Describe the elements of the law prohibiting bribery of a foreign public official.
Under Chapter 10, section 5a of the Penal Code, it follows that (1) an employee or anyone who is the holder of an assignment, (2) who receives, accepts a promise of, or requests an improper benefit, (3) for the performance of his or her employment or duty, shall be convicted of bribe taking, and sentenced to pay a fine or maximum two years of imprisonment.
The three key elements of the provision are (1) the parties involved; (2) that the benefit must be given or accepted for the performance of an employment or duty; and (3) that the benefit must be considered as improper.
Anyone who offers, promises or grants an improper benefit to a person covered by the aforementioned provision shall, under Chapter 10, section 5b of the Penal Code, be convicted of bribery. Thus, the provisions are interdependent; although bribery per se does not constitute bribe taking and vice versa. Complicity, conspiracy, aiding and abetting, and attempt to bribe taking and bribery are also criminalised under the Penal Code. Further, the Penal Code only criminalises acts by natural persons and not by legal persons, which is in line with the principles of the Swedish Criminal Law that only natural persons could be held criminally responsible.
If the offence is considered serious, the offender should be sentenced to aggravated bribe taking, or aggravated bribery to between six months and six years of imprisonment. When assessing whether the offence is aggravated it should be considered, among other things, if the offence involved the abuse of a certain responsible position, if the offence was aimed at considerable value or if the offence was part of any crime that was carried out systematically or on a particularly large scale.
The circle of people covered by the provisions includes all employees; both full- and part-time employed, in the public or private sector, irrespective of the person’s position, and anyone who is the holder of any assignment based on an agreement, election, mandate or duty. No distinction is made between domestic and foreign officials. Accordingly, both domestic and foreign politicians performing a public function within government or municipalities, judges and other public officials are covered by the definition, and hence targeted by the provisions.
The punishable act consists of giving, offering or promising an improper benefit, which in any case includes any benefit or privilege of economic value such as money, gifts, discounts, favourable mortgagees, etc. There is no unambiguous legal definition of what constitutes an ‘improper’ benefit. An assessment of all relevant circumstances is, therefore, required in each transaction, although special attention should be given to the nature of the service conducted and the value of the benefit. Special emphasis should also be given to the position or employment of the recipient. A benefit given to a person in a public office is more likely to be deemed improper than a benefit given to someone working in the private sector. In general, if the benefit is intended to influence how the recipient performs his or her duties, it shall be deemed as improper. The provisions also include benefits given both before and after the recipient has taken up his or her duties. Bribery could therefore be committed after the recipient has been employed or given an assignment.
Finally, for it to be an offence, the giving, offering or promising of an improper benefit must be for the performance of the receiver’s employment or assignment. There has to be a connection between the giving of the bribe and the performance of the receiver’s employment or assignment (ie, a conceivable link needs to be identified between the improper benefit and any measure, which the giver is dependent upon, that the receiver has had a practical possibility to influence). However, it is not necessary for the improper benefit to be tied to a specific errand or situation; it is sufficient if the giver and the receiver hypothetically could have had, in relation to the operation conducted by the receiver’s employer or principal, contact with each other.
Generally, the Swedish rules of jurisdiction lay down that a crime committed in Sweden shall be tried under Swedish law by a Swedish court, and acts committed outside of Sweden should only be tried under Swedish law and by a Swedish court if the crime was committed by a Swedish citizen or person domiciled in Sweden. The definition ‘committed in Sweden’ is very wide.
Swedish law does not impose criminal liability for failing to prevent bribery of a foreign public official, but if a person has committed the crime of giving or receiving bribes, and the act was committed as part of a company’s business activity, the company could face criminal trial under Chapter 36, section 7 of the Penal Code and have a corporate fine imposed on it. A corporate fine under Swedish law is a special effect of a crime (committed by an individual) sanctioning companies for not effectively preventing corruption.
Definition of a foreign public official
How does your law define a foreign public official, and does that definition include employees of state-owned or state-controlled companies?
Chapter 10, section 5a-b of the Penal Code applies to bribery of both domestic and foreign public officials (ie, there is no specific definition of ‘foreign public official’). The criminal act includes all officials, both public and private, who are exercising a duty irrespective of their nationality or where the offence is carried out. Consequently, foreign politicians, employees of state-owned or state-controlled companies or others who are performing public functions and services within local or central government can be held responsible for receiving bribes.
Gifts, travel and entertainment
To what extent do your anti-bribery laws restrict providing foreign officials with gifts, travel expenses, meals or entertainment?
A benefit given to a person with a public office is more likely to be deemed improper than a benefit given to someone working in the private sector. Special prudence should therefore always be considered when providing gifts or other benefits to a foreign official. The monetary threshold is also relatively low and benefits exceeding 1,000 Swedish kronor are normally, especially if the receiver is employed in public sector, considered improper. This also applies to gifts, travel expenses, meals and entrainment (ie, if the benefit is worth 1,000 Swedish kronor or more it is normally seen as improper and prohibited under the Penal Code).
Do the laws and regulations permit facilitating or ‘grease’ payments to foreign officials?
Under Swedish law there is no exception for facilitating payments or ‘grease’ payments. Payments with the intention of speeding up an administrative process or likewise are usually considered improper and, therefore, illegal. Furthermore, payments to officials for acting in accordance with their duties could also constitute bribery.
Payments through intermediaries or third parties
In what circumstances do the laws prohibit payments through intermediaries or third parties to foreign public officials?
