On 30 March 2011, the UK Minister of Justice announced that the entry into force of the UK Bribery Act has been delayed until 1 July 2011. It was pronounced earlier that the Act would come into force this April. Simultaneously, the official Guidance notes on the UK Bribery Act were published.
The UK Bribery Act applies to both UK companies and foreign companies and has a broad scope. As such, the Act is also relevant for Dutch corporates and financials with business operations (such as a UK branch, plant or distribution network) in the UK, even if offences take place in a third country and are unrelated to UK operations.
In short, the Act reforms the criminal law to provide a new scheme of bribery offences that will enable courts and prosecutors to respond more effectively to bribery at home or abroad. The Act creates four offences:
- two general offences covering the offering, promising or giving of an advantage, and requesting, agreeing to receive or accepting of an advantage
- a discrete offence of bribery of a foreign public official
- a new offence of failure by a commercial organisation to prevent a bribe being paid for or on its behalf (it will be a defence if the organisation has adequate procedures in place to prevent bribery).
The Guidance notes provide practical guidance on procedures which organisations can put into place to reduce their exposure to bribery by people associated with them. The UK Minister of Justice has underlined that combating bribery requires a common-sense, proportionate and risk based approach.
The Guidance notes set out six principles for anti-bribery procedures: (1) proportionate procedures; (2) top-level commitment; (3) risk assessment; (4) due diligence; (5) communication; and (6) monitoring and review.
The detail of how Dutch corporates and financials with operations in the UK might successfully implement these principles into their existing compliance procedures will vary, but the notes emphasize that the outcome should be "robust and effective anti-bribery procedures".