Airbus Uk Deferred Prosecution Agreement

- 02/12/20
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The investigation and monitoring of the corruption of a foreign official is governed by the applicable rules and principles of each party. They should not be influenced by considerations of national economic interest, by potential consequences on relations with another state or on the identity of the individuals or legal entities concerned. The SFO opened its investigation following the proposed aircraft lease by the aforementioned Sri Lankan company. As part of the lease, Airbus submitted an application for export credit financing to UK Export Finance (UKEF), a UK government agency, in November 2014, which requested disclosure of the details of a co-agent or consultant involved in the underlying agreement. UKEF identified several problems and expressed concern about the information provided by Airbus, which led Airbus to withdraw its application. Both UKEF and Airbus reported to the SFO on 1 April 2016, the SFO investigation was opened on 15 July 2016 and a joint investigation team (JITA) was concluded between the SFO and the PNF on 31 January 2017. I was actively involved in the signing of the [Convention] in December 1997. I can tell you that in that sense, the term [national economic interest] was intended to prevent exporters from OECD countries from avoiding prosecution under the Convention, arguing that exports were in the national economic interest – and therefore bribes were needed to protect their export markets. That is what the word “national” means there. I do not remember the jobs that were ever discussed in the context of national economic interests within the meaning of the Convention, nor were the data protection authorities ever considered in the Convention. “Finally, I should say this about DPA, its specific concepts and its positive effects.

The Dpa is demanding a significant fine from Airbus, thus sending a significant deterrent message to the criminals. It also acknowledges and rewards what Airbus has just done to tackle the problem by reducing the fine by 50%. The data protection authority also gave Airbus the opportunity to demonstrate its recovery and commitment to effective compliance during the AP period, without facing the possible consequences of a criminal conviction. This will ensure that a large UK employer continues to operate to high ethical and compliance standards. By connecting with the data protection authority, the SFO avoids the considerable time and money involved in pursuing Airbus and can devote its limited resources to other important work. The data protection authority should encourage exposure and self-reporting of organisations in situations similar to those of Airbus. As the SFO says, this is essential in the context of complex corporate crime. Canadian organizations and prosecutors are still waiting to see how Canada`s deferred repressive regime will unfold (see our July 2018 bulletin for an overview of the legislation). Although Canada has not yet reached an agreement on adjourned prosecutions (“DP”), we compared in previous bulletins the French and Canadian approaches of data protection authorities (September 2019 bulletin) and highlighted the relative lack of guidelines from Canadian authorities regarding the Canadian regime (February 2020 Bulletin).

We also discussed Canada`s legal prohibition on examining the “national economic interest” for foreign bribery offences (June 2019 Bulletin) and highlighted an inherent tension that could ultimately undermine the success of Canada`s CCA regime. At the beginning of this year, this tension was highlighted. In accordance with paragraph 8, paragraph 1, of Schedule 17 of the Crime and Courts Act 2013, the Tribunal must decide whether a DPA is in the interests of justice.

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