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Viewing cable 05PARIS5176, OECD REPORT: WORKING GROUP ON BRIBERY, HELD ON
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Reference ID | Created | Released | Classification | Origin |
---|---|---|---|---|
05PARIS5176 | 2005-07-27 09:41 | 2011-08-24 00:00 | UNCLASSIFIED | Embassy Paris |
This record is a partial extract of the original cable. The full text of the original cable is not available.
UNCLAS SECTION 01 OF 09 PARIS 005176
SIPDIS
FROM USOECD
STATE FOR EB/IFD/OIA, INL/C, EUR
DOJ FOR CRIMINAL DIVISION/FRAUD SECTION/MENDELSOHN
USDOC FOR ITA/MAC/MTA/BARLOW
USDOC FOR OGC/NICKERSON
SEC FOR ENFORCEMENT/RGRIME
SEC FOR INTL AFFAIRS/TBEATTY
E.O. 12958:N/A
TAGS: KCOR ECON ETRD EINV PREL UK OECD
SUBJECT: OECD REPORT: WORKING GROUP ON BRIBERY, HELD ON
JUNE 14-16, 2005
-------
SUMMARY
-------
¶1. On the June 14-16 meeting of the OECD Working Group
on Bribery (WGB), the Tour de Table of recent
enforcement developments (see Paras. 18-26) reconfirmed
that the U.S. remains far and away the most aggressive
enforcer of the foreign bribery offense. France was
particularly disappointing, showing little interest in
following up media reports about foreign bribery by
French firms, or even a recent World Bank debarment
action against a Thales subsidiary; the UK also
provided little new information on various
investigations underway. As part of its written follow-
up report in response to Phase 2 review
recommendations, Germany provided a list of foreign
bribery cases, many of which have been closed (see
Paras. 13-16). Norway also delivered a Phase 2 follow-
up report (see Para. 17).
¶2. The WGB plenary considered the Phase 2 peer review
examinations of Belgium and Sweden, giving both
countries favorable assessments (see Paras. 8-12). The
WGB recommended that Belgium amend its law to include
an explicit prohibition of tax deductibility of "secret
commissions" and do more to ensure that the business
community understands that bribery of foreign public
officials is a crime. While praising Sweden's efforts,
the WGB made a number of recommendations for further
improvements, including ensuring that the notion of a
foreign public official under Swedish law includes all
elected officials and agents of public international
organizations, even those of which Sweden is not a
member, and completing the reform of the system of
liability of legal persons so that there are no
obstacles to imposing corporate fines.
¶3. An informal meeting June 13 considered the
Secretariat's initial draft outline of the Mid-term
SIPDIS
Study of the Phase 2 reviews. The U.S. welcomed the
outline, but objected to inclusion of a focus on areas
for further development, stating that the review should
stick to identifying horizontal issues and common
challenges drawn from a comparison of Phase 2 reviews
conducted to date. The WGB Chairman agreed; France and
the UK also supported the U.S. comments. The outline
will be refined and completed in time for discussion at
the next WGB meeting, in October. End summary.
---------------
MID-TERM REVIEW
---------------
¶4. The WGB held an informal meeting to discuss the
Secretariat's annotated outline of the first part of
SIPDIS
the Mid-term Study of the Phase 2 Reviews. While
discussions at the WGB meeting in March 2005 indicated
the first part of the Study would analyze progress made
in implementing the Convention, including positive
developments and challenges, the Secretariat's draft
outline also included a focus on "areas for potential
development". In written comments submitted before the
meeting and in verbal comments in the informal meeting
itself, USDel stressed that the principal focus of the
Mid-Term Review Study should be to identify horizontal
issues and challenges that have been identified by the
Phase 2 examinations, both for further discussion and
to sharpen the focus of continued peer review. USDel
stated that we do not believe there should be a focus
on areas for further development, and noted that we did
not get the impression from the documentation prepared
for the March WGB meeting and from plenary discussion
at the meeting that there would be an intent to focus
on such areas.
¶5. USDel indicated that the WGB could certainly
attempt to draw conclusions on the basis of plenary
discussion of the completed study, perhaps assisted by
an ad-hoc drafting group, open to all parties. France
and the UK supported the U.S. comments. In response,
Chairman Mark Pieth said the clear view is that the
Study should be largely retrospective and concentrate
on the "positives and problems," i.e., focusing on what
is working well and what is not working well. We don't
need to solve horizontal issues now, he stated, but a
list of such issues could be developed for the WGB to
consider, and to lead into the next step of the planned
review of the 1997 Revised Recommendation.
