avoid such liability, proving to have adopted “adequate procedures” designed to prevent people associated with the company from undertaking misconducts. In this respect, the UK Secretary of State published a guide for the companies aiming at specifying the principles and the characteristics of such procedures, in order to prevent any offence.
The six basic principles are:
- implementation of adequate procedures;
- top level commitment to prevent any offence;
- risk assessment;
- due diligence;
- communication (including training);
- monitoring and review of procedures.
Only the company which adopts a compliance program which is in accordance to governmental guidance can avoid these kinds of liability. Therefore, the Italian companies which carry out their business in the UK should adapt their Model ex Decree 231/2001 (i.e. compliance program) in order for it to also be compliant with this newly issued Bribery Act.