Anti-Corruption in the Netherlands

Christiaan van der Meer*, (Baker McKenzie Amsterdam)

1. Domestic bribery (private to public)

1.1       Legal framework

Bribery of public officials (ambtenaren<e/m>) is regulated under the Dutch Criminal Code. Article 177 penalizes active bribery (i.e., the bribing of public officials) while Article 363 penalizes passive bribery (i.e., the public officials who are bribed).

1.2       Definition of bribery

Bribery can be committed both by public officials and by companies / private individuals who (try to) bribe a public official.

Under the Dutch Criminal Code, bribery is defined very broadly:

Public bribe may refer to any pecuniary or non- pecuniary gift, promise (even if not realized), or service to a former, current or future public official, either directly or indirectly/through an intermediary, in order to induce him or her to commit any act, or refrain from acting, in the performance of his or her public duties, whether contrary or in accordance with his or her official duties.

Please note that it is also punishable to offer a gift, benefit or promise after the public servant has already acted contrary to his or her duties. Also, the Dutch anti-corruption provisions do not require that the public official personally gain from the bribe. Moreover, causality between a specific gratuity and a specific performance or non- performance is not required.

As indicated earlier, in addition to direct bribery, indirect bribery is also illegal. If local agents, representatives or consultants are used to bribe a public official, this can lead to criminal liability of the legal entity using the intermediary. Legal entities are therefore expected to have a critical attitude towards the nature and scope of the activities to be performed by such third parties, as well as perform a due diligence/risk analysis on their third parties.

1.3       Definition of public official

The Dutch Criminal Code does not define “public official.” It only indicates that public officials include any member of a general representative body, arbitrators and persons who form part of the armed forces. The Dutch Criminal Code also determines who should additionally be considered public officials for purposes of anti-bribery legislation, namely, persons with a public function in a foreign state or an international institution, as well as former public officials.

In established case law, the term public official has been interpreted as anyone who is appointed by the public authority in relation to a public function, in order to perform part of the tasks of the Dutch state and its bodies. The person involved must be employed as a public official by a competent body, or its employer must perform government tasks and fall under the supervision and control of the government. In any event, the definition of public official is interpreted broadly.

1.4       Consequences of bribery

(a)        For the individuals involved
The Dutch Criminal Code establishes the same range of penalties for public officials and for individuals that bribe public officials.

  • Fines of up to EUR 82,000 or imprisonment for up to six years
  • Exclusion from certain professions
  • Confiscation of illegally obtained assets/proceeds of the crime

(b)        For the company/legal entity

  • Fine of up to 10% of the annual turnover of the company if the fine of up to EUR 82,000 is considered insufficient punishment
  • Confiscation of illegally obtained assets/proceeds of the crime

1.5       Political contributions


Wet financiering politieke partijen). Political parties may accept anonymous contributions up to EUR 1,000.
Contributions between EUR 1,000 and EUR 4,500 should be registered (including name and place of residence of the giver, the amount and date of contribution). Contributions exceeding EUR 4,500 must be made public. Presently, only national political parties are covered by these rules. 89

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

The Dutch Criminal Code does not establish quantitative or qualitative limitations on hospitality expenses. In order to assess whether a hospitality expense is considered a bribe, it has to be established that the hospitality expense constitutes an improper benefit (in line with the definition of bribery as indicated in Section 1.2).

Whether a hospitality expense could be considered a bribe needs to be determined on a case-by-case basis, taking into account all the facts and circumstances.

Please note that the internal codes of conduct to which public servant are usually bound: require them to get prior approval from their authority before accepting any hospitality offers; prohibit the acceptance of gifts with a value exceeding EUR 50; prohibit the acceptance of gifts at their home address; and prohibit the personal use of advantages derived from their function.

2. Domestic bribery (private to private)

2.1       Legal framework

Bribery of non-public officials is regulated under Article 328ter of the Dutch Criminal Code.

2.2       Definition of private bribery

A private bribe, inter alia, refers to any pecuniary or non-pecuniary gift, promise (even if not realized) or service to someone other than a public official who is employed or acts as a mandatory, which is, contrary to the standards of good faith, concealed from that person’s employer or principal.

The benefit must be offered/accepted in connection with what the non- public official – in the course of his or her employment or the execution of his or her mandate – has done or omitted, or will do or omit. The person who is bribed must have concealed the benefit from his or her employer/principal, and the person who bribes must reasonably assume that the benefit will be concealed from the non- public official’s employer/principal.

2.3       Consequences of private bribery

(a)        For the individuals involved

  • Fines of up to EUR 82,000 or imprisonment of up to four years
  • Exclusion from certain professions
  • Confiscation of illegally obtained assets/proceeds of the crime
  • Publication of the judgment

(b)        For the company/legal entity

  • Fines of up to 10% of the annual turnover of the company if the fine of up to EUR 82,000 is considered insufficient punishment
  • Confiscation of illegally obtained assets/proceeds of the crime
  • Publication of the judgment

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

The Dutch Criminal Code does not establish quantitative or qualitative limitations on hospitality expenses. The relevant element of the offense is “[concealed] contrary to the standards of good faith.” It should be decided whether the employee/mandatory was obliged to inform his employer/principal according to objective criteria. In case of doubt, the employee/mandatory should thus inform his or her employer/principal of any received hospitality expenses.

