NETHERLANDS Trends and Developments Contributed by: Sebastiaan Bennink, Sally Eshun, Siqi Zhao and Daniel Webb, Bennink Dunin-Wasowicz
An additional 25% reduction may apply if they fully co- operate with an investigation. Conducting a thorough self-investigation may further support mitigating any punishments, although this will not lead to additional reductions beyond those described above. With respect to the requirements for qualifying for a fine reduction in connection with co-operation in criminal investigations, the Public Prosecution Ser - vice expects nothing less than full co-operation. This entails voluntary, complete and prompt co-opera - tion, demonstrated through a proactive attitude. The Guidelines provide a non-exhaustive list of require - ments, which include, for example: • timely submission of all relevant data – both domestic and foreign – to the Public Prosecution Service, without request; and • ensuring the availability of current and former employees for questioning, without unnecessarily informing them of the investigation. In addition to the criminal investigation by the authori - ties, a legal entity may, prior to, during or immediately after the self-reporting, conduct a self-investigation. The aspects that the Public Prosecution Service will consider include, among others, the contribution of the self-investigation to the overall criminal investiga - tion. This policy is not a formal “amnesty” regime, and Dutch legislation does not formally provide for a non- prosecution agreement; but in practice, the Dutch Public Prosecution Service may consider entering into settlements or deals (a so-called strafbeschikking ) with companies that wish to self-disclose. The Guide - lines provide companies with a general understanding of the expectations of the Dutch Public Prosecution Service and the factors it may consider when deter - mining eligibility for a penalty reduction. Although the Guidelines are intended to provide practical instruc - tions for companies on self-reporting, co-operation and self-investigation, it is important to recognise the inherent ambiguity and the high standards they set. Firstly, the requirements relating to self-reporting, co- operation and self-investigation – and their influence on penalty reduction – are expressed using relatively
ambiguous and flexible language. For example, the Guidelines require the legal entity to submit data and (source) documents “relevant to” the criminal inves - tigation, including “all (other indications of) possible” suspected criminal offences. Terms such as “data and (source) documents”, “relevant to” and “all possible criminal offences” lack sufficient clarity and specific - ity, making it unclear what is precisely expected of the legal entity involved. Secondly, there is no certainty or clarity regarding whether, and to what extent, self-reporting, co-oper - ation and self-investigation will influence the final pen - alty to be set. Throughout the Guidelines, it is merely stated that the Public Prosecution Service “may” apply a fine reduction and may refrain from granting any reduction if, in its view, the conditions have not been sufficiently met. This approach does not pro - vide legal entities with a reasonable basis to assess how their co-operation may translate into a penalty reduction. Similarly, a clearly defined starting point for calculating any fines is also not provided. In contrast, violations under US law clearly spell out how fines are to be calculated. Lastly, the requirements for self-reporting, co-oper - ation and self-investigation are admittedly high and comprehensive for legal entities. The Public Prosecu - tion Service expects nothing less than a voluntary, complete, clear and structured written report. Co- operation entails providing all relevant data – both domestic and international – including any available underlying documentation, as well as making all rel - evant employees and, where possible, former employ - ees from both home and abroad available for ques- tioning. This can impose significant costs on legal entities, particularly in the absence of clear practical and operational guidance. Additionally, the issue of self-incrimination is not discussed. Further, current and former employees being entangled in such an investigation could have far-reaching effects within a company’s environment without clear guidance and safeguards. Trends and conclusion The Dutch Public Prosecution Service and other bod - ies have been fairly proactive in terms of sanctions enforcement. The Dutch Public Prosecution Service
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