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in the water and power sector earlier this decade. 144 According to a 2010 quarterly report fi led by Halliburton, French investigations related to alleged bribery in Nigeria are still on-going in France. 145 In April 2011, a French appeals court overturned the conviction of a former French minister who had been convicted in 2009 of infl uence peddling in a case relating to the traffi cking of Soviet-made arms to Angola in the 1990s. The convictions of two businessmen in that case were also overturned. 146 In connection with the so-called “Angolagate”, a Portuguese newspaper reported in 2008 that over US $21 million was transferred to Angolan public offi cials via Portuguese banks, as allegedly evidenced by documents from a Paris court. The banks reportedly listed in the indictment include Caixa Geral de Depósitos (CGD), the Banco Comercial Portugués (BCP), Portugal’s two largest banks, as well as the Nacional de Crédito, Nacional Ultramarino (since absorbed by the CGD), Comercio e Industria, Totta & Açores, Pinto & Sotto Mayor (part of the BCP) and the Portuguese branches of Banco Bilbao Vizcaya and Barclays. 147 In other jurisdictions, in April 2011, it was reported that the German authorities were investigating a joint-venture majority-owned by the nuclear power company Areva SA. 148 It was also reported in 2009 that Chinese authorities were investigating allegations that the former general manager of the China National Nuclear Corporation had taken bribes from Areva. 149 The company was reportedly awarded a US $12 billion contract in 2007 to supply China with two nuclear reactors. 150 The former manager was jailed for life in November 2010 for corruption and for accepting US $1 million in bribes. 151 The French oil and gas engineering company Technip settled an FCPA case in the US in June 2010, agreeing to pay a total of US $338 million (US $98 million to the SEC in disgorgement and a US $240 million criminal penalty) following charges arising from a joint venture project for the construction of a liquid natural gas facility in Nigeria. 152 Nigerian authorities also detained Technip staff in November 2010 in relation to these allegations (see Section VI on Nigeria). 153 In December 2010, Alcatel Lucent, the French telecommunications company, and three of its subsidiaries reached settlements in the US in connection with alleged improper payments relating to the acquisition of telecommunications contracts in Costa Rica, Honduras, Malaysia and Taiwan in the period 2001 – 2006, as well as in connection with the use of third-party agents in Angola, Ivory Coast, Kenya, Mali, Nigeria, Uganda and Bangladesh. 154 Thereafter, the Malaysian Anti-Corruption Commission opened an investigation in December 2010, based on allegations that Alcatel had paid kickbacks to government offi cials in their country, allegedly to win a telecommunications contract worth US $85 million. In March 2011, state-owned Telekom Malaysia (TM) and mobile operator Axiata (a unit of TM) both reportedly suspended Alcatel from tenders for twelve months. 155 South African authorities announced in October 2010 that they were closing an investigation into alleged bribery of South African offi cials by Thales. 156 Oil and gas company Total SA is reportedly in negotiations with the US DOJ to settle an investigation into allegations that it paid bribes to Iranian offi cials to obtain contracts in the early 2000s to develop parts of Iran’s South Pars gas fi eld. 157 The company was also reportedly under investigation in Italy in 2010 for allegedly having paid bribes to obtain permission to extract oil in the Basilicata region. 158 144 International Rivers citing Africa Energy Intelligence No. 641, 8 December 2010, “Zambia: Alstom under EIB scrutiny over corruption allegations”, http://damsandalternatives.blogspot.com/2010/12/zambia-alstom-under-eib-scrutiny-over.html 145 New York Times, 24 December 2010, “Nigeria Drops Bribery Charges Against Cheney” http://green.blogs.nytimes.com/2010/12/24/nigeria-drops-bribery-charges-against-cheney/ 146 MSNBC, 29 April 2011, “3 acquitted in France-Angola arms traffi c trial” http://www.msnbc.msn.com/id/42815213 147 IPS, 4 November 2008, “„Angolagate“ Bribes in Local Banks” http://ipsnews.net/africa/nota.asp?idnews=44566 148 Reuters, 7 April 2011, “Offi ces in Areva-Siemens joint venture raided in bribery probe”, http://m.trust.org/trustlaw/news/german-prosecutors-raid-areva-np-in-bribery-probe 149 AFP, 5 August 