Contributed by Tuca Zbarcea & Asociatii.
1. Legal Framework
1.1. What is the legal framework for bribery and corruption in your jurisdiction?
Corruption is a current and real social and legal phenomenon that threatens with all weapons the individual integrity of the public or private agent. As follows from the texts of the Council of Europe Criminal Law Convention on Corruption, a distinction is made between active and passive corruption. The first of these, according to Article 2 of the convention, involves the intentional commission of an act whereby a person directly or indirectly proposes, offers, or gives any undue advantage to a public official, for himself or for another person, with a view to performing or refraining from performing an act in the exercise of his functions. Article 3 of the convention defines passive corruption as the intentional commission of an act by a public official to solicit or receive, directly or indirectly, any undue advantage, for himself or for another person, or to accept an offer or promise with a view to performing or refraining from performing an act in the exercise of his functions.
At the heart of corruption offenses are public officials, civil servants, and private officials, who are defined by the law.
In Romanian criminal law, corruption is a concept that includes, in a strictly legal sense, corruption offenses [taking bribes, giving bribes, influence peddling, and buying influence, the legal framework of which is constituted by the provisions of Articles 289-292 of the Criminal Code], offenses assimilated to corruption [Articles 10-13 of Law no. 78/2000], offenses directly related to corruption offenses [Art. 17 of Law No. 78/2000] and offenses against the financial interests of the European Communities [Art. 18/1 - 18/5 of Law No. 78/2000].
Acts of corruption are provided for by the Criminal Code - Special Part (Title V - Crimes of corruption and occupational crimes, Chapter I – Crimes of corruption) and by Law No. 78/2000 for preventing, ascertaining, and punishing acts of corruption (Chapter III - Felonies).
The provisions of the Criminal Code on the felony of taking a bribe (Article 289) are meant to cover all the cases where a person, directly or indirectly, for oneself or for another person, claims or receives money or other undue benefits, or accepts the promise of such benefits, in relation to the fulfillment, non-fulfillment, expediting, or protracting the fulfillment of any act concerning his professional duties, or in relation to the fulfillment of any act which is contrary to such duties.
The felony of giving a bribe (Article 290) refers to promising, offering, or giving money or other benefits under the conditions described by the provisions on taking a bribe.
The felony of influence peddling (Article 291) consists in claiming, receiving, or accepting promises of money or other benefits, directly or indirectly, for oneself or for another person, committed by a person having influence, or pretending to have an influence on an official and who promises to determine such official to perform, not to perform or defer the performance of an act concerning his professional duties or to perform an act which is contrary to such duties.
Buying influence (Article 292) is the correlative felony for influence peddling. Such buying of influence is no longer punished only in the special cases provided by Anticorruption Law No. 78/2000 (the former Article 61, currently repealed). This covers a legislative gap that has often been highlighted by legal scholars.
For all the corruption offenses referred to in Articles 289 to 292 of the Criminal Code, a reduction of the limits of punishment by one third applies (as per Article 308) whenever the acts are committed by persons assimilated to civil servants, namely persons fulfilling, permanently or temporarily, with or without pay, a task of any kind on behalf of an individual who performs a service of public interest for which such individual was vested by the public authorities or who is subject to the public authorities’ control or supervision as regards the fulfillment of such public service or within any legal entity (private sector).
At the same time, Article 7 of Law No. 78/2000 stipulates that acts of giving a bribe or influence peddling committed by a person exercising a public dignity function, by a judge or a prosecutor, by a criminal investigative body or a person who has been authorized to take notice and sanction misdemeanors committed by one of the persons referred to in Article 293 of the Criminal Code, shall be sanctioned with the penalty provided for in Article 289 or Article 291 of the Criminal Code, the limits of which are increased by one third.
The Anti-corruption Law No. 78/2000 provides for a set of felonies that are also considered acts of corruption, such as: setting a smaller value for the assets owned by public authorities or institutions or undertakings in which the State or an authority of the local public administration is a shareholder, granting illegal subsidies, using subsidies for other purposes than the purpose for which they were granted and acts of corruption perpetrated by the persons in charge with the supervision of undertakings.