¶6. Verbal and written comments by Norway, Sweden, the
UK and Australia were largely focused on process.
USDel, while noting these comments, stressed that the
procedures were in general working well. France
supported the U.S., saying it is important the
examination process be level. A number of delegations
asked that the proposed recommendations included in the
final Phase 2 report be circulated to the examined
country and the WGB in advance of the plenary. For
example, Denmark said the practice in some other OECD
fora (like the Development Assistance Committee) is to
make recommendations in advance, so that the examined
country gets a first chance to respond.
¶7. Summarizing comments, Pieth said changes might be
made to procedures if they did not affect the standards
of the review process. In this regard, Pieth sees two
areas for possible focus in the Study: technical-level
changes, such as improving the questionnaire, and
timing-issues, such as providing the text of the
recommendations in advance. Pieth and OECD Anti-
corruption Division Head Patrick Moulette urged
delegates to send in further comments in writing.
-------------------------------------
PHASE 2 REVIEWS OF BELGIUM AND SWEDEN
-------------------------------------
¶8. Belgium: Lead examiners Switzerland and Argentina
gave Belgium a generally favorable review, although the
WGB strongly criticized Belgium for continuing to allow
tax deductions for "secret commissions" in
international business transactions and urged Belgium
to impose a ban on such tax deductibility within one
year. Chairman Mark Pieth firmly rejected a Belgian
official's attempt to justify such tax deductibility in
certain circumstances, stating that it was simply "not
acceptable" and that in allowing such deductions
Belgium was "endangering its entire message on
corruption." On a more positive note, there are
apparently four cases potentially involving foreign
bribery under preliminary inquiry or investigation in
Belgium. Belgium is also conducting a major review of
the existing law on criminal liability of legal
persons. Nonetheless, the examiners and several WGB
delegates concerns raised concerns about how Belgian
law defines foreign public officials. This prompted
the WGB to recommend that Belgium consider adopting an
autonomous definition instead of relying on the
interpretation of the foreign country's law in order to
bring its law into compliance with the OECD Antibribery
Convention.
¶9. In its recommendations to Belgium, the WGB said
Belgium also must work on publicizing the Convention,
both within the Government and to the private sector,
and advised Belgium to consider providing more
resources for prosecutions. In addition, the WGB
recommended that Belgium adopt improved whistleblower
protection measures, and that Belgium take the
necessary legislative measures to ensure that its
extraterritorial and universal jurisdiction for bribery
offenses committed outside of Belgium is adequate. The
WGB committed to following up on several issues in the
future, including whether the definition of bribery
under the Belgian law encompasses "giving" an advantage
and whether adequate resources are allocated for
effective prosecutions of complex international bribery
cases.
¶10. Sweden: The WGB praised Sweden for its
implementation of the Convention, being one of the few
countries, other than the U.S., that has actually
obtained a conviction for bribery of a foreign public
official. The case, involving kickbacks to World Bank
officials, was actually prosecuted under Sweden's pre-
Convention anti-bribery law and is currently under
appeal. Apparently Swedish law prohibited bribery of
foreign public officials, although not expressly,
before the Convention entered into force for Sweden.
Other cases are currently under investigation. The WGB
also commended Sweden for having adequate resources for
prosecuting foreign bribery cases and a well-
functioning system of cooperation and information
sharing between law enforcement officials. Poland did
an admirable job of as the apparent lead examiner;
Iceland was the other examiner.
¶11. While praising Sweden's efforts, the WGB made a
number of recommendations for further improvements,
including further raising awareness in both the public
and private sectors about the offense of bribery of
foreign public officials; requiring auditors to report
indications of possible illegal bribery acts to the
board of directors and considering requiring such
reporting to relevant law enforcement authorities;
ensuring that the notion
of a foreign public official under Swedish law includes
all elected officials and agents of public
international organizations, even those of which Sweden
is not a member; completing the reform of the system of
liability of legal persons so that there are no
obstacles to imposing corporate fines and the maximum
fines for bribery are appropriate (i.e., effective,
proportionate and dissuasive) given the global
importance of Swedish companies; and, ensuring that law
enforcement and judicial authorities are aware of the
penalty of confiscation of the proceeds of bribery. The
WGB also committed to following up on several issues
once Sweden has brought more cases, including the
criteria for determining when bribery is aggravated or
simple, prosecutions of legal persons where a natural
person is not being prosecuted, and the application of
nationality jurisdiction.
¶12. The complete reports for both Sweden and Belgium
will be accessible on the OECD website within several
months, at www.oecd.org.
