There has always been clear and significant scrutiny of the business relationships between the private sector and public officials and, in particular, any transactions taking place between the two. Some of the largest fines and most extensive anticorruption investigations have involved allegations relating to public officials. Although the risk is obvious, the laws relating to this issue are not. The way that a public official is defined in relation to many anticorruption laws is unclear and has been an area of concern for businesses for a long time. In this alert, our lawyers seek to shed light on the definition of a public official in relation to the Foreign Corrupt Practices Act (FCPA), UK Bribery Act, and French, German and Greek criminal codes.

This is the fourth alert in the From the FCPA to the UK Bribery Act – Your key questions about global anticorruption laws answered series. Over the next few weeks, members of our global regulatory & investigations team will answer your most important questions about anticorruption laws in the U.S., UK, France, Germany and Greece. Next up, we will explore what the FCPA, UK Bribery Act and French, German and Greek criminal codes mean for your dealings abroad.

Don’t miss our previous alert which covered the extent to which companies are liable for the acts of their subsidiaries and employees under the FCPA, UK Bribery Act, French and German criminal codes and our additional thought leadership on anticorruption.

How do you define a public official under the FCPA?

  • The FCPA prohibits corrupt payments to “any foreign official,” “any foreign political party or official thereof,” and “any candidate for foreign political office.”
  • The FCPA also prohibits payments to any other person while knowing that all or a portion of the payment will be offered, given or promised to anyone within these prohibited categories (15 USC 78dd-1-3).
  • The FCPA defines the term “foreign official” as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization” (15 USC 78dd-1(f)(1)).
  • Consistent with the purposes of the FCPA, the Department of Justice interprets this definition very broadly to prevent foreign bribery and corruption. Accordingly, the definition includes both low- and high-level foreign officials regardless of rank or position, as well as intermediaries acting on their behalf.

How do you define a public official under the UK Bribery Act?

  • A foreign public official is defined in the UK Bribery Act, under section 6(5), as:
    • “an individual who —
      • — holds a legislative, administrative or judicial position of any kind, whether appointed or elected, of a country or territory outside the United Kingdom (or any subdivision of such a country or territory) (or any subdivision),
      • — exercises a public function—
      • for or on behalf of a country or territory outside the United Kingdom (or any subdivision of such a country or territory), or
      • for any public agency or public enterprise of that country or territory (or subdivision),
      • is an official or agent of a public international organisation.”
  • The section 6 offense requires an intention to influence a foreign public official in their official capacity in order to obtain or retain business or an advantage in business.
  • The general section 1 offense, however, can also apply to attempts to induce improper performance by a foreign public official (not limited to conduct in their official capacity or related to the obtaining or retaining of business).
  • Examples of foreign public officials include:
    • Government ministers and civil servants;
    • Local government members and officials;
    • The police and other security agencies, such as immigration and border control; and
    • The armed forces.
  • In September 2021, UK Finance published a report setting out practical and risk-based guidance on the meaning of “public officials” for the purposes of anti-bribery and corruption (ABC) compliance. Considering the practical and risk-based guidance that report provides, and the wide definition of “public officials” in the Bribery Act, it is recommended that companies review the guidance to ensure ABC compliance.

How do you define a public official under the French Criminal Code?

  • Under the provisions of the French Criminal Code relating to corruption (Articles 432-11 and 435-1 (passive public corruption), 433-1 and 435-3 (active public corruption), 445-1 (passive private corruption) and 445-2 (active private corruption) of the French criminal code) a public agent can be any one of the following:
    • A “depositary of public authority” i.e., anyone acting in the general public interest while exercising public authority prerogatives, no matter their status or the administrative, judiciary or military nature of their activity (for example, the President of the French Republic, a prefect or sub-prefect, a mayor, a police or customs officer, but also a notary or an enforcement agent);
    • The “holder of an elective mandate”; or
    • “Anyone entrusted with the carrying out of a public service mission” i.e., anyone responsible, temporarily or permanently, for the satisfaction of the general public interest, even if such a person does not exercise public authority (for example, architects acting upon the request of local authorities, journalists employed by a public service broadcaster, heads of universities, or branch managers of La Banque Postale).

How do you define a public official under the German Criminal Code

  • According to section 11 paragraph 1 no. 2 of the German Criminal Code (Strafgesetzbuch – StGB), a “public official” is any person who, under German law, is a civil servant or judge (also honorary judges), carries out other public official functions or has otherwise been appointed to serve with an authority or other agency, or has been commissioned to perform public administrative services,  regardless of the organizational form under which the respective duties are performed.
  • Furthermore, section 11 paragraph 1 no. 2a StGB defines a “European official” as any person who is a member of the European Commission, the European Central Bank, the European Court of Auditors or any court of the European Union, who is a civil servant or other member of staff of the European Union or of an institution established under EU law or who is entrusted with carrying out the tasks of the European Union or the tasks of an institution established under EU law.

How do you define a public official under the Greek Criminal Code?

  • The Greek criminal code (GCC) defines a public official as any person who:
    • Provides services or is assigned public duties;
    • On a permanent or temporary basis;
    • and Within the public sector or on behalf of the Greek state, municipalities or other public legal entities.
  • Specifically in relation to bribery (articles 235-237B GCC), a public official is defined as any person serving, on a permanent or temporary basis, in any capacity, in:
    • An organization or company that is fully or majority owned by the state, a regional or local authority or any other public legal entity; and/or
    • An organization or company the majority of whose directors are appointed by the state, a regional or local authority or any other public legal entity.
  • General information in relation to public officials
    • Public officials are not allowed to be involved in commercial activities
    • The code of conduct for public officials allows some types of activity outside their public service following special permission as long as this activity does not interfere or conflict with their official duties.