Am trimis chiar acum textul de mai jos către …

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Am trimis chiar acum textul de mai jos către Comisia LIBE din Parlamentul European, către Comisia Europeană, către Consiliul Uniunii Europene, precum și către toți europarlamentarii de la Bruxelles. Pe scurt, este vorba despre o solicitare temeinic documentată: Uniunea Europeană trebuie să redacteze o Rezoluție și să pornească un Mecanism de Cooperare și Verificare pentru toate statele membre care EXPORTĂ CORUPȚIE. Conform datelor oficiale ale OECD, precum și ale Departamentului de Justiție american, vorbim despre companii multinaționale care dau mită în străinătate în valoare de MILIARDE de EURO anual! În cazul unora dintre ele (cum este compania suedeză TELIA), pachete semnificative de acțiuni sunt deținute chiar de guvernele țărilor unde au fost înființate!

Iată solicitarea:

STOP the export of #CORRUPTION! I call for urgent measures: a EP Resolution and a Cooperation and Verification Mechanism for all EU member states exporting corruption through foreign bribery! Foreign bribery is a plague that affects tens of millions of European citizens!

As a European citizen and as a member of the Romanian Parliament, I am writing to express my deep concern regarding the high level of corruption exports within the European Union! Foreign bribery has reached such high levels that urgent action is required. The European Commission, the Council of the European Union and the European Parliament cannot keep closing their eyes and avoiding the subject.

OECD has been fighting against foreign bribery for over 20 years through the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The United States of America has been fighting against foreign bribery since 1977 through the Foreign Corrupt Practices Act (FCPA).

…But the European Union does NOTHING. This is simply unacceptable! The export of corruption should have been a major international concern for the European Union for decades now. But it is never too late to get on the right track…

For decades, all EU initiatives regarding „corruption”, „good governance” and „rule of law” dwelled only on developing countries, and never on industrialized ones. Everybody talks about internal corruption and no one talks about the export of corruption, about the grand corruption of wealthy multinationals. ONGOING DEBATES AND RESOLUTIONS ARE ISSUED ONLY ON BRIBE-TAKERS AND NEVER ON BRIBE-GIVERS!

If there is any honesty left there, then the focus needs to be shifted. Multinationals, supported by powerful Western governments and their numerous agencies, are engaging in corruption on a vast scale all around the globe! Real action against the grand corruption has to involve effective sanctions against multinationals engaging in corrupt practices. Also, there is an acute need for true political transparency in order to remove the secrecy under which the export of corruption flourishes.

Multinationals routinely pay bribes to gain contracts from other governments. A World Bank estimate places the total corruption involved in international trade at about $80 billion per year. Another survey conducted by the World Bank of 3600 firms found that 40% of the surveyed businesses pay bribes!

There are 5 EU multinationals in the TOP 10 biggest FCPA enforcement actions of all time (based on penalties and disgorgement assessed in the U.S. enforcement documents)! 5 out of 10, positions 2 to 6:

2. Telia Company AB (Sweden): $965 million in 2017.
3. Siemens (Germany): $800 million in 2008.
4. VimpelCom (Holland) $795 million in 2016.
5. Alstom (France): $772 million in 2014.
6. Société Générale S.A. (France): $585 million in 2018.

The main conclusion we can draw by analyzing the OECD and the FCPA reports on foreign bribery is the following: the wealthiest and most powerful EU countries have a DOUBLE STANDARD FOR BRIBERY – they discourage it at home, but indirectly encourage it abroad by tolerating the mischievous actions of their multinational companies! And we are not talking little bargains, we are talking TENS of BILLIONS per year! This is the real, the true, the BIG CORRUPTION within the European Union!

Therefore, I call for urgent measures: a EP Resolution and a Cooperation and Verification Mechanism for all EU member states exporting corruption through foreign bribery! The European Commission, the European Parliament and the Council of the European Union need to STOP the export of #CORRUPTION! Put an end to this PLAGUE affecting tens of millions of European citizens and hundreds of millions of citizens worldwide!

JUST A FEW RECENT EXAMPLES OF HUGE CORRUPTION EXPORTS WITHIN THE EUROPEAN UNION:

Foreign BRIBERY – Top EU countries exporting corruption

FRANCE

1. Société Générale S.A. – the total penalties to be paid by the bank exceed $1 billion.

The United States Department of Justice, Monday, June 4, 2018: Société Générale S.A. Agrees to Pay $860 Million in Criminal Penalties for Bribing Gaddafi-Era Libyan Officials and Manipulating LIBOR Rate.

Société Générale S.A. (Société Générale), a global financial services institution based in Paris, France, and its wholly owned subsidiary, SGA Société Générale Acceptance N.V., have agreed to pay a combined total penalty of more than $860 million to resolve charges with criminal authorities in the United States and France, including $585 million relating to a multi-year scheme to pay bribes to officials in Libya and $275 million for violations arising from its manipulation of the London InterBank Offered Rate (LIBOR), one of the world’s leading benchmark interest rates. SGA Société Générale Acceptance N.V. will plead guilty in the Eastern District of New York in connection with the resolution of the foreign bribery case. Together with approximately $475 million in regulatory penalties and disgorgement that Société Générale has agreed to pay to the Commodity Futures Trading Commission (CFTC) in connection with the LIBOR scheme, the total penalties to be paid by the bank exceed $1 billion.