Other offenses assimilated to those of corruption are: (i) the act of a person who, having the task of overseeing, controlling, reorganizing, or liquidating a private economic operator, carries out any task, intermediates or facilitates the conduct of commercial or financial operations, or participates with capital in such an economic operator, if the act has the nature of directly or indirectly creating an undue advantage; (ii) performing financial transactions as acts of commerce, incompatible with the duties of a person, or the conclusion of financial transactions, using the information obtained by virtue of his or her duties, if the purpose is to obtain for himself or another money, goods or other undue benefits; or (iii) the use, in any way, directly or indirectly, of information not intended to be advertised, or of permitting unauthorized persons access to such information if the purpose is to obtain for himself or for another money, goods or other undue advantages.
The act of the person who performs a managerial role in a party, in a trade union or owners’ association, or legal person without patrimonial purpose (such as a foundation), to use his/her influence or authority for the purpose of obtaining for themselves or for another money, goods, or other undue benefits also constitutes a felony under Law No. 78/2000.
Special emphasis is put on the crimes of corruption against the financial interests of the European Union seeking to undeservedly obtain funds from the EU general budget. Thus, the Criminal Code provides that offering false or inaccurate information in view of unfairly obtaining funds from the EU budget and illegally changing the purpose of such funds constitute crimes of corruption.
1.2. Which international anti-corruption conventions apply?
In Romania the following international anti-corruption conventions apply:
1. The United Nations Convention against Corruption (New York, October 31, 2003) ratified by Law No. 365 from September 15, 2004;
2. The Criminal Law Convention on Corruption (Strasbourg, January 27, 1999) ratified by Law No. 27 from January 16, 2002;
3. The Civil Law Convention on Corruption (Strasbourg, November 4, 1999) ratified by Law No. 147 from April 1, 2002;
4. The Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (May 26, 1997), entered into force on September 28, 2005, through an EU Council decision by which Romania is accepted to adhere to the European Union.
1.3. What is the definition of bribery?
See Section 1.1. – definition for taking and giving a bribe, Articles 289 and 290 of the Romanian Criminal Code.
1.4. Is private sector bribery covered by law? If yes, what is the relevant legislation?
Romanian legislation also covers corruption offenses committed in the private sector. See Section 1.1. – application of Article 308 of the Romanian Criminal Code.
1.5. What is the definition of a public official and a foreign public official? Are employees at state-owned or state-controlled enterprises treated differently? Are there official lists of public officials, offices, or state-owned or state-controlled enterprises?
A public official is defined in Article 175 of the Romanian Criminal Code as a person who, on a permanent or temporary basis, with or without remuneration:
a) exercises the duties and responsibilities, set under the law, to implement the prerogatives of the legislative, executive, or judiciary branches;
b) exercises a function of public dignity or a public office irrespective of its nature;
c) exercises, alone or jointly with other persons, within a public utility company, or another economic operator or a legal entity owned by the state alone or whose majority shareholder the state is, responsibilities needed to carry out the activity of the entity; or
d) supplies a public-interest service, which they have been vested with by the public authorities or who shall be subject to the latter’s control or supervision with respect to carrying out such public service.
A definition for a foreign official can be found in Article 1(b) of the Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union.
Certain employees at state-owned or state-controlled enterprises who are in a management position are obliged to declare their assets according to Article 3(1) of Law No. 78/2000 and to declare the receiving of certain protocol gifts according to Article 1 of Law No. 251/2004.
Also, see Section 1.10.
1.6. Are there any regulations on political donations?
As a general rule, any goods, amounts of money, or other such pecuniary or non-pecuniary benefits constitute undue benefits which fall under criminal provisions for giving a bribe, taking a bribe, influence peddling, or buying of influence when the benefits are given for the purpose of determining a public official to unlawfully act or not act according to his or her public duties.
Article No. 4 of Law No. 78/2000 for the prevention, discovery, and sanction of acts of corruption also provides for the public official’s obligation to declare any direct or indirect donation or gifts received in connection to their public duties, barring those with a symbolic value, within 30 days of reception.
From an administrative law perspective, Article No. 440 of the Government Emergency Ordinance No. 57/2019 regarding the Administrative Code forbids public officials to directly or indirectly accept gifts or other benefits for executing their public duties. However, certain goods that are given for protocol services are exempt from this rule and are permitted within certain legal conditions.
