Reed Smith Client Alerts

There has always been clear and significant scrutiny of the business relationships between the private sector and public officials and, in particular, any transactions taking place between the two. Some of the largest fines and most extensive anticorruption investigations have involved allegations relating to public officials. Although the risk is obvious, the laws relating to this issue are not. The way that a public official is defined in relation to many anticorruption laws is unclear and has been an area of concern for businesses for a long time. In this alert, our lawyers seek to shed light on the definition of a public official in relation to the Foreign Corrupt Practices Act (FCPA), UK Bribery Act, and French, German and Greek criminal codes.

This is the fourth alert in the From the FCPA to the UK Bribery Act – Your key questions about global anticorruption laws answered series. Over the next few weeks, members of our global regulatory & investigations team will answer your most important questions about anticorruption laws in the U.S., UK, France, Germany and Greece. Next up, we will explore what the FCPA, UK Bribery Act and French, German and Greek criminal codes mean for your dealings abroad.

Don’t miss our previous alert which covered the extent to which companies are liable for the acts of their subsidiaries and employees under the FCPA, UK Bribery Act, French and German criminal codes and our additional thought leadership on anticorruption.

How do you define a public official under the FCPA?

  • The FCPA prohibits corrupt payments to “any foreign official,” “any foreign political party or official thereof,” and “any candidate for foreign political office.”
  • The FCPA also prohibits payments to any other person while knowing that all or a portion of the payment will be offered, given or promised to anyone within these prohibited categories (15 USC 78dd-1-3).
  • The FCPA defines the term “foreign official” as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization” (15 USC 78dd-1(f)(1)).
  • Consistent with the purposes of the FCPA, the Department of Justice interprets this definition very broadly to prevent foreign bribery and corruption. Accordingly, the definition includes both low- and high-level foreign officials regardless of rank or position, as well as intermediaries acting on their behalf.

How do you define a public official under the UK Bribery Act?

  • A foreign public official is defined in the UK Bribery Act, under section 6(5), as: 
    • “an individual who —
      • — holds a legislative, administrative or judicial position of any kind, whether appointed or elected, of a country or territory outside the United Kingdom (or any subdivision of such a country or territory) (or any subdivision),
      • — exercises a public function—
      • for or on behalf of a country or territory outside the United Kingdom (or any subdivision of such a country or territory), or
      • for any public agency or public enterprise of that country or territory (or subdivision),
      • is an official or agent of a public international organisation.”
  • The section 6 offense requires an intention to influence a foreign public official in their official capacity in order to obtain or retain business or an advantage in business.
  • The general section 1 offense, however, can also apply to attempts to induce improper performance by a foreign public official (not limited to conduct in their official capacity or related to the obtaining or retaining of business).
  • Examples of foreign public officials include:
    • Government ministers and civil servants;
    • Local government members and officials;
    • The police and other security agencies, such as immigration and border control; and
    • The armed forces.
  • In September 2021, UK Finance published a report setting out practical and risk-based guidance on the meaning of “public officials” for the purposes of anti-bribery and corruption (ABC) compliance. Considering the practical and risk-based guidance that report provides, and the wide definition of “public officials” in the Bribery Act, it is recommended that companies review the guidance to ensure ABC compliance.