How do you define a public official and how does that definition vary between the FCPA, the UK Bribery Act and the French, German and Greek penal codes?


Business relations between the private sector and public officials have always been the subject of close scrutiny and, in particular, of all transactions between the two. Some of the highest fines and most in-depth anti-corruption investigations have involved allegations against public officials. While the risk is obvious, the laws relating to this issue are not. How a public official is defined under many anti-corruption laws is unclear and has long been a matter of concern for businesses. In this alert, our lawyers seek to shed light on the definition of a public official with regard to the Foreign Corrupt Practices Act (FCPA), the UK Bribery Act and the French, German and Greek criminal codes.

This is the fourth alert in the De la FCPA to the UK Bribery Act – Your key questions about global anti-corruption laws answered series. Over the next few weeks, members of our global regulatory and investigative team will answer your most important questions about anti-corruption laws in the US, UK, France, Germany and Greece. Next, we’ll explore what the FCPA, UK bribery law, and French, German, and Greek criminal codes mean for your overseas transactions.

Don’t miss our previous alert which covered the extent to which companies are responsible for the actions of their subsidiaries and employees under the FCPA, the UK Bribery Act, the French and German penal codes, and our additional thought leadership on combating crime. corruption.

How do you define a public official within the meaning of 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 knowing that all or part 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 agent” as “any agent or employee of a foreign government or any department, agency or instrument 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 instrument, or for or on behalf of such public international organization ”(15 USC 78dd-1 (f) (1)).
  • In accordance with the objectives of the FCPA, the Department of Justice interprets this definition very broadly to prevent foreign bribery. 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 office of any kind, appointed or elected, in a country or territory outside the United Kingdom (or any subdivision of such 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 country or territory), or
      • for any public body or public enterprise in that country or territory (or subdivision),
      • is an official or agent of a public international organization.
  • The violation of Article 6 requires the intention to influence a foreign public official in his or her official capacity in order to obtain or retain a market or a commercial advantage.
  • However, the general infringement of Article 1 may also apply to attempts to induce improper performance by a foreign public official (not limited to conduct in his official capacity or connected with obtaining or obtaining retention of a case).
  • Examples of foreign public officials are:
    • Ministers and government officials;
    • Local government members and officials;
    • Police and other security agencies, such as immigration and border control; and
    • The armed forces.
  • In September 2021, UK Finance released a report providing practical and risk-based guidance on the meaning of ‘public officials’ for the purposes of anti-bribery and corruption (ABC) compliance. In view of the practical and risk-based guidelines provided by the report and the broad definition of “public officials” in the corruption law, companies are recommended to review the guidelines to ensure compliance with the CBA.

How do you define a public official in the French Penal Code?

  • Under the provisions of the Penal 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 penal code) a public official can be one of the following:
    • A “depositary of public power”, that is to say any person acting in the general interest while exercising public power prerogatives, whatever their status or the administrative, judicial 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”; Where
    • “Anyone entrusted with the performance of a public service mission”, that is to say any person entrusted, temporarily or permanently, with the satisfaction of the general public interest, even if he does not exercise not the public authority (for example, architects acting at the request of local authorities, journalists employed by a public service broadcaster, university directors or agency directors of La Banque Postale).

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

  • According to article 11 paragraph 1 no. 2 of the German Criminal Code (Strafgesetzbuch – StGB), a “public official” is any person who, under German law, is an official or a judge (also honorary judges), performs other functions of public official or has been otherwise appointed to serve with an authority or other body, or has been entrusted with the exercise of public administrative services, regardless of the organizational form in which the respective functions are exercised.
  • In addition, article 11 paragraph 1 no. 2a StGB defines a “European official” as any person who is a member of the European Commission, of the European Central Bank, of the European Court of Auditors or of any jurisdiction of the European Union, who is an official or other member of the staff of the European Union or of an institution established under Union law or which is responsible for carrying out the tasks of the European Union or the tasks of an institution established under Union law .

How do you define a public official in the Greek penal code?

  • The Greek Criminal Code (GCC) defines a public official as any person who:
    • Provides services or is entrusted with public tasks;
    • Permanently or temporarily;
    • and Within the public sector or on behalf of the Greek State, municipalities or other public legal entities.
  • Specifically with regard to corruption (articles 235-237B CCG), a public official is defined as any person serving, on a permanent or temporary basis, in any capacity whatsoever, in:
    • An organization or business wholly or majority owned by the state, regional or local authority or other public legal entity; and or
    • Organization or company where the majority of directors are appointed by the State, a local authority or any other legal person governed by public law.
  • General information on public officials
    • Public officials are not allowed to participate in commercial activities
    • The code of conduct for public officials authorizes certain types of activity outside their public service after special authorization as long as this activity does not interfere or conflict with their official duties.


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