Law No. 251/2004 provides for measures regarding goods freely given to public officials during protocol services. Article 1 para. (1) mandates that any official who receives a gift during their activity shall be declared within 30 days of reception to the head of the public institution they work in.
There are no pieces of legislation that require that the person or persons giving the gift keep a list of these items.
On the other hand, regarding the receiving of certain gifts by the public officials, according to Article No. 2 para. (1) of Law No. 251/2004, the head of the public institution which employs the official who received the gift shall constitute a three-member commission tasked with evaluating and organizing an inventory of the received gifts.
At the end of each calendar year, the public authorities shall publish on the institution’s web page or in the Romanian Official Gazette a list containing all goods given as gifts, as well as their intended purpose.
Even if criminal law does not specifically provide exceptions for goods that can be given to public officials, or goods that public officials can receive, after cross-referencing both criminal and administrative provisions we can surmise that it is possible to give gifts to public officials during protocol activities, gifts which they shall declare according to the applicable law.
Regarding the persons who offer gifts to public officials, Romanian law does not explicitly regulate the goods that can be offered or the conditions in which these gifts can be given. The only applicable provisions are those found in the Romanian Fiscal Code (Article No. 25) which require that protocol activity expenses are to be registered in the company’s logs for the purpose of tax deduction.
1.7. Are there any defenses available?
There are numerous defense arguments available. The most often invoked are:
1. the evidence usually consists of denunciations of persons who are not always credible, especially as Romanian legislation regulates a cause of non-punishment of persons who are guilty of active corruption if they denounce before the referral to the prosecution authorities, but this last moment can be chosen arbitrarily by the judicial bodies. The idea of flagrante delicto has been abandoned and this type of evidence is constantly used – forcing the person to make a denunciation in other cases;
2. the benefits obtained may be due, but the Romanian legislation does not condition, for example, the offense of influence peddling, on the undue nature or type of benefits;
3. abuse of office is an offense assimilated to corruption offenses, and the national regulation is very unclear, in the sense that any violation of the law, regardless of the seriousness of the violation, may lead to criminal charges against public officials, or even private officials, for that offense;
4. there is the practice of holding several offenses for the same material facts, i.e. both the offenses of bribery/trafficking in influence and the offenses of abuse of office if the bribery/trafficking in influence was followed by the improper performance of an act by the official, in violation of the ne bis in idem principle;
5. the differences between the incriminations contained in the successive criminal codes are frequently ignored, the tendency being to choose the more comprehensive incrimination, regardless of the date of the facts;
6. the more lenient provisions of the new Criminal Code on justifiable causes, such as error of law, are not used in the case of civil servants accused of abuse of office, or the fulfillment of an obligation laid down by law;
7. other defenses relating to the individualization of the penalty, lack of guilt, also valid for other offenses.
1.8. Is there an exemption for facilitation payments?
1.9. What are the criminal sanctions for bribery? Are there any civil and administrative sanctions related to bribery cases?
Giving a bribe (Article 290 of the Romanian Criminal Code) is punishable by imprisonment between two and seven years if committed in relation to a public official. The penalty is reduced by one-third if the bribe was given to a person working in the private sector. The person who gave the bribe is not sanctioned if they notify the criminal investigation bodies prior to them being notified of the act by any other means.
As an additional measure, the money given as a bribe is confiscated, if the person giving it was not forced to do so, or the judicial bodies were not notified prior to the commencement of the investigation.
There are additional sanctions that can be imposed during and for a period of one to five years after the execution of the prison sentence (complementary/ancillary sanctions), such as forbidding the exercise of certain rights, i.e. to vote or be elected, to occupy the public office held when the bribe was received, to hold a management position in a publicly owned company, etc.
All of these sanctions are criminal in nature.
1.10. Does the national bribery and corruption law apply beyond national boundaries?
The principle of the personality of criminal law (Article 9 of the Romanian Criminal Code) provides that Romanian criminal law applies to the felonies committed by Romanian citizens outside the country’s borders if the penalty provided by Romanian law is imprisonment for more than 10 years, or if the country in which the felony was committed also incriminates the acts committed.