2009, http://www.google.com/hostednews/afp/article/ALeqM5iywgDuOVtVC3yBJzkE9FoEsQcA3w 150 Ibid. 151 Bloomberg, 19 November 2010, http://www.businessweek.com/news/2010-11-19/china-nuclear-ex-chief-jailed-for-bribery-xinhua-says.html 152 Bloomberg Business Week, 28 June 2010, “Technip agrees to pay $338 million in case” http://www.businessweek.com/ap/fi nancialnews/D9GKDL2G0.htm 153 Bloomberg Business Week, 7 December 2010, “Nigeria in Talks With Technip, Eni and JGC Over Bribe Case”, http://www.businessweek.com/news/2010-12-07/nigeria-in-talks-with-technip-eni-and-jgc-over-bribe-case.html 154 Wall Street Journal, 28 December 2010, “Alcatel-Lucent settles US bribery charges”, http://online.wsj.com/article/SB10001424052970203731004576046191673517686.html ; International Business Times, 31 December 2010, “Alcatel-Lucent, subsidiaries settle corruption charges for $92 million” http://www.ibtimes.com/articles/96431/20101230/alcatel-lucent-subsidiaries-settle-corruption-charges-with-doj-for-92-mln.htm 155 AFP, 25 March 2011, http://news.malaysia.msn.com/regional/article.aspx?cp-documentid=4737078 ; The Star, 25 March 2011, http://biz.thestar.com.my/news/story.asp?fi le=/2011/3/25/business/8343435&sec=business 156 Financial Times, 24 October 2010, “Police accused of ANC bribe probe cover-up”, http://www.ft.com/cms/s/0/bd97d710-df8e-11df-bed9-00144feabdc0.html#axzz1FJTrH63k 157 Wall Street Journal, 15 March 2011, http://online.wsj.com/article/SB10001424052748704662604576202433125109202.html?mod=googlenews_wsj 158 Il quotidiano della Calabria, 4 May 2011 http://ilquotidianodellacalabria.ilsole24ore.com/it/Basilicata/potenza_Margiotta_ deputato_Total_assoluzione_corruzione_Woodcock_petrolio_8237.html ; La Nuova del Sud, 5 May 2011http://www.nuovadelsud.it/index.php?option=com_content&view=article&id=776:total-assolto-lonmargiotta&catid=4:cronaca &Itemid=2 34 Transparency International
Domestic bribery by foreign companies: No known cases or investigations. Inadequacies in legal framework: There is one main inadequacy in the legal framework in France, but overall the framework is adequate. French jurisdiction over crimes committed abroad, including corruption offences, is restricted. For French jurisdiction to apply, either the person who committed the offence or the victim must be French. According to Articles 113-6 and 113-7 of the Criminal Code, French law is applicable to an offence committed abroad if the offence is punishable in the country where it was committed, and is also applicable if the victim is French. The French public prosecutor can fi le charges only after a complaint by the victim or an offi cial denunciation by the government in the country where the offence was committed. Foreign bribery is classifi ed as a misdemeanour, for which there is a short statute of limitations of three years. This has not been problematic, though, as the statute begins to run after the last step in the chain of corruption and the period is extended if any procedural steps have been taken in the meantime. Furthermore, judges have decided that since corruption is a concealed offence, the starting point of the statute of limitations is the time when the offence was discovered rather than the time when it was committed. A more important inadequacy is a French law, a “blocking statute”, that gives companies the right to refuse to provide foreign investigative authorities with information. Inadequacies in enforcement system: The expert <strong>reports</strong> that the most signifi cant weaknesses are inadequate resources and diffi culties in obtaining mutual legal assistance. Legal framework and enforcement system regarding subsidiaries, agents and other intermediaries: Under French law, the parent company cannot be held responsible for an offence committed by a subsidiary, as it is considered an independent legal entity. But the parent company is responsible if it knew about the act of corruption. Concerning the jurisdictional limitations, if a subsidiary were to commit an act of corruption abroad, French criminal law would only be applicable to the foreign subsidiary if there were a link with French territory, that is, if (1) the victim were French; or (2) the parent company in France were considered an accomplice, but only if the offense were punishable by the foreign law; and (3) if there had been a fi nal judicial decision abroad on the case. Another possible link with French territory could be that the commission had been paid in France or that the promised advantage was in France. In French law, the criminal responsibility is personal. Recent developments: The European Court of Human Rights condemned France twice in 2010, in the Medvedyev and Moulin decisions, over the lack of independence of the public prosecutor. 