The key anti-bribery legislation in Argentina is the Criminal Code and Law 27,401. The latter was enacted at the end of 2017 and entered into effect in March 2018; however, there is still no case law against legal entities for breaches of Law 27,401.

While the Argentine Criminal Code sets forth penalties for individuals who engage in bribery-related crimes, Law 27,401 penalizes legal entities that engage in certain bribery-related conducts.

Please note that for purposes of this questionnaire, we are treating anti-bribery and anti-corruption as synonyms. However, “corruption” is a broad term, which under the Argentine law may be interpreted as relating to bribery, money laundering, fraud, conflict of interest, crimes against the public administration, and several other illegal activities.
 

As discussed in our previous response above to "What is the key anti-bribery and corruption legislation in your jurisdiction?", Law 27,401 was enacted at the end of 2017 to set forth corporate bribery-related penalties as well as to regulate anti-corruption compliance programs. 

Additionally, in 2020, the Province of Mendoza enacted its own anti-bribery Law 9,237 and required anti-corruption corporate compliance programs for entering into certain contracts with the province, the municipalities and governmental entities within such province. Presidential Decree 62/2019 came into force in January 2019 and regulates the civil action to recover assets obtained through bribery and corruption-related crimes, without the need of a conviction sentence. A similar regulation, Law 9,151, came into force in Mendoza in April 2019 and the first non-conviction based asset forfeiture was ruled in such province in early 2021.

In addition, Law 27,304, was enacted in November 2016. It provides reductions in penalties to defendants of anti-bribery cases that cooperate with the courts. The cooperation must include reliable, accurate, and useful information that helps identify (i) other individuals involved, who would be subject to penalties equal or greater than those applicable to the cooperators (ii) assets that are the product of the crime, and (iii) other information relevant to the case. This cooperation mechanism was highly used by the defendants of the Notebooks Case –the major Argentine anti-corruption investigation– and was useful to speed up the pace of the said criminal investigation.
 

Yes, bribing domestic government officials is prohibited by Argentine legislation. Both individuals and legal entities are subject to penalties in case of breach of the legal prohibition. Penalties may include fines, imprisonment, forfeiture and debarment to perform public office, among others.

Yes. The law prohibits bribing foreign government officials as well as officers of international public organizations. In case of violations of applicable law, both individuals and legal entities are subject to penalties as described in our response to "Is a bribe payment to domestic government officials prohibited by the legislation?".

Yes. Argentine legislation prohibits public officials from requesting or accepting a bribe.

Bribery between private parties is not specifically prohibited in Argentina, except for certain cases of private bribery within the financial as well as the sports industry. In the financial industry, both individuals and legal entities may be subject to criminal liability while in the sports industry only individuals are penalized.
 

Both individuals and legal entities are subject to the anti-bribery laws mentioned above.

Law 27,401 amended the Criminal Code making it applicable to (a) crimes committed or which effects shall be produced in Argentine territory, or in places subject to Argentine jurisdiction, (b) crimes committed abroad by agents or employees of Argentine authorities while performing as such, and (c) bribery of foreign public officials or of officials of public international organizations taking place abroad, by Argentine citizens or legal entities with domicile in Argentina – either the domicile set forth in its by-laws or the domicile of its offices or branches.
 

Law 27,401 establishes criminal liability for legal entities that offer, promise or provide bribes to domestic or foreign public officials or officials of public international organizations.

This law also penalizes legal entities for engaging in other bribery-related crimes. As such:

• local or international influence peddling;
• negotiations that are incompatible with public office;
• illegal or undue payments made to one or more public officials under the appearance of taxes, fees, contributions or similar, made or offer upon undue request of any public official (“concusión”);
• illegal enrichment of public officials and employees; and 
• producing aggravated false balance sheets and reports to cover up local or international bribery or influence peddling.

Individuals who engage in bribery are subject to imprisonment of up to six years. With regard to the public officials involved, they are punishable by imprisonment of up to 12 years and debarment to perform public office. 