3. Corruption of foreign public officials / Corruption abroad

3.1       Legal framework

In the Dutch Criminal Code, no distinction is made between bribing national or foreign officials. Foreign public officials are equated with Dutch public officials in the Dutch Criminal Code for the purpose of Article 177, which penalizes active bribery (i.e., the bribing of public officials) and Article 363, which penalizes passive bribery (i.e., the public officials who are bribed).

In the case of corruption abroad, the following persons can be prosecuted in the Netherlands:

  • A Dutch public official bribed abroad
  • A person who is employed by an international institution that was established in the Netherlands and bribed abroad
  • Anyone who bribed a Dutch person or Dutch public official abroad.90
  • A Dutch person/entity who bribed a Dutch or foreign public official (abroad)
  • A Dutch public official or person, employed by an international institution that was established in the Netherlands, who violates Article 177 abroad.91

A foreign public official (not employed by the Netherlands) who is bribed (abroad) by a Dutch person cannot be prosecuted in the Netherlands unless the public official is employed by an international institution established in the Netherlands.

3.2       Definition of corruption of foreign public officials

A public bribe refers to any pecuniary or non-pecuniary gift, promise (even if not realized), or service to a former, current or future public official, either directly or indirectly/through an intermediary, in order to induce him or her to commit any act, or refrain from acting, in the performance of his or her public duties, whether contrary or in accordance with his or her official duties.

Reference is also made to Section 1.2.

3.3       Definition of foreign public official

For the purpose of this crime, a foreign public official is any person with a public function who is employed by a foreign state or international institution. Reference is also made to Section 1.3.

3.4       Consequences of corruption of foreign public officials

(a)        For the individuals involved
The Dutch Criminal Code establishes the same range of penalties for public officials and for individuals that bribe public officials.

(i)   Fines of up to EUR82,000 or imprisonment up to six years

(ii)   Exclusion from certain professions

(iii)   Confiscation of illegally obtained assets/proceeds of the crime

(b)        For the company/legal entity

(i)   Fines of up to 10% of the annual turnover of the company if the fine of up to EUR 820,000 is considered insufficient punishment

(ii)   Confiscation of illegally obtained assets/proceeds of the crime

3.5       Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)

The Dutch Criminal Code does not establish quantitative or qualitative limitations on hospitality expenses. In order to assess whether a hospitality expense is considered a bribe, it has to be established that the hospitality expense constitutes an improper benefit (in line with the definition of bribery as indicated in Section 1.2).

Establishing that a hospitality expense is a bribe needs to be determined on a case-by-case basis, taking into account all the facts and circumstances.

4. Facilitation payments

The Dutch Criminal Code does not specifically identify so-called facilitation payments. Having said that, facilitation payments are considered improper benefits and thereby, constitute bribery.
Although illegal/punishable, facilitation payments to foreign public officials are, according to internal guidelines of the Dutch public prosecutor’s office, not prosecuted in the Netherlands when the following conditions (derived from the OECD convention) are met:

  • Small amounts (in absolute or relative terms) are concerned.
  • The official’s act or omission was already required by law and the payment does not distort competition in any way.
  • The payment has been provided at the initiative of the (foreign) official.
  • Payments to lower level public officials are concerned.
  • The payment is not concealed by the company and is reflected transparently in the company’s financial accounts.

5. Compliance programs

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

Bribery may be attributed to a legal entity if the crime is committed in the sphere/spirit of the legal entity, which may be the case in the following circumstances:

  • The act has been committed by someone employed by the legal entity.
  • The act corresponds to the usual course of business of the legal entity.
  • The act has been useful in the course of business of the legal entity.
  • The legal entity had power of disposal over the act and accepted the act (which is also the case if no due care has been exercised in order to prevent the act from happening).

The Dutch Criminal Code does not recognize a compliance program as an instrument to mitigate or eliminate the liability of legal entities. However, legal entities could potentially mitigate their exposure to corruption if they adopt an effective compliance program. In addition, legal entities may potentially escape attribution of the crime if they can prove that – by means of the compliance program – the legal entity exercised due care in order to prevent the act from happening and did not approve of the act.

5.2       Absence of a compliance program as a crime

The Dutch Criminal Code does not recognize the absence of a compliance program as a crime.

5.3       Elements of a compliance program

(a)           Legal framework

The Dutch Criminal Code does not recognize nor regulate the elements of a compliance program.

(b)           Recommended practice

Although there are no explicit legal provisions regarding compliance programs, the adoption of a compliance program is a recommended measure to limit a company’s exposure to bribery.

6. Regulator with jurisdiction to prosecute corruption

A public prosecutor of the public prosecutor’s office in Rotterdam has been appointed as the national corruption prosecutor. This specialized prosecutor offers assistance to other members of the public prosecution service in relation to the investigation and prosecution of corruption matters.


89 – Please note that a legislative bill, which is presently under review, proposes to also cover local political parties. – Back
90 – Under the condition that the offense is punishable in the country where the bribery took place. – Back
91 – Idem. – Back


Christiaan van der Meer

Christiaan van der Meer specializes in the areas of competition law and international trade, including anti-bribery compliance. He heads the Firm’s Compliance & Investigations team in Amsterdam and has in-depth experience in handling compliance/regulatory matters. He has conducted complex internal investigations for multinational companies across a range of industries. Christiaan has strong on-the-ground experience engaging with Dutch and EU regulators. He has also performed due diligence / risk assessments and provided compliance training to multinational companies, focusing on anti-bribery, as well competition law and other regulatory issues.

christiaan.vanderMeer@bakermckenzie.com

Tel: +31-20-5517199