How does the FCPA apply to the Vatican?

The Vatican, regardless of any individual religious viewpoint one holds, is a fascinating place. But it may be fascinating to companies for a special reason: Spreading powerful foreign officials across the globe.

Here’s the overview, in (very, very) brief form.

The Holy See is the jurisdiction of the Pope in his role as the bishop of Rome and sovereign of Vatican City. It is sometimes simply referred to as the Vatican government.

The Holy See sends out diplomats worldwide to represent its political and religious interests. For example, the apostolic nuncio (ambassador) at the apostolic nunciature (Embassy) to the United States is Archbishop Christophe Pierre.

Archbishop Pierre attended the Pontifical Ecclesiastical Academy (PEA) in Rome, the Vatican school for diplomacy. The PEA trains Catholic priests in ecclesiastical and international diplomacy who may later be selected to serve in diplomatic posts of the Holy See.

A nuncio performs the same functions as an ambassador and has the same diplomatic privileges. Under the 1961 Vienna Convention on Diplomatic Relations, to which the Holy See is a party, a nuncio is considered an ambassador like those from any other country.

The definition of a foreign official under the FCPA is famously broad. The FCPA Resource Guide says this about foreign officials:

The FCPA defines “foreign official” to include: 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.

According to this definition, it would appear that a Catholic apostolic nuncio is a foreign official of the Vatican.

Therefore, giving or promising to give anything of value to a nuncio directly or indirectly for the purpose of obtaining or retaining business or gaining an unfair advantage could violate the FCPA. A bribe to a nuncio to win a contract to renovate the nuncio’s official residence or other property owned by the Holy See, for example, could be covered.

There hasn’t been an FCPA prosecution involving bribes to a nuncio, and I hope there won’t be. But it seems within the realm of legal possibilities. Whether it is within the realm of practical possibilities — whether anyone at the DOJ or SEC would want to prosecute any company or individual for their dealings with a nuncio — is a different question.

No doubt such a prosecution would ignite a firestorm of questions and controversies about church and state functions. And the defendants, commentators, and social media users would raise the alarm about anti-church bias, among other things.

Beyond the analysis of nuncios as foreign officials, what about other Catholic cardinals, bishops, priests, and even some lay employees? Are they perhaps foreign officials of the Vatican (as a sovereign state) for purposes of the FCPA when they make or influence administrative decisions about how Vatican, diocesan, or parish resources are allocated?

But again, there’s never been an FCPA case based on facts similar to those, and it’s very hard (but not impossible!) to imagine it ever happening.

I was raised and am currently active in the Anglican church. Christian belief and tradition are an essential part of my life, as they are for billions around the world. This post is a result of two interests of mine: The FCPA and church history.

Of course, I’m not suggesting any FCPA-related impropriety within the Catholic church or the Vatican. But I think the theoretical intersection of the FCPA with ancient practices of the Vatican in its dual role as spiritual authority and sovereign state presents an interesting quirk of the modern world.