In any case, individuals may be penalized with fines that amount between two to five times the amount or value of the money, illegal gift (“dádiva”), “undue” benefit or pecuniary advantage offered or granted.

In addition, individuals may be penalized with forfeiture of the assets used to commit the crime or that are the profit of the crime (either with or without a conviction).

Legal entities that engage in bribery are sanctioned as follows:

• fines ranging between two to five times the “undue” benefit that was obtained or that could have been obtained as a result of the crime; 
• partial or full suspension of activities for up to ten years; 
• forfeiture of the assets obtained through the illegal act or the assets that were used to commit the crime; 
• suspension or termination of government benefits previously obtained by the legal entities;
• debarment from participating in government bids and contracts or in “any other activity related to the government” for up to ten years;
• dissolution and liquidation of the legal entity when its main or only purpose was to engage in the illegal activity; and
• publication of an extract of the conviction ruling.

If convicted, legal entities shall be included in the register of corporate corruption criminal records, which was set up in November 2018.

Additionally, since January 2019, legal entities are exposed to the application of the new civil procedural regime that may rule non-conviction-based asset forfeiture.

It must be noted that bribery schemes often involve breaches of regulations besides bribery such as tax, customs, money laundering, fraud and others. In those cases, penalties (criminal, civil or administrative) under such regimes should also be considered.

Law 27,401 requires legal entities engaged in certain contracts with the Federal Government (i.e., contracts that must be approved by ministers or higher public officials because of the amount involved, such as contracts of public works or public services, among others) to implement anti-corruption compliance programs. However, implementing such compliance programs is voluntary for entities that do not engage in such contracts.

The law sets forth that the compliance program must be appropriate to the risks, size, and economic capacity of the entity. It must include, at least, the following elements (i) a Code of Ethics; (ii) internal policies to prevent crimes in interactions with the public sector; and (iii) periodic training. Considering the entity’s risks, the compliance program shall also include other elements such as appointing a compliance officer, having reporting channels or establishing due diligence procedures for third-party contractors, etc.

Having a compliance program as per the terms of Law 27,401 may allow companies to obtain a reduction of the penalties provided in the law. Specifically, legal entities may be exempted from penalties and administrative responsibility when they (i) voluntarily self-report a crime set forth by Law 27,401 as a result of an internal investigation; (ii) return the undue benefit obtained; and (iii) had implemented an appropriate compliance program before the facts under investigation occurred and the breach of such program required an effort by the wrongdoers.

The Argentine Anti-corruption Office was entrusted with the issuance of further regulation on compliance programs. Thus, in October 2018, the Anti-corruption Office published the guidelines on corporate compliance programs. In addition, in November 2019, the Anti-corruption Office enacted new guidelines addressed to small and medium-sized enterprises, which represent an important portion of Argentine businesses and, in general, count with fewer economic resources.

In addition, in 2021 the Argentine Anti-Corruption Office launched the Integrity and Transparency Registry for companies to disclose information on their compliance programs and help each other to enhance their programs as a consequence of the exchange of good practices. This Registry is in the process of implementation and has the support of the Inter-American Development Bank.

Legal entities seeking a reduction in penalties may enter into an effective cooperation agreement with the Public Prosecutor’s Office. Reaching such agreements requires the legal entity to provide accurate, verifiable, and useful information to investigate the facts, identify the individuals that committed or participated in the crime and to recover assets.

The effective cooperation agreement is subject to the following conditions (i) the legal entity shall pay a fine equivalent to one time the undue benefit that was obtained or that could have been obtained as a result of the crime; (ii) the entity shall disgorge assets or gains obtained through the illegal act; and (iii) the entity shall abandon, in favor of the state, those goods that presumably would be forfeited in case of conviction. Other conditions, such as implementing or adjusting the existing compliance program, shall also be established as a condition of the agreement.

In any case, conducting a proper internal investigation is often key for the legal entities to make informed decisions protecting their business, assets and reputation, looking towards the future of the company. These kinds of investigations are becoming more common in the local market, especially for international companies.