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Specific offences and restrictions

Offences

What are the key corruption and bribery offences in your jurisdiction?

Bribery and some ancillary offences are addressed in Chapter 10 of the Penal Code.

Bribe-taking and bribe-giving Under Chapter 10, Section 5(a) of the Penal Code, an employee or person performing an assignment who receives, accepts a promise of, or demands an undue benefit for the performance of his or her duties is taking a bribe.

Under Chapter 10, Section 5(b) of the Penal Code, a person who gives, promises or offers an undue benefit for the performance of the duties of such a person is giving a bribe. It is irrelevant whether the bribe will benefit the person receiving the bribe or someone else.

A finding of bribery rests on three conditions, outlined below:

•The nature of the recipient: Any ‘employee or person performing an assignment’ can be the recipient or intended recipient of a bribe pursuant to the Penal Code, irrespective of whether the engagement is in the public or private sector. As regards the criterion of ‘assignment’, it may be based on a contract, election, appointment or duty. Thus, self-employed entrepreneurs are also covered by the anti-bribery provisions;

•The connection between the benefit and the receiver’s position: For bribery to occur, there must also be a certain connection between the recipient’s professional position and the presumptively improper reward, which could entail a risk of undue influence. The prosecutor does not need to prove a fraudulent intent or that the reward has actually influenced the recipient’s actions. It is sufficient that, based on an objective assessment, there was a risk that the reward could have affected the recipient; and

•The existence of ‘improper’ benefit: Anything of direct or indirect value to the recipient could, as a starting point, be considered a benefit, but only ‘improper’ benefits are prohibited. However, it is not always easy to draw the line between proper and improper benefit since the concept of ‘improper’ benefit is not defined in the Penal Code and there are no fixed monetary limits. Also, benefits that do not have any financial value can, depending on the circumstances, be considered improper. This could, for example, be the case with benefits like attractive memberships, honours and awards.

Lacking any clear definition, an overall assessment of all relevant circumstances must be made in each case. The Code of Business Conduct seeks to provide some guidance. It distinguishes between, on the one hand, benefits that typically influence decisions or the manner of completing work tasks, which are improper and, on the other hand, benefits that are typically beneficial to a relationship, but influence neither decisions nor actions, which are permissible.

The assessment of whether or not a benefit is improper should take the following factors into account:

•the value of the benefit;

•the recipient’s professional position;

•the connection between the benefit and the recipient’s professional duties; and

•the group of recipients and the forms of the benefit.

The value of the reward is thus an important factor. A reward of an exceptionally low value runs little to no risk of being able to influence the way the recipient performs his or her official duties and is therefore unlikely to be deemed improper.

Another important factor is the position or function of the recipient. The value of the benefit must be put in relation to the receiver’s integrity and susceptibility to influence, based on factors such as position, work tasks, age and economy. Even an insignificant gift can be at risk of being deemed improper if the recipient holds a particularly sensitive position; for example, if he or she is exercising public authority or carrying out public procurement. According to the Code of Business Conduct, no benefits may be offered to such persons.

According to the Code of Business Conduct, particular restrictiveness should also be applied in relation to:

•employees or contractors at public entities even if the person is not involved in the exercise of public authority or public procurement; and

•employees or contractors within sectors where integrity is particularly sensitive, such as in publicly owned or financed companies, privately owned banks, credit and insurance institutes, as well as companies involved in certifying or monitoring activities.

Benefits to employees of privately owned companies are, as a starting point, permissible according to the Code of Business Conduct, provided that the benefit is moderate, offered overtly and not otherwise of such a nature that it could be deemed to influence behaviour.

The ‘overtness’ requirement means that the benefit should normally be directed at the recipient’s employer or principal, be approved by it or comply with its established policies on benefits. However, approval by the employer does not apply in relation to employees or contractors in the public sector.

Examining the connection between the benefit and the recipient’s professional duties means analysing to what extent the benefit can be said to fulfil a useful professional purpose for the recipient. A lunch may, for example, serve to discuss work-related matters and a field trip may provide valuable insights that cannot be gained at the office. The expenditure must, however, be reasonable.

Trading in influence In addition to the above, according to Chapter 10, Section 5(d) of the Penal Code, the following actions are also criminal:

•to receive or accept a promise of, or demand, an undue benefit from someone; and

•to give, promise or offer an undue benefit to someone.

In each case, the undue benefit must be for the purpose that the recipient influences a person’s decision or other acts in connection with the exercise of public authority or in a public procurement – namely, trading in influence.

Negligent financing of bribes As introduced in 2012, ‘negligent financing of bribes’ is a criminal offence under Chapter 10, Section 5(e) of the Penal Code. This provision states that a business person or business entity that provides its representative or business partners with funds and, thereby, by gross negligence, promotes an infringement of the anti-bribery provisions shall be convicted of negligent financ­ing of bribery. This targets primarily corruption via an agent, consultant of other intermediary. Consequently, a company that provides funds to a third party acting on behalf of the company must take appropriate measures to ensure that the money is not used for illicit payments.

Hospitality restrictions

Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?

There are no specific restrictions in place. As described above, the bribery provisions of the Penal Code are based on the concept of ‘improper reward’, but that concept is not defined in the Penal Code and there are no specific rules regarding hospitality. As a starting point, anything of direct or indirect value to the recipient, including travels, meals, entertainment and other hospitality could, depending on the circumstances, be considered an improper reward.

In the private sector, the Code of Business Conduct states that a benefit is typically permitted if it is moderate and provided overtly. Invitations to attend events, for example, should generally be directed at the recipient’s employer or principal, be approved by it or comply with its established policies on benefits. In principle, a benefit containing access to an event should be aimed at an undefined group of people, rather than at specifically chosen individuals.

In relation to the public sector, the fact that a reward is given in the open or with the knowledge of the receiver’s principal does not exclude liability.

Companies should be very careful when considering inviting representatives of the public sector to events – the Prosecution Authority has been known to bring corruption charges in such cases. Although the courts have not always found that crimes had been committed, this shows that these matters are sensitive and may be difficult to assess.

In a recent judgment, the Svea Court of Appeal overturned a verdict by the Stockholm District Court and ruled that bribery had taken place in a case where certain organisations in the music industry had invited, among other guests, politicians and representatives of authorities to their annual Christmas and Spring parties. In support of its conclusion, the Court of Appeal noted in particular that:

•the authorities invited were allocating funds to be regarded as an exercise of public authority;

•the defendants’ positions of office with the authorities required a high degree of integrity, implying that there was very little scope for them to accept any benefits; and

•the value of attending the parties exceeded normal representation and could not be considered a natural part of the invitation recipients’ jobs.

Even though the court established that there were no indications that the benefits had actually led to funds being incorrectly allocated, it considered the benefits to be improper and that bribery had taken place. The charged persons were ordered to pay fines and the organisations were ordered to pay corporate fines (Case B 377-18, Svea Court of Appeal judgment, 5 October 2018). Two of the five judges dissented and agreed with the Stockholm District Court that the benefits were not improper and hence no bribery had taken place. The Svea Court of Appeal judgment can be appealed to the Supreme Court.

Facilitation payments

What are the rules relating to facilitation payments?

Swedish legislation makes no distinction between bribery and facilitation payments, meaning there is no exception for facilitation payments.

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