2. Alstom – pays $772 million for FCPA settlement, SFO brings new charges

Paris-based Alstom pleaded guilty to bribing officials in Indonesia, Saudi Arabia, Egypt, and the Bahamas. It pays $772 million in criminal penalties to settle the charges.

“In total,” according to the US Department of Justice, “Alstom paid more than $75 million to secure $4 billion in projects around the world, with a profit to the company of approximately $300 million.”

*THE SPECIAL AIRBUS CASE STUDY:

COUNTRIES TARGETED BY ALLEGED BRIBERY: Austria, China, Greece, India, Indonesia, Kazakhstan, Kuwait, Mali, Mauritius, Pakistan, Poland, Saudi Arabia, Sri Lanka, Thailand, Tunisia, Turkey

TOTAL FINES AND OTHER MEASURES TO DATE: €81 million disgorgement and €250,000 fine (Munich, Germany); temporary withdrawal of export credit (UK); undisclosed settlement (Bremen, Germany)

As is apparent in many recent foreign bribery cases, the use of shell companies to cover the trail of money is also a feature of several strands of the Airbus saga. According to German magazine Der Spiegel, the Munich prosecutor leading the Eurofighters case suspected that “significant sums of money” from Vector (one of the two UK companies that received €114 million in payments from Airbus, or EADS as it was called at the time) were “to be used for bribery payments to decision makers … in Austria”. The magazine also claims that investigators were only able to find records pertaining to €9 million, with the rest passed on to shell companies in places such as Hong Kong, Singapore and the British Virgin Islands, raising suspicions that Vector maintained a slush fund for the entire company as a source of bribes, and not just for the fighter plane order from Austria. More recently, The Guardian reported an apparently unrelated series of questionable financial transactions involving €19m by two companies (Eolia and Avinco Holdings) alleged to be secretly controlled by Airbus, a large portion of which was then routed to a mysterious company via Panama. While there is no evidence in either case that the funds were ultimately used for bribery schemes, there remains no plausible explanation for why such large sums of money apparently went completely unaccounted for, and there are legitimate reasons to question the need for a leading company such as Airbus to engage in such secretive arrangements.

The Airbus case, and in particular the investigation into GPT Special Project Management in the UK, also highlights the potential for political interference in such high-profile cases. Although the case has been under investigation for more than five years and despite reports at the end of 2016 that the SFO was preparing to bring charges, the case remains unresolved. A recent study by the NGO Corruption Watch UK suggests that this may be due to strong political pressure to prevent or limit GPT’s prosecution because of the UK government’s desire to secure trade and defense-related deals with countries such as Saudi Arabia ahead of Brexit. This is despite the fact that Article 5 of the OECD Anti-Bribery Convention prohibits considerations of national economic interest or damage to relations with a foreign state when investigating and prosecuting bribery, and despite the serious reputational damage caused to the UK by the 2006 decision to close an investigation into allegations of widespread corruption by BAE Systems in a government to government contract in Saudi Arabia, for similar reasons of so-called national interest. As the Corruption Watch UK report notes: “The GPT investigation is a real test of the independence of the SFO and its ability to pursue overseas corruption investigations involving government to government contracts in highly sensitive contexts”. Such considerations are especially relevant to Airbus, given that the company is part-owned by the French and German governments and is a key strategic industry in both countries.

In 2016 Airbus, Europe’s aerospace giant, reported itself to Britain’s Serious Fraud Office (SFO) and to French authorities for lying to export-credit agencies about bribes given by consultants; it may end up paying as much as $3bn in fines—but could otherwise have faced a higher fine or even prosecution.

SWEDEN

Telia – $965 million in a global settlement

The Sweden-based telecommunications provider Telia Company AB has agreed to pay $965 million in a global settlement with the Securities and Exchange Commission, U.S. Department of Justice, and Dutch and Swedish law enforcement to resolve charges related to violations of the Foreign Corrupt Practices Act (FCPA) to win business in Uzbekistan. According to the SEC’s order, Telia entered the Uzbek telecommunications market by offering and paying at least $330 million in bribes to a shell company under the guise of payments for lobbying and consulting services that never actually occurred.

Of the stock, 37.3% of Telia is owned by the Swedish government. This means only one thing: the Swedish government EXPORTS CORRUPTION! Therefore, a Cooperation and Verification Mechanism is mandatory in the case of Sweden! Sweden has to stop the export of corruption or otherwise become the subject of a Resolution!

THE NETHERLANDS

1. VimpelCom – reaches $795 million resolution with U.S., Dutch authorities

Amsterdam-based VimpelCom Limited, the world’s sixth-largest telecommunications company, and its wholly owned Uzbek subsidiary, Unitel LLC, entered into resolutions with the DOJ, SEC, and Dutch authorities Thursday for paying more than $114 million in bribes to a government official in Uzbekistan between 2006 and 2012.

The settlement requires VimpelCom to pay a $230.1 million criminal penalty to the DOJ, $167.5 million in disgorgement and pre-judgment interest to the SEC, and $397.5 million to Dutch prosecutors. The U.S. penalties of $397.6 million made Thursday’s resolution the sixth biggest Foreign Corrupt Practices Act enforcement action in history.

