Specific offences and restrictions

Offences

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

The key corruption and bribery offences are bribe taking and bribe giving by persons in the public and private sectors.

Under Danish law, a distinction is made between bribery in the public and private sectors. Bribery in the public sector is regulated by Sections 122 and 144 of the Criminal Code.

Active bribery in the public sector is regulated by Section 122. An offence is considered to have been committed once an offer has been made, even if the offer is rejected. The provision applies to:

  • Danish public officials;
  • foreign public officials; and
  • persons performing a public function with an international public organisation.

The advantage may consist of both a financial and non-financial advantage, such as an intangible favour. The advantage must relate to the relevant public official performing or failing to perform a function. However, this function need not constitute a breach of the official’s duties. Further, the advantage must be improper. This requirement exists to have a de minimis requirement regarding what constitutes bribery. If a public official receives a small gift on their jubilee, this will be considered proper and therefore not covered by Section 122.

Section 144 has a wider scope than Section 122 because it criminalises the act of receiving an advantage or a gift. The group of persons covered by Section 144 is the same as those covered by Section 122. The gift or advantage in question need not be given to compel the public official to perform or fail to perform a function. Hence, the scope of Section 144 is wider than Section 122. It The only requirement is that receipt gift is considered improper.

Under Sections 122 and 144, propriety will be assessed based on the following factors:

  • the nature and extent of the advantage;
  • the public official’s position;
  • whether the act resulted in a financial gain for the public official;
  • whether the public official took the initiative to commit the act;
  • the transparency of the arrangement; and
  • whether the gift created doubts as to the public official’s impartiality.

The value of the advantage is an important factor because an advantage of little value will have only little or no risk of influencing the recipient and thus being deemed improper. The public official’s function is also relevant, as an official with decision-making authority is more likely to give rise to doubts about their impartiality when receiving advantages. An advantage is also more likely to be deemed improper if a public official derives great personal gain from it. In cases where a public official has taken the initiative to commit the act by requesting a bribe, the advantage is always deemed improper.

The level of transparency should also be considered, as an act is more likely to be improper if the parties have tried to keep it hidden. If an advantage gives rise to doubts about the impartiality of the public official, it is always improper. Examples of advantages that do not give rise to doubts about the impartiality of public officials are small gifts offered to a public official on their jubilee.

Whether an act falls within the scope of Sections 122 and 144 must always be based on an overall assessment of the situation.

As for bribery in the private sector, both active and passive bribery are regulated by Section 299(2). When deciding whether an act falls within the scope of Section 299(2), the following conditions must be met:

  • The recipient of the advantage must have been entrusted with property or authority by another person or entity.
  • The reward in question must have been a gift or an advantage.
  • Receiving the benefit must have been a breach of the recipient’s duties to their employer.
  • The action must have been improper.

If a person covered under Section 299(2) accepts an advantage with the knowledge that the offeror intends for that recipient to breach their duties, such activity will likely fall under Section 299(2), even if the recipient does not breach their duties.

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 under Danish law.

In 2011 the Ministry of Taxation published a report with a more precise definition of what constitutes a gift or other advantage with regard to bribery in the public sector. The ministry stated that paid events do not fall within the scope of Sections 122 or 144 of the Criminal Code if:

  • the event is of a modest nature that does not give rise to doubts about the public official’s impartiality;
  • there is a connection between the public official’s function and the event, which makes the public official’s participation seem reasonable;
  • participation in the event is of a representative nature and takes place on a high-level scale (eg, an annual meeting of a non-governmental organisation);
  • the food and entertainment are connected to the event and do not give rise to doubts about the public official’s impartiality; and
  • the event could have been paid for by the relevant public authority under their allocation of funds.

It further follows from the 2017 Good Conduct in the Public Sector Guide published by the Agency for Modernisation Agency, the Ministry of Finance, Local Government Denmark and Danish Regions that public officials should never accept gifts or advantages from citizens or companies in connection with their work. The following factors should be considered when assessing whether an advantage is permitted:

  • What is the relationship between the public official, their place of work and the offeror of the benefit?
  • Is the gift or advantage offered solely because of the public official’s role?
  • Does the offeror expect something in return or could receiving the advantage give rise to such expectation?
  • Is the advantage of a modest nature?
  • Will receiving the advantage disrupt the public official’s function by making them indebted to the offeror?
  • Will receiving the advantage create doubts about the public official’s impartiality?

In the private sector, transparency is key; gifts or advantages are typically permitted if they are offered overtly. This is to ensure transparency between the recipient and the recipient’s employer.

Facilitation payments

What are the rules relating to facilitation payments?

Under Danish law, the distinction between facilitation payments and bribery is difficult. The Ministry of Justice’s 2015 pamphlet “How to Avoid Corruption” states that facilitation payments under special circumstances are not covered by Section 122 of the Criminal Code. However, it is generally acknowledged that facilitation payments to public officials will always fall under the scope of Section 122. Therefore, it is unclear whether facilitation payments can occur without being covered by Section 122 and therefore not considered bribery.