-------------------------------------------
PHASE 2 WRITTEN FOLLOW-UP REPORT BY GERMANY
-------------------------------------------
¶13. Germany presented its written follow-up report to
its Phase 2 Report. The original Phase 2 Report and
accompanying Recommendations may be found at:
http://www.oecd.org/dataoecd/52/9/2958732.pdf ; EB/OIA
emailed the follow-up report to Embassy/Econ. Although
Germany is revising its current laws and has made
several improvements, the WGB noted several remaining
concerns that it will need to monitor as the case law
develops, including Germany's application of its
antibribery laws to corporate entities (Germany does
not provide for corporate criminal liability but only
administrative fines under its legal system). The
German follow-up report states that Germany is
currently revising its antibribery legal framework
under a new Draft Act on Combating Bribery, which will
incorporate Council of Europe as well as new EU
requirements and obligations of the UN Convention. The
Draft Act will repeal Germany's current legislation
implementing the OECD Convention and transfer such
offenses to the Criminal Code. According to the German
report, the legislative procedure is expected to be
complete by end 2006.
¶14. The report elaborates on steps the Government and
(separately) several business associations have taken
to raise awareness about the Convention and the German
implementing legislation among both the business
community and judges and prosecutors. In addition,
Germany reportedly sent information to missions abroad,
including written training programs to increase
awareness of bribery offenses.
¶15. German enforcement of the foreign bribery offense
has been complicated by the fact that in general
investigations and prosecutions are done by the Lander;
for example, Germany claims it can only report the
number of investigations and prosecutions once a year
because it only receives such information from the
Lander annually. The follow-up report notes that the
federal authorities have developed a Central Public
Prosecution Register, and the report provides a
detailed annex outlining a long list of cases. Germany
said the Justice Ministry has drafted amendments to the
guidelines on criminal and administrative proceedings
to provide more guidance to prosecutors in applying the
laws relating to the responsibility of legal persons.
The lead examiners, Austria and Japan, nonetheless
raised several remaining concerns, including whether
the Lander really had sufficient resources, the time
lag in conducting tax audits and the relatively low
penalties for legal persons of up to Euro 1 million,
given the size of German companies and exports in the
global market. (Note: USDel queried the German
representatives on the margins and confirmed that
German law also afforded the possibility of fining the
company up to twice the amount of the bribe proceeds,
although if the bribe was promised but not actually
paid this penalty obviously would not appear to apply.
End note)
¶16. USDel commended the GOG on the impressive number
of cases currently under investigation as well as for
establishing a central register, but asked whether the
German delegates to the WGB would be able to consult it
more regularly. The German delegate responded that
because the registry information is secret and the
Federal Government is not a prosecuting but a law
making body, it does not have access to the registry.
They reiterated that the Federal authorities receive
such information only once a year for the purpose of
reporting to the OECD WGB.
---------------------------------------
PHASE 2 ORAL FOLLOW-UP REPORT BY NORWAY
---------------------------------------
¶17. Norway provided a comprehensive Phase 2 oral
follow-up report and the lead examiners generally
expressed satisfaction with Norway's implementation and
enforcement of the convention. Norway is issuing a
booklet on the corruption provisions of the penal code,
which will be distributed to all foreign missions and
Norwegian small and medium enterprises operating in
foreign markets. Norway is considering a new act on
whistleblowers, which is at the drafting stage and is
being hotly debated (this is viewed as important by the
examiners pursuant to the Phase 2 recommendations).
The Norwegian delegate explained that Norway has
established a tax unit to investigate tax crimes and
related issues and has issued instructions to all tax
authorities on how to communicate bribery matters. One
of the WGB's recommendations in Norway's Phase 2 report
was that the authorities needed to communicate to its
business sector that facilitation payments are not
allowed under Norwegian law; the Norwegian delegate
expressed surprise at the existence of this
recommendation (as did USDel, since facilitation
payments are permitted under the U.S. Foreign Corrupt
Practices Act) but said that Norway will comply by
mentioning this in its new booklet (see above).
--------------
Tour de Table:
--------------
¶18. As agreed by the WGB at the March meeting, the
Tour de Table review of country implementation and
enforcement efforts focused on a summary matrix of
cases compiled from public sources by the OECD
Secretariat. Posts can request copies of the Tour de
SIPDIS
Table summary of foreign bribery cases derived from
press reports by contacting EB/IFD/OIA, email:
brownpa@state.gov. (Note: Not all of the information
in the matrix is accurate or authoritative, but it is a
useful tool to track allegations of bribery of foreign
public officials. End Note.)