As giving a bribe is largely incriminated by most countries’ legal systems, the principle is generally applicable in all cases when a Romanian citizen has given a bribe to a foreign national.
Furthermore, Article 294 of the Romanian Criminal Code incriminates acts committed by foreign officials or related to them, providing that the corruption felonies also apply to the following persons, unless the international agreements that Romania is a party to provide otherwise:
a) officials or persons who carry out their activity based on a labor agreement or other persons with similar duties in an international public organization that Romania is a party to;
b) members of parliamentary assemblies of international organizations that Romania is a party to;
c) officials or persons who carry out their activities based on a labor agreement or other persons with similar duties within the European Union;
d) persons who exercise judicial functions within the international courts whose jurisdiction is accepted by Romania, as well as officials working for the registrar’s office of such courts;
e) officials of a foreign state;
f) members of parliamentary or administrative assemblies of a foreign state;
g) jurors within foreign courts.
1.11. What are the limitation periods for bribery offenses?
The general statute of limitations period for bribery offenses are:
1. Taking a bribe: eight years for both public officials and the private sector. 10 years if the perpetrator is one of the categories of officials provided for by Article 7 of Law No. 78/2000;
2. Giving a bribe: eight years for public officials, five years for the private sector;
1.12. Are there any planned amendments or developments to the national bribery and corruption law?
There is a draft for modifying certain provisions of the Romanian Criminal Code and Law No. 78/2000 (PL-x No. 406/2018 currently pending before the Senate) with the following relevant content:
1. the benefit of not applying a punishment to the person who gives a bribe will only be applicable if said person notifies the judicial bodies within a year from the time of giving the bribe;
2. the felony of influence-peddling requires that the promise to determine a public official to act according to or against their job duties is actually followed through;
3. the same one-year time limit for notifying the judicial bodies by the person who has bought influence was instated for the benefit of being exempt from punishment;
4. if the corruption felonies have caused material damages to one or more persons and/or the state, the limits of the punishment provided for by law are halved if at least one participant (author, accomplice, instigator) covers said damages before the court gives its final judgment in the appeal stage.
2. Gifts and Hospitality
2.1. How are gifts and hospitality treated?
See Section 1.6.
2.2. Does the law give any specific guidance on gifts and hospitality in the public and private sectors?
See Section 1.6.
2.3. Are there limitations on the value of benefits (gifts and hospitality) and/or any other benefit) that may be given to a government/public official? If so, please describe those limitations and their bases?
Romanian legislation does not provide a limit for the value of goods or other benefits offered to public officials. The only applicable provisions establish the procedures for declaring and registering the received goods at the public institution which employs the official
Thus, according to Article No. 2 para. (3) of Law No. 251/2004, if the value of the gift exceeds EUR 200, the official receiving the gift can request that they keep it after paying the difference in value.
If the value of the gift exceeds EUR 200 and the public official does not request to keep it, the public institution which employs the official may choose to become the owner of the gift, auction it off, or send it to another public institution whose scope of activity fits the nature of the gift.
That being said, there is no upper limit for the value of gifts offered to public officials. This value can be reasonably determined. Any good which exceeds the notion of a symbolic gift, a polite gesture, or a gift given during protocol activities can be classified as an undue benefit, as provided for by criminal law.
2.4. Are there any defenses or exceptions to the limitations (e.g. reasonable promotional expenses)?
See Section 1.7.
3. Anti-corruption compliance
3.1. Are companies required to have anti-corruption compliance procedures in place?
3.2. Is there any official guidance on anti-corruption compliance?
There is a National Anticorruption Strategy for the 2021-2025 period approved by Government Decision No. 1269/2021. The provisions are only applicable to public authorities, institutions, or publicly run enterprises.
3.3. Does the law protect whistleblowers reporting bribery and corruption allegations?
The person who gives a bribe or buys influence is exempt from punishment if he/she notifies the judicial bodies regarding the felony prior to their notification by any other means. Afterward, if the whistleblowing is done during the criminal investigation stage, the whistleblower has their punishment limits halved.