2. SBM OFFSHORE

COUNTRIES TARGETED BY THE ALLEGED BRIBERY: Angola, Brazil, Equatorial Guinea, Iraq, Kazakhstan (the enforcement in Brazil is against domestic bribery)

TOTAL FINES AND OTHER MEASURES TO DATE: Criminal penalties of at least US$478 million

CASE DETAILS SBM Offshore N.V., a major Dutch corporation specializing in the design, construction and supply of offshore oil and gas drilling equipment, has been the subject of a series of foreign bribery enforcement actions in the Netherlands, the United States, the UK and Brazil (with the support of Swiss authorities) since 2014. Following its own internal investigation in 2014 into initial allegations of bribery made by a whistleblower and its report to the Dutch authorities, SBM Offshore entered into an out-of-court settlement with the Netherlands Public Prosecutor’s Service. The settlement related mainly to US$180.6 million in improper payments to sales agents and foreign government officials in Angola, Brazil and Equatorial Guinea between 2007 and 2011, and called for a payment by SBM Offshore of US$240 million in total (US$40 million fine and US$200 million disgorgement) in three instalments. After the Dutch settlement, the US Department of Justice (DoJ) initially announced that it was closing its own inquiry into the matter. However, the DoJ reopened the case in 2016 based on new information that a US-based executive of SBM’s wholly owned US subsidiary (SBM Offshore USA) managed a significant portion of the corrupt scheme within the jurisdiction of the United States. In court papers filed in November 2017, the DoJ alleged and SBM Offshore admitted that between 1996 and 2012, the company conspired to violate the US Foreign Corrupt Practices Act (FCPA) by paying more than US$180 million in commissions to intermediaries in Angola, Brazil, Equatorial Guinea, Iraq and Kazakhstan, in the knowledge that a portion of those commissions would be used to bribe public officials in those countries. The intermediaries were alleged to have paid bribes on behalf of SBM Offshore – in the form of cash, gifts, entertainment, jobs and tuition for foreign officials’ relatives – in order to secure improper advantages and obtain a total of US$2.8 billion in projects with various state-owned oil companies. A significant portion of the alleged bribery scheme is linked to the Petrobras bribery scandal in Brazil. According to a DoJ representative, the corrupt scheme “involved some of the highest-level executives within the company, spanned five countries and lasted for more than a decade”. As a result of the reopened investigation, SBM Offshore agreed to pay a further criminal penalty of US$238 million under a published deferred prosecution agreement (including US$500,000 as a criminal fine and US$13.2 million as forfeiture paid by SBM Offshore N.V. on behalf of SBM Offshore USA). In connection with the resolution, SBM USA pleaded guilty of conspiracy to violate the FCPA.

The SBM case demonstrates how use of shell companies allows such schemes to go undetected. According to the charges filed by the US authorities, SBM Offshore N.V. and its subsidiaries used four intermediaries, including a Brazilian individual who owned several Brazil-based intermediary companies and British Virgin Islands-based shell companies. Additionally, the company used two Monaco-based intermediaries and one Milan-based intermediary. The charges stated that at the request of its intermediary in Brazil, SBM would split its “commission” payments into two accounts, transferring one portion to bank accounts in Brazil held in the name of the intermediary’s oil and gas services companies, and another, larger, portion to bank accounts in Switzerland held in the names of the same intermediary’s shell companies. The intermediary then wired a portion of the Swiss-based funds to bank accounts under the control of Petrobras officials as bribes. A similar arrangement was made with regard to another intermediary’s transfers to Kazakhstan, with the amounts split between Italy and Switzerland. In the case of a third intermediary, SBM paid its “commissions” to a bank account in Switzerland controlled by the intermediary, who used the funds transferred to make wire transfers to bank accounts under the control of Angolan state oil company Sonangol and its US subsidiary Sonusa, as well as officials in Equatorial Guinea.

GERMANY

1. Siemens – a.k.a. „the serial briber”: a record total of $1.6 billion to American and European authorities to settle charges that it routinely used bribes and slush funds to secure huge public works contracts around the world!

Siemens bribed the two main political parties in Greece for a decade. Officials said that Siemens, beginning in the mid-1990s, used bribes and kickbacks to foreign officials to secure government contracts for projects like a national identity card project in Argentina, mass transit work in Venezuela, a nationwide cellphone network in Bangladesh and a United Nations oil-for-food program in Iraq under Saddam Hussein.

“Their actions were not an anomaly,” said Joseph Persichini Jr., the head of the Washington office of the Federal Bureau of Investigation. “They were standard operating procedures for corporate executives who viewed bribery as a business strategy.”

2. Not bribing, just cheating… Volkswagen – a.k.a. „the serial cheater”. The DIESELGATE scandal! Challenge: can anyone still count the BILLIONS?

The company has so far paid fines and penalties of EUR 27.4 billion. Volkswagen failed to inform the market about what happened, which only came to light after the US Environmental Protection Agency released these illegalities in September 2015.

Volkswagen should have informed the market that it has cheated and generated billions,” said Andreas Tilp, one of the lawyers involved.