159 A bill of law on plea bargaining has been prepared which would be applicable to corruption cases, including foreign bribery cases. In a landmark case of November 2010, the French Supreme Court opened to NGOs the right of action in criminal courts for wrongdoings related to corruption. Recommendations: Address weaknesses in the legal framework and enforcement system. Introduce a Procureur general de la République (independent public prosecutor), regardless of the pending decision concerning investigative judges – the prosecutor should be at the top of the hierarchy, be appointed by Parliament and have authority over the careers of prosecutors so pressure could not be used by government. Authorise judicial settlements in cases of corruption. GERMANY ACTIVE ENFORCEMENT: One hundred thirty-fi ve cases in total and 22 investigations underway. Share of world exports is 8.2 per cent. Foreign bribery cases or investigations: There are currently 22 prosecutions underway in Germany, while 20 cases have been concluded since 1 January 2010. Two former senior managers of Siemens AG telecommunications group were convicted in April 2010 in a Munich court of breach of trust and abetting bribery in connection with contracts in Nigeria and Russia. 160 One was sentenced to two years’ suspended sentence and fi ned D160,000 (US $230,000). The other was sentenced to one and a half years’ suspended sentence and ordered to pay D40,000 (US $57,000) to charity. 161 159 European Court of Human Rights: Case of Medvedyev and Others v France - http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=70291816&skin=hudoc-en&action=request; ECHR: Case of Moulin v. France - http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=70291926&skin=hudoc-en&action=request 160 Der Spiegel, 12 April 2010, “Gericht kündigt Bewährungsstrafen für zwei Manager an”, http://www.spiegel.de/wirtschaft/unter nehmen/0,1518,688465,00.html 161 Ibid. Progress Report 2011: Enforcement of the OECD Anti-Bribery Convention 35
Page 1: www.transparency.org
Page 4 and 5: FOREWORD The key fi nding of TI’s
Page 6 and 7: II. ORGANISATION AND METHODOLOGY Th
Page 8 and 9: COUNTRY-SPECIFIC FINDINGS US and Ge
Page 10 and 11: TABLE A: FOREIGN BRIBERY ENFORCEMEN
Page 12 and 13: IV. FINDINGS ON SPECIFIC ISSUES Thi
Page 14 and 15: LEGAL FRAMEWORK AND ENFORCEMENT SYS
Page 16 and 17: V. REPORTS ON ENFORCEMENT IN OECD C
Page 18 and 19: Legal framework and enforcement sys
Page 20 and 21: deal. 25 The Anti-Corruption Prosec
Page 22 and 23: to win EU framework contracts to as
Page 24 and 25: A local newspaper reported in Octob
Page 26 and 27: gift or another undue advantage, bu
Page 28 and 29: Recommendations: Adopt nationality
Page 30 and 31: offi ce were present during the que
Page 32 and 33: ESTONIA LITTLE OR NO ENFORCEMENT: N
Page 34 and 35: Another case, which has reportedly
Page 38 and 39: A former executive of German truck
Page 40 and 41: the bill lapsed. In terms of whistl
Page 42 and 43: Telekom. 197 Additionally, a Wikile
Page 44 and 45: public international organisations
Page 46 and 47: Recommendations: Require public com
Page 48 and 49: Recommendations: Introduce criminal
Page 50 and 51: Inadequacies in legal framework: Sa
Page 52 and 53: of the administrative, fi nancial a
Page 54 and 55: NEW ZEALAND LITTLE OR NO ENFORCEMEN
Page 56 and 57: POLAND LITTLE OR NO ENFORCEMENT: No
Page 58 and 59: are not treated as a suffi ciently
Page 60 and 61: Domestic bribery by foreign compani
Page 62 and 63: Inadequacies in legal framework: Th
Page 64 and 65: dropped due to lack of evidence and
Page 66 and 67: that the American-Swiss electrical
Page 68 and 69: Recommendations: Public prosecutors
Page 70 and 71: lawyers is reportedly seeking to re
Page 72 and 73: and SEC, Technip agreed to pay US $
Page 74 and 75: Inadequacies in enforcement system:
Page 76 and 77: prosecution agreement with the DOJ,
Page 78 and 79: 3. CUSTOMS PROCESSING FOR OIL AND G
Page 80 and 81: ledger accounts or “internal thir
Page 82 and 83: APPENDIX A 2011 OECD PROGRESS REPOR
Page 84 and 85: APPENDIX B 2011 QUESTIONNAIRE FOR N
Page 86 and 87:
2 CONCLUDED CASES For each conclude
Page 88 and 89:
III. LEGAL FRAMEWORK AND ENFORCEMEN
Page 90:
Our work is made possible by the ge
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