If a person provides money or other benefits to an agent or likewise, and the person is aware of the fact that the final beneficiary is a foreign public official, and given that the remaining prerequisites are fulfilled, he or she has committed bribery.
Further, Chapter 10, section 5e of the Penal Code stipulates that a businessperson who provides money or property to someone who represents him or her in a particular matter, and thereby by gross negligence furthers bribery, aggravated bribe-giving or trade in influence as referred to in Chapter 10, section 5d of the Penal Code, in that transaction shall be sentenced for reckless financing to a fine or imprisonment not exceeding two years. In other words, the criminalised act is, by gross negligence, aiding or abetting bribery. Thus, anyone who provides money to an agent, or similar representative or intermediate that represents him or her, without investigating who the final receiver of the payment is, may incur criminal liability under the cited provision.
Individual and corporate liability
Can both individuals and companies be held liable for bribery of a foreign official?
The Penal Code only criminalises acts by natural persons (individuals), which is in line with the principles of the Swedish Criminal Law that only natural persons could be held criminally responsible. As a result, companies cannot be prosecuted.
If a person has committed the crime of giving or receiving bribes, and the act was committed as part of a company’s business activity, the company could face criminal trial under Chapter 36, section 7 and 8 of the Penal Code and be imposed corporate fines between 5,000 Swedish kronor and 10 million Swedish kronor. If the company is a ‘large company’ and the sanction value is at least 500,000 Swedish kronor, the corporate fine shall under Chapter 36, section 9 of the Penal Code be set higher than follows from section 8 (increased corporate fine). For a company to be qualified as a ‘large company’ the company must either be listed or fulfil two of the following criteria: (1) an average of more than 50 employees during the last two financials years, (2) that the company’s balance sheet total during the last two financials years exceeded 40 million Swedish kronor or (3) that the company’s total net turnover during the last two financials years exceeded 80 million Swedish kronor. Further, an increased corporate fine shall be set at an amount that is justified with respect to the financial position of the company. However, an increased corporate fine may not be set higher than an amount corresponding to 50 times of the sanction value, ie the maximum fine is 500 million Swedish kronor.
This said, it should be noted that corporate fines under Swedish law are not a criminal sanction, even though closely related, but a special effect of a crime (committed by an individual) sanctioning companies for not effectively preventing corruption. Hence, companies could be given a corporate fine even if they are only negligent or prevent the stopping of a crime.
Private commercial bribery
To what extent do your foreign anti-bribery laws also prohibit private commercial bribery?
Generally, there are no specific rules under Swedish law forbidding private commercial bribery, irrespective of whether it concerns domestic or foreign entities or circumstances. But a return commission or kickback could be deemed to be a bribe; and thus could result in that giver or receiver, or both, committing an offence under Chapter 10, section 5a-b of the Penal Code.
What defences and exemptions are available to those accused of foreign bribery violations?
There are no specific provisions under Swedish law regulating the right to defence in a foreign bribery matter compared to other crimes. Under Chapter 21, section 3 of the Swedish Code of Judicial Procedure, a defendant is always entitled to be assisted by a defence counsel of his or her choice. If the defendant is detained or suspected for a crime that is sanctioned with a minimum of six months of imprisonment a public defence counsel shall be appointed by the court if so demanded by the defendant.
What government agencies enforce the foreign bribery laws and regulations?
The Swedish National Anti-Corruption Unit is a specialised authority within the Swedish Public Prosecution Service that deals with cases concerning domestic and international bribery. The unit is based in Stockholm and was set up in 2003 to fight corruption and enforce bribery laws and regulation more effectively.
Patterns in enforcement
Describe any recent shifts in the patterns of enforcement of the foreign bribery rules.
In recent years we have seen an increased prosecution appetite related to foreign bribery cases. Furthermore, there is an increasing interest from the authorities in forfeiture of profits from bribery.
Prosecution of foreign companies
In what circumstances can foreign companies be prosecuted for foreign bribery?
Neither domestic nor foreign companies can be prosecuted under Swedish law. Nevertheless, foreign companies conducting business in Sweden, irrespective of whether or not they have a permanent establishment in Sweden, could have corporate fines imposed upon them.
What are the sanctions for individuals and companies violating the foreign bribery rules?
Violation of Chapter 10, section 5a-c of the Penal Code is sanctioned with fines and imprisonment for natural persons. Companies are, as previously mentioned, not subject to criminal liability under Swedish law. However, they can be fined for crimes committed by employees or executives acting within the scope of their duties where the company has not done what could be reasonably required to prevent the crime, or the crime is committed by an individual in a leading position or with a particular supervisory or control responsibility in the company. Profits originating from bribery offences can also be subject to forfeiture. Further, firms and individuals can as a result of bribery conviction be debarred from participating in public procurements.
There are no possibilities for a Swedish court to issue a debarment on a company from certain areas in a criminal case. Such questions will be handled separately on a case-by-case basis in public procurement matters.
Recent decisions and investigations
Identify and summarise recent landmark decisions or investigations involving foreign bribery.
Legal proceedings involving foreign corruption are unusual in Sweden. Nonetheless, over the past years three major trials involving foreign bribery related to multinational companies have been held in Stockholm District Court. The cases concern alleged bribes in Azerbaijan and Uzbekistan. In two cases the defendants were acquitted and in the third case a verdict is expected to be delivered in the end of 2021. Both verdicts have been appealed to the Svea Court of Appeal, and the defendants in the case concerning Uzbekistan were acquitted also in the court of appeal. The case regarding Azerbaijan has not yet been tried by Svea Court of Appeal.