The Volkswagen car giant was also sued by more than 1,600 investors, claiming EUR 9.2 billion (USD 10.6 billion) of damages as a result of the losses suffered as a result of the Dieselgate scandal. This is 1,670 complaints from investors as a result of the fall in the share price after the scandal in September 2015.

EXPORTING CORRUPTION – PROGRESS REPORT 2018 (Transparency international): OVER HALF OF GLOBAL EXPORTS COME FROM COUNTRIES THAT FAIL TO PUNISH FOREIGN BRIBERY!

A significant number of parties to the OECD Anti-Bribery Convention (Convention on Combating Bribery of Foreign Public Officials in International Business Transactions) face challenges in their enforcement systems.

Finland has dropped significantly from Moderate Enforcement to Little or No Enforcement, largely because it has opened no new investigations or cases, and none of the prosecutions mentioned in the 2015 report resulted in sanctions. Austria has also dropped from Moderate to Limited Enforcement.

The legal provisions on corporate liability and related fines are insufficient in several countries including Austria, Germany and Sweden. In Austria, the maximum financial sanction for a company convicted of foreign bribery is €1.3 million, which is not commensurate with the nature and size of many Austrian companies. In Sweden, the maximum fine for companies engaged in international bribery is approximately €1.2 million, which the OECD WGB considers “inadequate”. The limit for fines in Germany is €10 million – too low to be dissuasive – although disgorgement of profits can be imposed separately.

Nevertheless, in several countries, concerns have been raised about the way settlements are concluded. The UN Convention against Corruption first cycle review of Belgium found insufficient transparency, predictability and proportionality in entering into plea bargains and out-of-court settlements. In France, there are concerns about the new DPA framework, including the lack of guidelines on how judges should independently review the settlement to ensure compliance with the law. In the Netherlands, the system for settlements is undermined by lack of transparency, guidelines and a role for an independent court. Settlements currently lack any legal basis for including important aspects such as a monitor or an obligation to report to the authorities.

In Finland, by contrast, there are concerns that the new plea-bargaining regime is not available to legal persons and that there are few incentives for individuals to enter into a plea bargain, given the extremely low likelihood of conviction.

Examples:

1. AUSTRIA – Limited enforcement

INVESTIGATIONS AND CASES
In the period 2014-2017, Austria opened only two foreign bribery cases and concluded one case.

INADEQUACIES IN LEGAL FRAMEWORK

The financial sanctions provided for in the Corporate Responsibility Act remain low by international standards and are too low to have a deterrent effect. The maximum financial sanction for a company convicted of foreign bribery is €1.3 million (US$1.6 million), which is not commensurate with the nature and size of many Austrian companies. The Leniency (State’s Evidence) Law, which was extended in 2016 for another five years, does not provide for sufficient protection of cooperative witnesses from prosecution in another country (the ne bis in idem principle).

TRANSPARENCY OF ENFORCEMENT DATA
Enforcement data is not publicly available. Data on the total numbers of prosecutions and cases concluded is available from the authorities on request. Court decisions not subject to appeal are available online. Other decisions are selectively published, without the names of the accused. The Austrian authorities publish statistics on the number of requests for mutual legal assistance (MLA) made to and received from other countries, but not specifically related to foreign bribery cases.

2. BELGIUM – Limited or no enforcement

TRANSPARENCY OF ENFORCEMENT DATA Belgium does not publish statistics on the number of opened foreign bribery investigations, cases commenced or cases concluded. Nor does it publish any data on requests for mutual legal assistance (MLA) made and received. However, Belgium issued a circular in November 2015 to improve the electronic recording of statistics on criminal proceedings for economic and financial crime and corruption.

INADEQUACIES IN LEGAL FRAMEWORK
The OECD WGB criticized the dual criminality requirement imposed by article 10quater, paragraph 2 of the Belgian Code of Criminal Procedure. The WGB noted, inter alia, that it means that Belgium cannot prosecute if foreign bribery is not a criminal offence in the country where it is committed and requires the prosecuting authorities to produce an additional element of proof. The OECD WGB also found insufficient opportunities to suspend the statute of limitations to allow adequate time to conduct foreign bribery investigations and prosecutions. In practice, five years are needed to start a criminal investigation and up to 10 years to obtain a final conviction verdict. According to the WGB, private-sector whistleblower protection is inadequate. It must also be noted that Belgium has not adopted any specific regulatory legislation on the prevention of corruption which would apply to the private sector.

INADEQUACIES IN ENFORCEMENT SYSTEM
According to the OECD WGB in 2013 and 2016, there is insufficient transparency in out-of-court criminal settlements. Belgium has not implemented the OECD WGB’s recommendation “to make public, as necessary and in compliance with the relevant rules of procedure, the most important elements of settlements concluded in foreign bribery cases, in particular the main facts, the natural or legal persons sanctioned, the approved sanctions and the assets that are surrendered voluntarily”. There are inadequate resources for law enforcement and judicial authorities to prosecute transnational bribery. This is notable given the important caseload linked to transnational corruption cases involving European officials referred to the Belgian authorities by OLAF. A growing backlog of cases and shortages of judges can cause significant delays in the courts, leading to the dismissal of investigations, indefinite postponing of cases, and the expiry of the statute of limitations for certain transnational bribery cases.