¶19. Most countries gave only brief reports and many
asked that the listed cases from press reports be
removed as they were lacking evidence and therefore not
being pursued. Several countries reported either having
signed or ratified the United Nations Convention
Against Corruption, and most EU countries informed the
group about their implementation of COE and EU
anticorruption instruments. After going around the
table for updates, Chairman Mark Pieth suggested that
the WGB take a closer look at multi-jurisdictional
cases, such as the TSKJ / Nigeria case, which touches
quite a few OECD countries (although only the U.S.,
France, the U.K. and Switzerland are conducting
investigations), as well as the Alcatel / Costa Rica
case. He commented that perhaps multi-jurisdictional
cases would make a good topic for a special
"prosecutors' meeting" in addition to normal WGB
meetings.
¶20. USDel addressed several recent enforcement actions
pursuant to the Foreign Corrupt Practices Act (FCPA),
including the Diagnostic Products Corporation
(DPC)/(China) case. The case involved DPC and its
wholly owned subsidiary, DPC (Tianjin) Ltd., a Chinese
company, which sell medical devices and testing
equipment. DPC (Tianjin) Ltd. pleaded guilty to
violating the FCPA by paying $1.6 million in bribes
over a ten-year period to doctors and procurement
officials of state-owned hospitals in China. DPC
(Tianjin) Ltd. was sentenced to pay a $2 million
criminal fine, and parent company DPC will pay $2.8
million, of which approximately $2 million is
disgorgement representing the company's net profit in
China from its misconduct, under a previously agreed
cease and desist order from the U.S. Securities and
Exchange Commission. USDel also confirmed the existence
of numerous Department of Justice and SEC
investigations reported in the press and listed in the
Secretariat's matrix.
SIPDIS
¶21. USDel again reminded the representative from the
Netherlands that the U.S. is still seeking extradition
of a Dutch national for FCPA violations; while the
Dutch Supreme Court approved his extradition, the
Ministry of Justice appears to be blocking the
extradition. As usual, the Dutch representative had no
response other than that she would relay the message to
capital. USDel further reported that the Justice
Department had given presentations at various
anticorruption conferences, including one in Paris and
one on the FCPA in New York. The Justice Department has
also participated in several web casts on the topic for
continuing legal education purposes and five more are
scheduled. USDel also noted that the Justice
Department has completed a pilot program for compiling
international cases, which it hopes to have up and
running by this summer.
¶22. France provided a disappointing, minimalist
update, saying that three cases remain under
investigation; the French delegate said many of the
cases listed in the Secretariat-prepared matrix either
do not fall within the ambit of France's law
implementing the Convention or simply that France is
not aware of the case. USdel took issue with France's
lack of a response, specifically asking for more
details of French actions with respect to the Alcatel /
Costa Rica case. France stated that it is watching
developments concerning the case but had no news to
report beyond its last update on the subject.
Concerning the Thales Engineering and Consulting /
Cambodia case, which involves blacklisting of the
company by the World Bank: the U.S. pointed out that
France should at least ask the World Bank for further
information about the case, instead of doing nothing
and assuming that the World Bank sanctions are enough.
When asked about other cases by the Chair, France
responded that if other countries are already
investigating, there is no need for France to do
anything.
¶23. Similarly, the U.K. reported that the Serious
Fraud Office was either unaware of several of the cases
listed in the Secretariat's report or there was no
evidence to support them concerning UK involvement.
When asked by the U.S. for an update on the TSKJ /
Nigeria case the U.K. responded that it had no updated
information. The ongoing investigation into the BAE
case involves several countries. The U.K. further
reported that it is participating in various outreach
activities to several countries, including in events in
East Asia on awareness raising for the private sector
and for U.K. missions. It held a conference for its
Overseas Territories on the Convention, and a meeting
on a Memorandum of Understanding of how to handle cases
with the Serious Fraud Office.
¶24. Japan reported that it was seeking information on
the (TSKJ / Nigeria) case, but provided no further
information on it or any other cases. Japan further
reported that the Bill for raising penalties for
national persons is under consideration in the Diet and
it is hoped that it will be passed in a few weeks.
Korea, on the other hand, reported that it is
monitoring several cases (although most involve bribery
of U.S. military procurement personnel in Korea), has
requested mutual legal assistance in others, and has
prosecutions under way. Korea noted that it is hosting
two upcoming events this year: an APEC Anticorruption
Task Force Meeting and an Anticorruption and
Transparency Symposium in September.
