The key anti-bribery legislation is included in the Dutch Criminal Code ("DCC", articles 177-178, 328ter and 363-364). The DCC covers domestic bribery as well as foreign bribery and covers bribery of government officials as well as the bribery of private individuals.

No, the above legislation dates from longer than ten years ago, although, the Dutch Expanded Measures Against Financial and Economic Offences Act (Wet verruiming mogelijkheden bestrijding financieel-economische criminaliteit) was passed on January 1, 2015. This law updates the criminalization of corruption with regard to officials and private parties and provides for higher maximum penalties.

Yes. Essentially, active bribery of a government official (art. 177 DCC) is committed if:

1. a gift, a promise or a service;
2. is provided/offered to or accepted/requested by;
3. a Dutch or foreign public official;
4. aiming to motivate the public official to perform an action or omission.

Dutch criminal law does not require that a public official provides a specific and identifiable service in exchange for a (prospected) gift or service. If a gift or service merely aims to promote a commercially beneficial relationship between a company and a public official, but the official does not (ultimately) provide a specific service in return for the payment, this generally still qualifies as bribery.

Yes, art, 177a DCC provides that public officials include individuals "in the public service of a foreign state or an organization governed by international law".

Yes. Although criminal enforcement tends to focus on cases where an actual bribe is received by the official, merely requesting or offering a bribe is equally punishable by the bribery provisions. The same applies to the bribery of private individuals.

Every individual in the scope of Dutch criminal jurisdiction is subject to the legislation. This also applies to domestic and foreign corporations, which can be prosecuted if the requirements for corporate liability are met.

Yes, this is determined based on general guidelines for corporate liability developed in case law. The most relevant factors for bribery are:

1. The bribe was provided by an individual working for the corporation:
2. The corporation benefited from the bribe (e.g. it generated business);
3. The corporation accepted/allowed the bribe, which can include failure to take sufficient compliance measures.

Although corporations can technically be liable for accepting a bribe (passive bribery), enforcement of passive bribery tends to focus on the government officials and private individuals who accepted the bribe rather than corporations.

For active and passive bribery of a government official, the maximum prison sentence is six years (nine years in some cases of bribery of a judge). For active and passive bribery of a private individual, the maximum sentence is four years. Penalties that may be imposed in addition to or instead of a prison sentence include a criminal fine of up to EUR 87,000 per violation, community service of up to 240 hours and disgorgement of criminal profits.

The above are maximum sentences that are rarely applied in practice. Criminal courts tend to apply much lower sentences in practice, although settlement amounts in high-profile bribery cases have risen substantially in the past decade. The Prosecution Service or judiciary has not published formal sentencing guidelines and has a large margin of appreciation to assess individual cases.

The maximum criminal fine is 10% of the corporation's annual turnover per violation. Due to the lack of sentencing guidelines, the fines and settlement amounts applied in practice differ greatly.

Having a compliance program does not constitute a statutory defense which may trigger immunity from criminal enforcement. However, having a compliance program can be a relevant factor in connection with the general guidelines for assessing the criminal liability of the corporation (see the response to "Is there criminal liability for corporate entities who have either paid or accepted a bribe payment?"). Particularly, if the corporation has an adequate compliance program including anti-bribery rules, this may be a key factor in arguing that the corporation did not accept bribery and therefore should not be held liable for a specific case of bribery committed by an employee/associate.

Yes, corporate entities can enter into out-of-court settlements (transactie) or penalty orders (strafbeschikking). An out-of-court settlement is essentially an agreement with the Prosecution Service to pay a settlement amount to avoid prosecution but does not constitute legal admission/establishment of the offense. Penalty orders require payment of a fine and do constitute the establishment of the offense. Out-of-court settlements and penalty orders may also include other conditions, but appointing a monitor to oversee future conduct within the corporation is not common (yet).