3. DENMARK – Little or no enforcement

TRANSPARENCY OF ENFORCEMENT DATA
Denmark does not publish statistics on foreign bribery investigations, cases commenced or cases concluded. Important Danish court decisions are published in the official judicial journal (Ugeskrift for Retsvæsen) which can be accessed either via a fee-paying subscription or from public libraries. Copies of court decisions can be obtained, for a fee, from the relevant court if the requester knows the case number. However, the public is not informed of cases opened or concluded, which makes it challenging to follow them. Likewise, the public may request information on penalty notices issued to a company (but not a natural person) under a settlement, but as the public is not informed of settlements, this is also somewhat redundant. Denmark does not publish statistics on requests for mutual legal assistance (MLA) made and received.

INADEQUACIES IN LEGAL FRAMEWORK
Danish anti-bribery legislation still does not cover trading in influence. Although it has been encouraged to do so by the OECD WGB, Denmark has not increased the maximum sentence for false accounting offences in Sections 296(1)(2) and 302 of the Criminal Code. Regarding corporate liability, the WGB raised substantial concerns in 2015 that prosecutorial guidelines reduced the basis for imposing corporate liability, noting that Denmark planned to issue new guidelines. However, no such guidelines have been issued to date. Denmark has no specific laws to protect whistleblowers, other than protection from dismissal of whistleblowers in the financial sector. A 2015 report by a government-commissioned expert committee advised against introducing special whistleblower protection legislation. No steps have been taken to establish a clear framework for out-of-court settlements in Denmark. The country has not yet been successful in getting Greenland and the Faroe Islands to agree to be parties to the OECD Convention.

INADEQUACIES IN ENFORCEMENT SYSTEM
Denmark has yet to investigate widely publicized foreign bribery allegations involving major Danish companies that have surfaced since the OECD Phase 3 Report in 2013, and has failed to reopen cases that were of concern in the Phase 3 Follow-up Report in 2015. SØIK has not increased the number of prosecutors or investigators. Two prosecutors have been trained to investigate foreign bribery cases, although neither is currently working on such cases at SØIK. However, one police investigator has been trained to investigate foreign bribery cases and is working on such cases at SØIK. Investigators and prosecutors are not given guidance on the definition of foreign public officials. In 2014, the European Commission suggested that further efforts be undertaken to fight foreign bribery, for example, by raising the level of fines for corporations. This has yet to happen. Denmark has not issued any official guidance on self-reporting for individuals or legal persons.

4. FINLAND – Little or no enforcement

INVESTIGATIONS AND CASES
Finland did not commence any new investigations or cases in the period 2014-2017. All five prosecutions for foreign bribery previously reported resulted in acquittals either in the District Court or on appeal. The sole conviction obtained in one of these cases was on charges of false accounting.

TRANSPARENCY OF ENFORCEMENT DATA
Finnish authorities do not publish statistics on foreign bribery investigations, cases commenced or cases concluded. The police, the Ministry of Justice, the prosecutor and the Statistical Centre all publish various statistics about crimes and investigations, but these are mostly general, and extracting relevant information is time-consuming and difficult.

INADEQUACIES IN LEGAL FRAMEWORK
Finland continues to lack clear, comprehensive whistleblower protection legislation. Provisions are fragmented across different regulatory instruments, and while failure to report a serious offence is punishable under the Criminal Code, the list of offences covered does not include corruption. In its Phase 4 Report in March 2017, the OECD WGB welcomed the introduction of Finland’s new plea bargaining regime, but raised concerns that it is not available to legal persons and that there are few incentives for individuals to enter into a plea bargain given the current extremely low likelihood of conviction in the country.

INADEQUACIES IN ENFORCEMENT SYSTEM
The OECD WGB in its Phase 4 Report raised “serious concerns” regarding the 100 per cent acquittal rate for foreign bribery in Finland to date, due – among other court practices – to the Finnish courts’ interpretation of the foreign bribery offence and the extremely high evidentiary threshold applied. The WGB was also concerned about limited awareness of the foreign bribery offence within the judiciary, the absence of regular training for judges and the lack of specialization of courts and judges. Another key issue is the lack of specialized prosecutors or law enforcement officials or any kind of anti-corruption body. As a result, there is no funding allocated in the budget specifically for the fight against corruption, apart from one individual at the National Bureau of Investigation and 1.5 in the Ministry of Justice. There is also a lack of adequate training and resources for specialized police officers and prosecutors. The WGB expressed concern about the Prosecution Service’s stretched resources.

5. FRANCE – Limited enforcement

INVESTIGATIONS AND CASES
Between 2014 and 2017, France opened 40 investigations, commenced one case, and concluded two cases.

INADEQUACIES IN LEGAL FRAMEWORK
The “blocking statute” prohibits French companies from providing foreign enforcement authorities with information directly requested for use in their bribery investigations. It aims to prevent a foreign authority from obtaining commercially or politically sensitive information. This law forces authorities to use international conventions or to ask French authorities to obtain the information on their behalf. This could stall or prevent foreign bribery investigations when conducted by a foreign authority without permission of the French authorities. There are some concerns about the new settlement framework, including the lack of guidelines on how judges should independently review the settlement in order to ensure its compliance with the law. The Ministry of Justice’s criminal policy circular of January 2018 provides only very general guidance and is not binding378. Furthermore, settlements do not necessarily require offending companies to cooperate and self-disclose wrongdoing and the procedure does not provide for the confiscation of illicitly-gained assets.

