Anti-Corruption in Morocco

By Kamal Nasrollah* and Keltoum Boudribila* (Baker McKenzie Morocco)

1. Domestic bribery (private to public)

1.1       Legal framework

Bribery is governed by Articles 248 to 256 of the Moroccan Criminal Code (the “Code”).

1.2       Definition of bribery

Bribery consists of the offer or solicitation made towards or receipt or acceptance on the part of any magistrate, member of the judiciary, arbitrator, public official or electoral office holder of a gift, donation or other advantage in exchange for performance or taking of any act, favour or decision or abstention from any act or decision; or for a medical practitioner, to fraudulently certify or hide the existence of a disease. (Code, Article 248).

The crime can be committed by any public official and by private individuals who try to corrupt a public official.

1.3       Definition of public official

“Public official” is defined in Article 224 of the Code as any person who exercises a function or assignment, even temporary, on behalf of the state, public administration, municipality or public establishment or public interest service. The law applies broadly, however, to include magistrates and arbitrators appointed by a public or judicial authority or by a private party.

1.4       Consequences of bribery

(a)        For the individuals involved
The punishment for public bribery is imprisonment from two years to five years and a fine of MAD 2,000 to MAD 50,000.

When the amount involved exceeds MAD 100,000, the imprisonment sentence is increased to a period of five years to 10 years and the fine to MAD 5,000 to MAD 100,000.

Under Article 256 of the Code, a person convicted may be deprived of certain civil rights and be barred from public office or employment for a period of up to 10 years.

According to Article 251 of the Code, the same penalties apply to any person committing assault or battery or offering promises, gifts or other advantages or accepting solicitations that facilitate corruption, even if such person has not initiated such acts and whether or not they were effective.

(b)        For the company / legal entity
Pursuant to Article 127 of the Code, legal entities are subject only to monetary fines as well as confiscation of assets and forced dissolution, as provided for in Article 36 of the Code.

1.5       Political contributions

Contributions to political parties are regulated under Article 31 of Law N° 29-11 relating to political parties. In general terms, contributions to political parties are allowed if they do not exceed MAD 300,000 per year and per contributor.

Any person having granted or accepted donations or bequests in cash or in kind on behalf of a political party in violation of the MAD 300,000 limit is subject to a fine between MAD 20,000 and MAD 100,000.

1.6       Limitations applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)

Moroccan Law does not contain any specific de minimis or other exemptions with respect to payment or acceptance of hospitality expenses incurred on behalf of public officials. Similarly, there are no statutory or regulatory guidelines with respect to inviting government officials to events that are sponsored by a company or partially sponsored by a company where the company defrays or reimburses the cost of air travel, food, lodging or entertainment.

Whether a hospitality expense would be considered bribery would depend on the specific facts, including any intention of the parties concerned that any payment of expenses or provision of any item of value was carried out with the intent of obtaining performance of an act or other favour.

2. Domestic bribery (private to private)

2.1        Legal framework

Private bribery is regulated under Article 249 of the Code.

2.2        Definition of private bribery

Article 249 applies to any paid employee or subordinate who, directly or through an intermediary, without the knowledge or consent of his employer, requests or approves offers, promises, gifts, commissions, discounts or bonuses in order to perform or abstain from performing any act within the scope of employment or which may be facilitated by such employment.

Article 249 does not specifically provide for liability of persons soliciting such acts from an employee or subordinate. However, the provisions of Article 251 cited earlier – providing that the same penalties apply to persons offering or soliciting gifts or other advantages facilitating corruption – includes corrupt offers or solicitations made to employees or subordinates within the scope of Article 249.

2.3        Consequences of private bribery

(a)         For the individuals involved
Pursuant to Article 249 of the Code, private bribery is punishable by imprisonment for a period of one year to three years and a fine between MAD 5,000 and MAD 50,000.
(b)        For the company/legal entity
Pursuant to Article 127 of the Code, legal entities are subject only to monetary fines as well as confiscation of assets and forced dissolution, as provided for in Article 36 of the Code.

2.4       Limitations applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)

As in the case of corruption of a public official, Moroccan law does not provide any specific de minimis or other exemptions with respect to hospitality expenses. Accordingly, any determination would depend on the intention of the parties and on other specific facts of the case.

3. Corruption of foreign public officials

There are no specific provisions in the Code relating to the corruption of foreign public officials.

4. Facilitation payments

There are no specific provisions under Moroccan law defining or distinguishing facilitation payments. Accordingly, the legality of any such payments would be determined by the general provisions of the law relating to corruption.

As there is no exemption in the Code that would allow the making of facilitation payments, such payments would likely be considered as falling within the scope of Articles 248 to 250, to the extent that the expediting or handling of any matter constituted the performance of an act within the scope of the official duties of the recipient in exchange for payment.

5. Compliance programs

5.1       Value of a compliance program in mitigating/eliminating the criminal liability of legal entities

There are no specific provisions under Moroccan law defining or distinguishing facilitation payments. Accordingly, the legality of any such payments would be determined by the general provisions of the law relating to corruption.

As there is no exemption in the Code that would allow the making of facilitation payments, such payments would likely be considered as falling within the scope of Articles 248 to 250, to the extent that the expediting or handling of any matter constituted the performance of an act within the scope of the official duties of the recipient in exchange for payment.

5.2       Absence of compliance program

The Code does not impose any requirement with respect to a compliance program and thus, the absence of implementation of any such program does not give rise to liability.

(a)       Legal framework
As mentioned, there is no Moroccan legislation or regulations in relation to compliance programs.

(b)        Recommended practice
In the absence of statutory, regulatory or judicial guidance, it is recommended that legal entities adopt strict compliance programs in order to raise the awareness of management and staff, and potentially as a strategy to counter a finding of or to mitigate liability in case of prosecution. However, there are no legal provisions stating that the existence of such programs can limit or exclude liability in a given case.

6. Regulator with jurisdiction to prosecute corruption

There is no special regulatory body with authority to prosecute corruption. Corruption investigations and prosecutions are carried out by the public prosecutor and the criminal courts.


Baker McKenzie Maroc SARL
Ghandi Mall – Immeuble 9
Boulevard Ghandi
20380 Casablanca
Morocco

Kamal Nasrollah

Kamal Nasrollah advises international clients on cross-border mergers and acquisitions, energy and project finance contracts, as well as international litigation/arbitration. He collaborates closely with Baker McKenzie’s Paris office and practice groups. Drawing from his experience in diverse business cultures, Kamal has become an adviser of choice for leading companies in the Middle East and North Africa. He works with major companies to identify investment opportunities in Morocco, North Africa and West Africa.

kamal.nasrollah@bakermckenzie.com

Tel: +212 52 2 77 95 95

Baker McKenzie Maroc SARL
Ghandi Mall – Immeuble 9
Boulevard Ghandi
20380 Casablanca
Morocco

Keltoum Boudribila

Keltoum Boudribila joined Baker McKenzie in
2012. She advises leading companies in the Middle East and North Africa in the field of business law, in particular with M&A and financing transactions. Prior to joining Baker McKenzie, Keltoum worked as an associate for the French law firm August & Debouzy.

keltoum.boudribila@bakermckenzie.com

Tel: +212 5 22 77 95 95