Draft bill on financial-economic crime

8 June 2012

Contacts

Introduction

On 15 May 2012, a draft bill reforming certain provisions of the Dutch Penal Code, Code of Criminal Procedure and Law on Economic Crime was submitted to several Dutch organisations (among which the Public Prosecutor's Department and the Council for the Judiciary) for advice. The objective of the draft bill is to extend the possibilities for the investigation and prosecution as well as the prevention of financial-economic crimes. Below, the most important aspects of the draft bill will be discussed.

Important aspects of the draft bill

Money laundering

The Dutch Public Prosecutor’s Department indicated that it deems an increase of the maximum penalty for money laundering offences desirable, in order to be able to effectively fight this form of crime. The laundering of proceeds of severe criminal offences, such as drug trafficking and trafficking in persons, must be considered as being as serious as committing the crime itself. The penalty attached to money laundering should reflect this view. Therefore, it is proposed to increase the maximum penalty for (i) negligent money laundering to two years of imprisonment, (ii) money laundering with criminal intent to six years of detention and (iii) habitual money laundering to eight years of imprisonment.

Penalties for legal entities

Currently, the highest possible monetary penalty for criminal offences under Dutch law amounts to EUR 780,000. This is not a very effective and dissuasive amount for financially strong companies. The minister of security and justice is of the opinion that the degree of severity of the offence, the amount gained from the criminal activities and the financial capacity of the offender should be taken into account. Therefore, it is proposed to increase the monetary penalty for criminal offences to a maximum of 10 per cent of the yearly turnover of a company.

Corruption

Further, the criminalisation of corruption, of officials as well as persons working in the private sector, will be adjusted. With regard to corruption of officials, it is proposed to criminalise active and passive bribery of an official, irrespective of the question whether an official duty is breached or not. Until now, it was distinguished between bribery resulting in a breach of an official duty and bribery not resulting in a breach of an official duty. The draft bill provides for a maximum of six years detention and a monetary penalty of the fifth category (currently an amount of EUR 76,000).

In case of bribery in the private sector, acting in breach of a duty by an employee or representative will be the central issue. The proposed third paragraph of article 328ter of the Penal Code clarifies that acting in breach of a duty in any case includes the, contrary to good faith, concealing of a gift, promise or service, to which the scope of the article is currently limited. It is proposed to increase the maximum penalty from two to four years of imprisonment and a monetary penalty of the fifth category.

Misuse of public funds

Furthermore, it is proposed to amend article 323a of the Penal Code. This article criminalises the misuse of grants awarded by the European Union. It is suggested to increase the scope of the article from the misuse of grants awarded by the European Union to the misuse of all sorts of public funds.

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Further information

If you have any further queries or remarks regarding this briefing, please do not hesitate to contact:

Yke Lennartz
Telephone number: +31 (0) 20 46 29 470
Mobile telephone number: +31 (0)6 5160 0862
E-mail address: yke.lennartz@nortonrose.com

Annette van Beers
Telephone number: +31 (0) 20 46 29 419
Mobile telephone number: +31 (0)6 2712 9557
E-mail address: annette.vanbeers@nortonrose.com

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