INADEQUACIES IN ENFORCEMENT SYSTEM
French courts are often overburdened and underresourced, which undermines timely enforcement of cases involving bribery and corruption. These inadequacies may be countered in part by the introduction of the settlement procedure, which has to date been applied four times, as well as new investigation techniques (as in Airbus). However, in addition to the concerns about the settlement framework, there are only limited guidelines (those issued in January 2018) as to how the prosecutor should conduct negotiations and what factors it should take into consideration in determining the amount of the fine. (The practice of prosecutors currently being developed also provides some guidance.) The CJIP in the HSBC case raises concerns because it did not establish all the conditions that should be respected if settlements are to be used. For example, HSBC does not appear to have given any guarantee of “good behavior” in the future. Furthermore, French magistrates are reluctant to confiscate the proceeds of active bribery. According to the OECD, as of October 2014, “no asset [had] been seized and managed […] in relation to a foreign bribery case”.

INADEQUACIES IN MUTUAL LEGAL ASSISTANCE
The 2014 OECD WGB Phase 3 Follow-Up report on France found that France had yet to act on its earlier recommendation that measures be taken “to ensure that the granting of [mutual legal] assistance in foreign bribery cases not be influenced by considerations of national economic interest under the guise of protecting ‘the fundamental interests of the nation.’”

IMPORTANT RECOMMENDATION:
Ensure that confiscated assets benefit the countries that have been unjustly deprived of them.

6. GERMANY

TRANSPARENCY OF ENFORCEMENT DATA
The Federal Ministry of Justice does not publish enforcement statistics on opened investigations, cases commenced or cases concluded. Federal court decisions are published in full. However, decisions in corruption cases are made at the regional level, and such decisions are neither published nor easily available on request. Statistics on requests for mutual legal assistance (MLA) made and received are also not officially published.

INADEQUACIES IN LEGAL FRAMEWORK
In Germany, liability of legal persons is regulated in the Administrative Offences Act, rather than the Criminal Code. The limit for fines for intentional wrongdoing is €10 million, and for negligence, €5 million, too low to be dissuasive, even though disgorgement of profits can also be imposed. In addition, the Act gives prosecutors discretion over whether to start investigating a legal person.

INADEQUACIES IN ENFORCEMENT SYSTEM
The OECD WGB Phase 4 Report on Germany in 2017 praises Germany for high enforcement against individuals, but criticizes a lack of enforcement against legal persons. Given that acts of managers are attributed to companies, this lack of enforcement is troubling. As a first step, prosecution against companies would need to be made mandatory as part of the planned reform of corporate liability. In order for penalties to be “dissuasive”, they need to be published. It is not enough to rely on the media to report cases and penalties imposed. At the appeals level in federal courts, decisions are published. Regional and local courts should do the same and not only make cases available upon request. Sanctions imposed by termination orders under Section 153a Code of Penal Procedure and other cases resolved without a full trial should at least be summarized in an annual corruption report, based on the information provided to the OECD Working Group on Bribery.

IMPORTANT RECOMMENDATION:
Publish basic information about cases of foreign bribery, including terminations of proceedings and cases against companies, in an annual corruption report.

„Germany is commended for its focus on holding culpable individuals liable, however, with companies held liable in only a quarter of the concluded foreign bribery cases there are concerns that there is insufficient enforcement against companies, according to a new report by the OECD Working Group on Bribery.”

„The Working Group, however, raises concerns about the low corporate enforcement rate as well as an inconsistent approach to holding companies liable across the different Länder (states) in Germany. The report also notes that the sanctions imposed on both individuals and companies are not always sufficiently deterrent and that whistleblower protection needs to be reinforced.”

„The Group made a range of recommendations to Germany, including to: Review its overall approach to holding companies liable for foreign bribery and proceed with the 2018 Coalition Agreement to review the principle of prosecutorial discretion Introduce clear and transparent guidance on the procedures and criteria attached to self-reporting by companies when concluding a foreign bribery case Consider introducing a system of resolutions for companies as part of its efforts to increase enforcement against companies Ensure the consistent compilation at Federal and Länder level of statistics relevant to the monitoring of the enforcement of German legislation implementing the OECD Anti-Bribery Convention Ensure that sanctions imposed for foreign bribery or related alternative offences are always sufficiently deterrent, particularly for large companies”

7. LUXEMBOURG – Little or no enforcement

INVESTIGATIONS AND CASES
There were no known investigations or prosecutions of foreign bribery during the period 2014- 2017. In 2017 it was reported that Argentinian authorities had opened a foreign bribery investigation relating to Tenaris, a global manufacturer of steel pipes headquartered in Luxembourg (a subsidiary of Techint) but there are no reports of an investigation in Luxembourg. In 2015, the Belgian authorities issued an indictment accusing an ex-minister of the Walloon regional government of bribing a government official from the Democratic Republic of Congo on behalf of a steel company based in Luxembourg. There are no reports of an investigation in Luxembourg.