4. Corporate criminal liability
4.1. Can corporate entities be held liable for bribery and corruption? If so, what is the nature and scope of such liability?
The Criminal Code (Articles 135 to 151) provides for the possibility of directly indicting the legal entity, which may be held liable for the actions of any of its bodies or representatives acting during its business, in its interest, and/or on its behalf.
The Criminal Code also requires that collective entities have a legal personality at the time of the crime in order to be liable under criminal law. In this view, the High Court of Cassation and Justice, Criminal Law Division, decided that an individual enterprise that is not a legal entity cannot be held liable under Article 135 of the Criminal Code (Decision No. 1/2016).
The State and public authorities do not fall within the category of persons that can be held liable under criminal law. However, public institutions are not generally exempt from criminal liability. The scope of the exemption from criminal liability of these subjects is solely in relation to actions performed during an activity pertaining to the public domain, which cannot be equally carried out by private law entities.
The criminal liability of the legal entity may be cumulated with the that of the individual who perpetrated the crime. However, these two types of liability are not wholly interdependent.
Criminal fines are the only main penalty that can be applied to legal entities, based on the fine-days system. The amount corresponding to one fine-day, varying between RON 100 and RON 5,000, is multiplied by the number of days subject to the fine (between 30 and 600 days) – the general limits of the penalty will range between RON 3,000 and RON 3 million.
The law provides for progressive penalties for legal persons depending on the severity of the prison sentence given to individuals. Thus, the special limits of the days subject to a fine range between:
- 60 and 180 days, when the law stipulates only a penalty by fine for that offense;
- 120 and 240 days, where the law provides for a term of imprisonment of no more than five years, as such or as an alternative to the fine;
- 180 and 300 days, where the law provides for a term of imprisonment of no more than 10 years;
- 240 and 420 days, where the law provides for a term of imprisonment of no more than 20 years; and
360 and 510 days, where the law provides for a term of imprisonment exceeding 20 years or life imprisonment.
It should be mentioned that when the offense committed by a legal entity was intended to create a monetary benefit, the special limits of the fine-days provided for by the law for the committed offense may be increased by one-third, without exceeding the general maximum of 600 fine-days. When determining the fine, the value of the monetary benefit obtained or sought shall be considered.
The Criminal Code also provides for a complementary penalty for the legal entity: judicial supervision (Article 144), where the convicted legal entity’s operations are to be carried out under the supervision of a judicial proxy for a period of one to three years.
The other complementary penalties applicable to the legal entity are dissolution, suspension of activity or of one of the activities of the legal entity for a period of three months to three years, closing of secondary offices for a period of three months to three years, prohibition to participate in public procurement procedures for a period of one to three years, publication of the conviction decision.
The general rule is that companies can be liable for any felony, including the corruption offenses provided for by law.
4.2. Can a company be liable for a bribery offense committed by an entity controlled or owned by it? Are there requirements for the parent to avoid liability in these situations?
Criminal liability is personal, therefore one company cannot be held responsible for the felonies committed by another enterprise, even one under its control if it did not participate in the illicit act as a co-author, instigator, or accomplice.
4.3. Can a company be liable for corrupt actions of a third-party agent engaged to help it obtain or retain business or a business advantage (such as government or regulatory actions or approvals)? If so, are there measures recognized in law, enforcement, or regulatory guidance to mitigate this liability?
Giving or taking a bribe are felonies that can be committed through intent, meaning that the perpetrator foresaw that their actions have the result of giving or taking said bribe for the provided benefits, and the result was pursued or accepted.
On the other hand, influence peddling or buying of influence can only be committed through direct intent, meaning that the result of the illicit acts must have been pursued.
The company can only be criminally liable for the corruption offenses committed by an external agent on its behalf if its governing bodies were aware that the agent was going to commit the felony and accepted this fact, or actively pursued it. In these situations, the conduct of the legal entity can be construed as complicity or instigation. Otherwise, if the company was directly involved in the bribing or peddling of influence, it will be liable as an author.
The provisions to mitigate the liability are the same as for the persons who notify the judicial bodies prior to the commencement of the investigation regarding the notified facts, or during the investigation, if participants in other corruption felonies are being denounced.
