Domestic bribery: legal framework
The ACC sanctions any public officer or individual who engages in corrupt practices with public officers. Recently enacted Law No. 27,401 sets forth penalties applicable to legal entities involved in acts of corruption. Until Law No. 27,401 was enacted, only individuals involved in corruption offences could be held criminally liable.
According to Law No. 27,401, legal entities will be held criminally liable for corruption offences, if such offences were committed with their intervention, or in their name, interest or benefit.
The ACC broadly defines 'public officer' as any individual who is temporarily or permanently involved in public functions.
The ACC prohibits public officers from receiving or accepting money or other benefits or gifts, in exchange for doing or refraining from doing something related to their duties (i.e., passive bribery); and from giving or offering, directly or indirectly through an intermediary, any payments or gifts to a public officer (i.e., active bribery). Under the ACC, the mere giving or acceptance of money, gifts or any kind of benefits to obtain any illicit benefit from the public officer would constitute a corruption offence, regardless of whether the behaviour of the public officer was influenced or affected.
Penalties range from between one and six years of imprisonment, and special disqualification for life from exercising public duties in the case of passive bribery.
The ACC describes influence peddling as any request or acceptance of money or any gift, or acceptance of any promise, such as money or gifts, to unlawfully influence a public officer. Influence peddling is punished with imprisonment from one to six years and disqualification for life from exercising public duties.
Both bribery and improper lobbying offences involving members of the judiciary constitute aggravated specific offences, in which case penalties go up to 12 years' imprisonment.
Gifts or other benefits to public officers are not permitted even if nothing specific is requested in exchange from a public officer. This crime requires the giving of a gift to a public officer (or the acceptance of a gift by a public officer) but does not require a direct connection to an action or omission of the public officer. This offence punishes the mere giving of a gift or benefit to a public officer due to his or her capacity as a public officer. Sanctions range from between a maximum of one year of imprisonment for private citizens and a maximum of two years of imprisonment for a public officer.
In addition to the above, under Law No. 27,401, individuals convicted for corruption offences would also be exposed to fines from two to five times the improper benefit obtained from the crime.
Decree No. 1179/2016 (18 November 2016), in turn, provides general guidelines on gifts to public officers. Judges are likely to take these guidelines into consideration when interpreting anti-corruption violations.
An exception is made for courtesy gifts or diplomatic traditions. Under Decree No. 1179/2016, public officers may accept gifts when their market value does not exceed 6,400 Argentine pesos. If the gift's value exceeds 6,400 Argentine pesos, prior authorisation should be required and the gift must be registered as an asset of the federal government. Meals for public officers are allowed only if they are 'modest' and occasional.
There is no safe harbour for facilitation payments under Argentine law.
Private corruption is not expressly included in the ACC, as it is, for instance, in the UK Bribery Act. However, the ACC contains other offences such as fraudulent administration, concealment, embezzlement, fraud and illegal financial transactions that, while not exactly characterised as private corruption, would make it possible to prosecute individuals engaged in private corruption.
It is worth mentioning that under our criminal law system, unless a specific law sets forth corporate criminal liability, only individuals may be held criminally liable. Criminal liability is based on the principle of culpability, whether by negligence or criminal intent. While all the corruption offences described above require criminal intent, there are certain circumstances in which local courts have construed reckless disregard or gross negligence as constructive criminal intent. In fact, wilful blindness could be considered constructive criminal intent.
The Constitution prohibits retroactive application of criminal laws. Based on this legal principle, legal entities could be held criminally liable for corruption offences only if the offences were perpetrated after 2 March 2018.
Under Law No. 27,401, legal entities could be sanctioned with the following penalties: (1) fines of up to five times the amount of the improper benefit; (2) suspension of commercial activities; (3) special disqualification from participating in public tenders; (4) cancellation of the companies' corporate registration with the local registry of commerce; (5) loss or suspension of governmental benefits; and (6) publication of the conviction imposed on the legal entity.
Law No. 27,401 has also included specific guidelines for judges to define penalties. In particular, Law No. 27,401 instructs judges to consider whether or not a given company has a strong corporate compliance programme in place, when determining the penalty for a given corporate corruption offence.
Judges will also take into account other anti-corruption regulations such as: (1) the Public Employment Law (Law No. 25,164); (2) the Ethics on Public Office Law (Law No. 25,188); and (3) the Code of Ethics of Public Office (Decree No. 41/99) to analyse the behaviour of public officers.
Foreign bribery: legal framework
Under the ACC, any offence committed within Argentine territory or abroad but with effects within Argentine territory could be pursued by local courts. Therefore, both Argentine and foreign individuals or companies could be pursued for the commission of any criminal offence punished under the ACC or specific criminal legislation. Furthermore, both foreign individuals and companies could be criminally liable for corruption offences, if such offences took place after 2 March 2018. As explained in Section II, any corruption wrongdoing committed before 2 March 2018 shall not trigger corporate criminal liability.
Law No. 27,401 provides that any individual or company with domicile in Argentina involved in foreign bribery, could also be pursued by Argentine courts. Foreign bribery has been included as specific offence under the ACC following the United Nations Convention against Corruption (Law No. 26,097, enacted on 9 June 2006). By foreign bribery, the ACC intends any offer or delivery of money or any object of value or any other benefit such as gifts, favours or promises, to a foreign public officer either from a foreign country or an international public organisation – either personally or through an intermediary, for the purpose of:
- having such officer perform or refrain from performing his or her duties; or
- unlawfully influence in an economic, financial or commercial transaction.
In both cases, the individuals will be punished with imprisonment from one to six years and special disqualification for life to exercise public duties. As explained in Section II above, the ACC broadly defines public officer, covering not only the local public governmental officers, but also the foreign public officers who were temporarily or permanently involved in the exercise of public functions either locally or abroad.
In addition, Law No. 27,401 also established corporate criminal liability for foreign bribery.
Law No. 27,401 incorporated cooperation agreements (such as leniency programmes). Neither criminal nor administrative liabilities will apply if the legal entity spontaneously denounces the offence, had implemented an adequate compliance programme before the offence occurred and returns the illegal benefit obtained from the crime.
Cooperation agreements with the Prosecutor's Office shall be confidential and meet certain requirements including, without limitation: (1) specific evidence or information to identify the responsible parties or uncover facts; (2) collaboration in the process of asset recovery; (3) payment of the minimum fine; (4) any damages; and (5) disciplinary measures on individuals responsible for the offence.