INADEQUACIES IN LEGAL FRAMEWORK
A March 2017 European Parliament report found Luxembourg (along with the Baltic States and Cyprus) among EU countries disproportionally threatened by money laundering in relation to their Gross Domestic Product. It noted that in the Panama Papers, Luxembourg was linked to 10,877 offshore entities, the second highest number after the UK. The OECD WGB, in its Phase 3 Follow-Up Report in 2013, considered that the majority of the recommendations made by the group in 2011 (such as those in relation to offence, liability of legal persons, accounting and audit) remained unimplemented. Out of 24 recommendations, the group considered that seven were fully implemented, nine were partially implemented and eight remained unimplemented.

8. THE NETHERLANDS – Limited enforcement

SHORT HISTORY
In 2014, SBM Offshore NV agreed to pay the Netherlands US$240 million in fines and forfeited proceeds of crime in relation to commissions paid to sales agents in Equatorial Guinea, Angola and Brazil. Telecom company VimpelCom Ltd and its subsidiary Silkway Holdings BV paid the Netherlands US$397.5 million in 2016 as part of a global settlement of US$795 million in fines and forfeited proceeds of crime, orchestrated by US authorities. The settlement relates to bribes of approximately US$114.5 million paid in connection with entering the Uzbek telecom market in 2006 and obtaining licences. In 2017, three Rotterdam-based subsidiaries of the Stockholm-based international telecom provider Telia Company AB paid the Netherlands US$274 million, also in relation to bribery of foreign officials to operate in the Uzbek telecom market. As with VimpelCom, this was part of a global settlement announced by US authorities, involving a total financial sanction of US$965 million. In December 2013, the accountancy firm KPMG reached a €7 million settlement with the Dutch authorities in relation to allegations that it had helped the Dutch construction company Ballast Nedam disguise suspicious payments to foreign agents in order to obtain business in Saudi Arabia. Ballast Nedam settled with the Dutch authorities for €17.5 million in 2012. The settlements with both corporations were paired with criminal investigations into five individuals. Two are former Ballast Nedam directors who allegedly profited personally from the money paid in Saudi Arabia and Surinam. The court cases commenced in December 2017. The other three individuals are former accountants from KPMG, who have recently been formally accused of hiding the bribes through shadow accounting. A Dutch court declared the charges inadmissible, stating
inter alia that the DPPS had acted unfairly and there was an improper weighing of interests. The DPPS appealed this decision in April 2018. In 2016, a court case (in absentia) was conducted which concerned charges brought against Takilant Ltd, a mailbox company registered in Gibraltar, accused of having received payments of over €300 million from VimpelCom and Telia Company AB to enable their Uzbek subsidiaries, Unitel and Ucell, to gain permits to operate in the local mobile telephone market. In 2016, the Amsterdam District Court found Takilant guilty of complicity to commit passive bribery, sentenced it to a fine of €1.58 million, and ordered the criminal confiscation of 1,080 registered shares and forfeited proceeds of crime of €123 million. The Dutch Fiscal Information and Investigation Service has been investigating ING Bank NV since 2016 on suspicion of facilitating international corruption and money laundering. The bank is suspected of failing to report, in a timely manner, unusual transactions by VimpelCom and Telia Company AB for payments into the bank accounts of Takilant. In 2017, the DPPS further offered a settlement to E&Y for failure to report unusual transactions of VimpelCom. E&Y rejected this offer and was summoned to appear in criminal proceedings before the District Court of Amsterdam.

TRANSPARENCY OF ENFORCEMENT DATA
Enforcement data is not published by the Dutch authorities. Not all investigations are made public, though some are announced by the DPPS. In some cases, investigations are first made public by companies, via their annual reports. Court decisions are published in full, though anonymised. Settlement agreements are not published in full, but are accompanied by a press release and, since 2016, a public statement of facts. Statistics on mutual legal assistance (MLA) are not recorded.

INADEQUACIES IN LEGAL FRAMEWORK
The DPPS has yet to prosecute an individual for their responsibility in foreign bribery, the key reason given being jurisdictional limitations concerning the prosecution of foreign individuals employed by Dutch companies who committed their crimes outside the Netherlands. The system for settlements is undermined by lack of transparency, the absence of any role for an independent court, and the lack of a legal basis for Dutch settlements to include important aspects such as a monitor or obligatory future reporting to the DPPS. Settlement amounts in cases of foreign corruption compared to national corruption (either as a settlement or imposed by local courts) are much higher. Clear guidelines for companies on what to expect when they report or enter into settlement negotiations are lacking. In addition, there are no clear rules to ensure that forfeited amounts of proceeds of crime are returned to the countries where the profits were originally earned. Regarding mailbox companies and the role of service providers in facilitating foreign bribery, the Netherlands has still not set up a register of ultimate beneficial owners as part of implementation of the EU’s 4th Anti- Money Laundering Directive – which partially addresses these issues.

INADEQUACIES IN ENFORCEMENT SYSTEM
Even though resources for enforcement have increased markedly, it remains to be seen whether the justice system is capable of effectively conducting full trials against larger Dutch companies and their management. Up to 2017, the only foreign bribery case ever brought to court, against Takilant Ltd, was a trial in absentia.