4.4. What are the sanctions for the corporate criminal entity?
See Section 4.1. for the general limits of the fine sanction.
Specifically, for corruption offenses, the special limits of the fine vary between RON 12,000 (approximately EUR 2,400) and RON 2.1 million (approximately EUR 425,000).
5. Criminal proceedings into bribery and corruption cases
5.1. What authorities can prosecute corruption crimes?
Corruption crimes are prosecuted by the National Anticorruption Directorate (DNA), which is a specialized independent branch of the Prosecutor’s Office by the High Court of Cassation and Justice. It has territorial bureaus which carry out the procedures in the investigation stage and refer the cases to court.
5.2. Is there a legal obligation to report bribery and corruption cases? If so, to whom does it apply and what are the sanctions for failing to meet such an obligation?
The obligation to report acts of corruption belongs solely to the public officials. Article 267 of the Romanian Criminal Code incriminates the act of the public official who, becoming aware of the commission of an act provided by the criminal law in connection with their professional duties, fails to immediately notify the criminal investigation bodies (imprisonment from three months to three years or a fine). When the deed is committed by negligence, the punishment shall be imprisonment from three months to one year or a fine.
Furthermore, Article 291 of the Criminal Procedure Code establishes an obligation for any person with a leadership position in a public authority to denounce any felony for which criminal investigations are initiated ex officio, such as corruption offenses.
Finally, the offenses provided by Art. 25 para. (4) and (5) of Law no. 78/2000 are the assimilated versions of the failure to report (Article 266 of the Criminal Code), which sanctions the non-fulfillment, in bad faith or by fault, of the obligations stipulated by Art. 23 and 24 of the same law. These texts require that (i) persons with control duties notify the criminal investigating authorities or, as the case may be, the law enforcement agency of any data indicating that an illicit operation or act has been committed and may entail criminal liability under this law, and (ii) persons referred to in Art. 1 lit. e) of Law no. 78/2000, which are aware of operations that involve the movement of capital or other activities related to amounts of money, goods, or other values alleged to derive from corruption offenses or assimilated to them or other related offenses, to notify the investigating bodies, or, as the case may be, the law enforcement bodies.
5.3. Is there any civil or administrative enforcement against corruption crimes?
5.4. What powers do the authorities have generally to gather information when investigating corruption crimes?
The criminal investigation bodies (prosecutor, police) and the courts have general access to all relevant public and private information that is relevant to solving the case regarding the corruption offenses. The banking and professional confidentiality guarantees do not apply to the relevant authorities in these situations, with the sole exception of the lawyer-client privilege.
5.5. Is there any form of leniency law in your jurisdiction, allowing a party to a bribery or corruption crime to voluntarily confess to the crime in exchange for a release from liability or reduction of the penalty?
See Sections 3.3. and 5.6.
If the perpetrator/s is/are sent to court, he/she/they can admit the facts within the indictment act and choose to carry out the procedure solely based on the evidence administered during the criminal investigation stage. If approved by the judge or panel of judges, the case is ruled upon in this abbreviated procedure, which results in the reduction of the imprisonment limits by one-third and the fine intervals by one-fourth.
5.6. Can a person plea bargain in corruption cases? If so, how is such a process conducted?
Article 478 and the following of the Romanian Criminal Procedure Code provide for the possibility of a plea bargain struck between the defendant/s and the prosecutor which can be initiated by either of these two parties. The plea bargain can be signed in writing with any or all of the defendants in the case and if both the signatories (defendant/s and prosecutor) agree. The defendant/s has/have to admit that they have committed the incriminated acts and the corresponding legal qualification established through the indictment act. The plea bargain establishes the type (fine, imprisonment, postponement/renouncing of the application of punishment) and amount of punishment, even the accessory/complementary sanctions provided for in the Criminal Code if so decided (e.g. banning the participation in public auctions). The signatory defendants are then sent to court, and, if the plea bargain is considered lawful and the type/amount of punishment (if any) is considered proportionate, the judge/s admit it and are bound to impose the sanctions that the prosecutor and defendant/s agreed upon. If a plea bargain is struck and accepted by the court, imprisonment is reduced limits by one third and the fine intervals by one fourth.