¶25. Australia stated that there are two potential
foreign bribery matters under consideration and another
is being looked at, but all are confidential at this
point. Austria reported that on June 7 it adopted the
bill on criminal liability, which should enter into
force in January 2006. Brazil reported that the
National Congress and the Parliament had ratified the
United Nations Convention Against Corruption in May. It
is also considering three bills to implement WGB
recommendations, concerning international mutual legal
assistance, the duration of the statute of limitations
(which may be increased up to 12 years) and legal
liability. Turkey reported that it has a new Criminal
Code, which entered into force on June 1. The new text
now contains provisions on the coverage of
international officials. The Slovak Republic reported
that its on-site visit was conducted in May. It also
has new criminal and procedural codes, awaiting the
President's signature and expected to enter into force
in 2006; however a provision concerning legal persons
had been deleted. Italy reported that Transparency
International will be hosting a seminar in Rome in
November on the OECD Convention. Norway reported on a
recent a seminar for Nordic prosecutors in corruption
cases in a Nordic context.
¶26. Countries absent from the Tour de Table at this
meeting included: Bulgaria, Ireland, and Luxembourg,
which claimed it was too busy due to its EU Presidency
and could not present its mandatory follow-up report to
its Phase 2 Review. As a result, the Chair suggested,
per prior agreement by the WGB Management Group, that
the WGB write a letter to Luxembourg expressing its
disappointment and concern.
--------
OUTREACH
--------
¶27. There was an animated discussion of a Secretariat
paper on a possible strategy regarding outreach to non-
members. The paper took an expansive approach,
covering outreach to possible candidates for accession
to the OECD Antibribery Convention as well as those who
are not on an accession path but may be interested in
the Convention, and also addressing the OECD Anti-
corruption Division's various regional initiatives.
The UK commented that any outreach needs to be
carefully targeted, first on accession candidates. For
those countries that are not accession candidates,
outreach might best be done on a regional basis.
Australia and Argentina endorsed the UK views, noting
resource constraints.
¶28. France said an important consideration is the size
of the WGB -- effective monitoring and follow-up could
be difficult if the WGB were to grow too large and
there probably is a size limit for the group. France
added that, within that limit, the WGB could identify
what countries might be accession candidates, with
outreach focused on those countries, although the Group
should consider ways to engage other countries with no
real prospect for accession. Finally, France stressed
the need for a level-playing field for business from
Parties to the OECD Antibribery Convention; the WGB
needs to look at what to do with major players that are
not Parties to the Convention, given increasing
competition from businesses from non-Parties, and this
need should also drive the outreach approach.
¶29. USDel noted that the U.S. shares many of the views
expressed by the UK and France. USDel stressed that
outreach should be based largely on those countries
that are likely to meet the criteria endorsed by the
OECD Council in 2004 (i.e., "willing and able" and
"mutual benefit"). Summing up, Chairman Pieth said
there is a clear need to really target the outreach,
with the starting point being the criteria in the
Council decision. He suggested the Secretariat try to
develop a list of target countries, for initial review
by the management group. USDel reminded delegates that
the WGB had tried in the past to develop a list of
priority outreach candidates, without arriving at any
consensus. While the Group could proceed down this
road, we could see any list as being quite short and
focused. Turkey subsequently objected to any
preliminary review by the management group, saying any
list should be reviewed by all members at the same
time. (Comment: While a "list developing" exercise is
problematic, USDel believes it can be managed. End
comment.)
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COMMENTS ON RUSSIA'S DRAFT LAW AGAINST FOREIGN BRIBERY
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¶30. The WGB considered draft comments on Russia's
proposed law criminalizing the bribery of foreign
public officials, drawn from written comments by
several delegations and discussion at the informal side
session with Russian experts at the October 2004 WGB
meeting. While the draft represented an improvement
over the previous version circulated in March, it still
contained a number of shortcomings and incorrect
interpretations of the Convention that reflect poorly
on the Secretariat, including loosely referring to
corruption in general rather than focusing specifically
on the bribery of foreign public officials. USDel
indicated that we were not yet in a position to approve
the draft, but would forward specific comments and
edits shortly. The WGB discussed how to further engage
Russia, given that there have been no follow-up
contacts by Russian officials since Russia attended the
WGB Phase 2 examination of the UK in December 2004.
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SOUTH AFRICA
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¶31. The Secretariat explained that the OECD Council
had approved inviting South Africa to become part of
the WGB; a draft letter inviting South Africa had been
sent to the South Africans for comment. While South
African officials had said they would have comments,
they have yet to be received. WGB Chair Pieth
expressed frustration with the slow pace of
developments and urged the Secretariat to follow up
with South Africa representatives in Paris.
MORELLA