The lone exception written into the FCPA allows bribes for “routine governmental action . . . which is ordinarily and commonly performed by a foreign official.” That sounds simple, but it’s not.
The burden of proof is always on the one asserting the exception as a defense. And very often, bribes first identified as permitted grease payments don’t fall within the exception after all. As the DOJ and SEC warn, “Labeling a bribe as a ‘facilitating payment’ in a company’s books and records does not make it one.”
Then there’s the OECD Anti-bribery Convention which discourages facilitating payments, and the UK Bribery Act which prohibits facilitating payments outright.
What to do?
In our benchmarking posts, the FCPA Blog tracks how well-known companies handle facilitating payments under their anti-bribery compliance programs. Not surprisingly, most now prohibit facilitating payments. A few might approve some facilitating payments, and one company doesn’t mention them at all.
Here’s what those industry leaders say (entirely in their own words):
No Facilitating Payments
Ferrari: Ferrari Group explicitly prohibits Facilitation Payments or “grease payments” – i.e. illegal or unofficial payment made in return for services that the payer is legally entitled to receive without making such payment.
Kraft Heinz: The laws of most countries, including the UK, do not permit making facilitation payments. Accordingly, the Company strictly prohibits Facilitation Payments.
Burberry: Bribery, corruption and facilitation payments are unethical, illegal and against Burberry’s Policy. Companies and individuals can be prosecuted by regulators in the UK for engaging in these activities.
The Walt Disney Company: Facilitation payments are prohibited under this policy except in case of duress.
Unilever: Employees must not directly or indirectly (e.g. via suppliers, agents, distributors, consultants, lawyers, intermediaries or anyone else): Offer or give bribes or improper advantages (including facilitation payments) to any public official or other individual or third party, which are, or give the impression that they are, intended to influence decisions by any person about Unilever.
Carlsberg Group: The Carlsberg Group does not allow the use of facilitating payments. Such payments may be considered a customary way of doing business in some countries, but it is important to understand that the anti-bribery laws of many countries prohibit such payments. Employees and third parties, in particular third-party intermediaries, are prohibited from making facilitating payments on the Group’s behalf.
Pfizer: Under Pfizer policy, a facilitation payment means a nominal, unofficial payment to a Government Official for the purpose of securing or expediting the performance of a routine, non- discretionary governmental action. Such payments are illegal in most countries and Pfizer is committed to eliminating such payments from its business. Pfizer prohibits any Pfizer employee or Business Associate from offering or authorizing the offer of a facilitation payment (directly or indirectly).
3M: Facilitation payments are bribes and are prohibited . . . A facilitation payment or “grease payment” is a small sum of money paid to a Government Official in order to expedite routine and nondiscretionary activities, such as obtaining a visa or work order, installing telephone service, or initiating electrical service. 3M prohibits facilitation payments, which can violate the UKBA and other countries’ anti-bribery laws.
General Motors: A facilitating payment is a payment of small value made to low level government employees to obtain a non-discretionary, routine governmental action to which GM is legally entitled. While permitted under U.S. law in narrow, strictly defined circumstances, even very small facilitating payments may violate the U.K. Bribery Act and local statutes. Accordingly, this Policy strictly prohibits all facilitating payments.
Volkswagen: Facilitation payments (also called bribes) are relatively small amounts paid to officials in order to accelerate routine official procedures to which citizens are legally entitled. Bribes are a criminal offense in any countries and are therefore prohibited. The Volkswagen Group expressly prohibits facilitation payments.
Microsoft: Do Not Make Facilitating Payments: A facilitating payment is a payment to secure or expedite a routine government action by an official. Do not make facilitating payments.
Novartis: Novartis prohibits facilitation payments, irrespective of whether local law permits facilitation payments.
Apple: Facilitating payments are a type of bribe generally used to facilitate or expedite the performance of routine, non-discretionary government action. These types of payments are typically demanded by low-level officials in exchange for providing a service that is ordinarily and commonly performed by the official. These payments are not permissible and are strictly prohibited by Apple.
ExxonMobil: The Company prohibits facilitating payments except in rare circumstances. Any proposal to make a facilitating payment must be endorsed by the Law Department in advance, and the Law Department endorsement will only be provided in circumstances in which the payment would be legal under all applicable laws. Similarly, contractors are required to comply with all applicable laws and are not authorized to make facilitating payments while carrying out work for the Company where prohibited by applicable law.
Tesla: Facilitation payments are not permissible, except in certain limited circumstances. You must obtain express written approval from the General Counsel or the Legal Department prior to making facilitating payments of any kind.
Airbus SE: Consistent with most anti-corruption laws, Airbus prohibits facilitation payments. A narrow exception exists if a facilitation payment is made in the context of avoiding or preventing an imminent threat to the health, safety or welfare of an Airbus employee. In such cases, the employee should immediately inform a member of the Legal & Compliance team.
The Coca-Cola Company: The Company’s prohibition on bribery applies to all improper payments regardless of size or purpose, including “facilitating” (or expediting) payments. Facilitating payments refer to small payments to government officials to expedite or facilitate non-discretionary actions or services, such as obtaining an ordinary license or business permit, processing government papers such as visas, customs clearance, providing telephone, power or water service, or loading or unloading of cargo. Generally, facilitation payments are prohibited by this Policy, except for a very limited set of circumstances for which prior written approval must be obtained from both Company Legal Counsel and E&C.
No Mention of Facilitating Payments
This link takes you to an index of all the anti-corruption policies mentioned above.
Watch for more as we continue our benchmarking series.