There is a lack of focus on awareness-raising of corruption as a separate issue, especially among small and medium-sized enterprises. Corruption is generally addressed in the context of corporate social responsibility (CSR), and mainly through a sectoral approach. A broad, overarching understanding of the risks and implications of corruption and its negative impact on human rights and the environment is lacking within the government’s policy to raise awareness of foreign bribery as an offence.

RECOMMENDATIONS
• Evaluate and improve protection for whistleblowers.
• Fully implement the EU’s 4th Anti-Money Laundering Directive, including the establishment of a register of ultimate beneficial owners.
• Develop a better policy on settlements, including consideration of the role of victims and asset recovery, identification of jurisdictional limitations concerning foreigners employed by Dutch companies, and a sentencing guideline.
• Increase the number of cases concerning foreign bribery actually prosecuted in court (not merely resulting in out-of-court settlements) and conduct a full trial in court against one or more persons or companies responsible for active foreign bribery.
• Expand the jurisdiction over foreigners employed by Dutch companies for foreign bribery under certain conditions.
• Raise awareness, especially among small and medium-sized enterprises on their possible role in foreign bribery and the consequences.

9. SWEDEN – Moderate enforcement

TRANSPARENCY OF ENFORCEMENT DATA
Statistics on enforcement data and on mutual legal assistance (MLA) requests are not publicly available.

INADEQUACIES IN LEGAL FRAMEWORK
Provisions for holding corporations responsible for bribery remain inadequate, particularly relating to fines. The maximum fine for companies that engage in international bribery is approximately €1.2 million, which the OECD WGB considers to be “inadequate, given the size of the Swedish economy, sectors of business activity, and trade and investment partners”. The OECD WGB recently decided to postpone the Phase 4 evaluation of Sweden due to lack of progress in these areas.

INADEQUACIES IN ENFORCEMENT SYSTEM
The low number of foreign bribery investigations and cases suggests that foreign bribery enforcement is not proactively pursued by the Swedish authorities. Police officers could benefit from improved technical expertise.

KEY FINDINGS

„The case studies expose systemic failures in the prevention and detection of foreign bribery. Recurring challenges that must be tackled include the use of shell companies in many countries as vehicles to facilitate the payment of bribes, arranged with the assistance of lawyers as intermediaries. There is also a repeated failure of anti-money laundering controls to stop suspicious transactions, with bankers and real estate agents facilitating corrupt financial flows and the concealment of proceeds of corruption, and accountants and auditors failing to identify and report suspicious behavior.”

CONCLUSIONS

Multinational corporations’ corrupt practices affect the EU and world citizens in many ways: „undermine development and exacerbate inequality and poverty; disadvantage smaller domestic firms; transfer money that could be put towards poverty eradication into the hands of the rich; distort decision-making in favour of projects that benefit the few rather than the many; increase debt; benefit the company, not the country; bypass local democratic processes; damage the environment; circumvent legislation; and promote weapons sales”.

„How is the absence of effective criminalization of foreign bribery in certain countries still an impediment to effective international cooperation in foreign bribery cases?” This was the main question debated at a roundtable discussion in Paris on 12 December 2017 on the occasion of the 20th Anniversary of the OECD’s Anti-Bribery Convention. Elisa Hoven, law professor in Cologne, provided the most critical and eye-opening assessment of enforcement practices. Hoven called for more self-criticism considering that half of the member states have failed to prosecute even a single case of foreign bribery in twenty years! Even among the active states, we don’t know how many cases remain undetected, authorities are often reluctant to cooperate with requests for mutual legal assistance, and many cases are settled without much fanfare rather than resulting in convictions.

By bribing officials, multinational companies are in turn perpetuating a system that undermines the relationship between businesses and governments around the world, creating a form of corporate inequality where cash-rich corporations get all the breaks. In other words, it undermines both democracy and law, and funnels money away from otherwise moral companies and governments, and into the hands of corrupt officials and business owners.

Large multinational companies, for instance, appear to be much fonder of offering illicit cash for quiet favors than smaller corporate entities.

Senior management—sometimes even very senior management—was aware of, or complicit and even instrumental in more than half of the foreign bribery observed.

A study of 427 corporate corruption cases published by the OECD in 2014 found that the CEO or other high-ranking staff knew about decisions to pay bribes in 53% of the cases.

On the face of it, anti-bribery pressure on European firms should increase further still. America’s regulators will surely continue imposing big fines. A Nordic telecoms firm, Telia, was fined nearly $1bn last September, for example, after an investigation by American and Dutch prosecutors into bribery in Uzbekistan. Rolls-Royce, a British engine-maker, for example, reached a DPA in 2017 under which it paid about £500m ($666m) to settle bribery allegations.

The present letter was written with the establishment of special anti-bribery mechanism in mind, (responding to a call by Resolution of 10 June 2015 of the European Parliament) in order to create an annual monitoring of compliance with the rule of law in all Member States. EU desperatly needs to establish a FOREIGN-BRIBERY Scoreboard on the basis of common and objective indicators!

The EU should set even higher standards than other international mechanisms!

Therefore, I call for urgent measures: a EP Resolution and a Cooperation and Verification Mechanism for all EU member states exporting corruption through foreign bribery! The European Commission, the European Parliament and the Council of the European Union need to STOP the export of #CORRUPTION! Put an end to this PLAGUE affecting tens of millions of European citizens and hundreds of millions of citizens worldwide!

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