Belgium
Belgium already largely incorporates the Directive's rules and has a long tradition of extensive corporate criminal liability, including for public and private bribery. However, maximum penalty thresholds for public and private bribery attributed to legal entities currently fall below the Directive, and so will need to be increased. While the introduction of turnover-based fines will be a novelty under general criminal law, there is a trend for criminal fines to be calibrated to the financial strength of the offender.
The private bribery offense currently provides that where the alleged bribee acted with the knowledge or (explicit or implicit) consent of the company, the bribee cannot be held criminally liable. The Directive, like its predecessor, does not require the prosecution to evidence that the bribee acted without knowledge and consent of the company, only that the bribee committed a breach of duty. It remains to be seen whether the Belgian regime will be amended to align with the Directive, and what practical implications this may have on enforcement.
Germany
There is unlikely to be a systemic overhaul in Germany. The Directive will, however, lead to the introduction of new offenses and the tightening of existing ones. Likely changes will be:
- Expansion of an existing offense to catch a foreign public official who accepts a benefit or to whom a benefit is granted in return for the discharge of a duty.
- Expansion of existing offenses targeting elected representatives.
- A new trading in influence offense.
- A broader definition of benefit (currently German law confines it to pecuniary benefits in some offenses).
- Legislative clarification that compliance measures are a mitigating factor, including when implemented after the offense (in Germany the courts already do this, but it is not codified).
In addition, fines for companies will increase significantly so the importance of effective compliance management systems is elevated. Companies are advised to maintain robust compliance programs. Policies on, for example, sponsorship, lobbying, and gifts should be kept up to date given the new trading in influence offense.
France
France has already enacted extensive compliance obligations (in particular through the 2016 Sapin II Law), but the Directive will amend:
- Corporate liability: formally introducing a failure to supervise or control offense.
- Turnover-based fines: while the mechanism is not entirely novel under French law – having been applied, for example, in French-style DPAs (CJIP), insider trading, and misleading commercial practices, it may substantially increase the current fines for corruption-related offenses, which are generally fixed or proportionate to the proceeds of the offense rather than turnover.
- Mitigating factors: the Directive introduces a mechanism of adjusting penalties to take account of mitigating circumstances. This would be relatively novel in France, which has no binding sentencing guidelines and very few instances of mitigating circumstances in court cases. However, in French-style DPAs, the National Financial Prosecutor already applies mitigating circumstances such as spontaneous disclosure of the facts, active cooperation with investigators, and prior compensation of the victims.
Italy
Italy already has a relatively comprehensive anti-corruption framework, including robust provisions governing corporate criminal liability for bribery related crimes. Many requirements of the Directive therefore reflect standards already existing under Italian law.
The Directive will however necessitate some targeted legislative adjustments.
Whilst Italian law criminalizes "trading in influence," revisions are needed: eliminate the "existing relationship" requirement, broaden "advantage" beyond economic benefit, and clarify that the offense applies whether or not the influence is genuine or successful.
The most significant impact will likely concern penalty thresholds for businesses. Italian law currently imposes, in addition to disqualifying sanctions, fines on companies through a "quota" system. Each quota ranges from approximately EUR 258 to EUR 1,549. Maximum aggregate fines under this system are determined independently of the entity's turnover, sometimes resulting in penalties that bear no relation to the actual size and revenues of the business. Currently, the offense of “trading in influence” carries a maximum pecuniary sanction of EUR 309,800. This is in stark contrast to the Directive's turnover-based penalty floors of 3–5% of worldwide turnover (or EUR 24–40 million).
The Netherlands
The Netherlands already covers core bribery offenses and modes of liability in its Criminal Code but does not yet define trading in influence as a standalone offense. Implementation must distinguish transparent and legitimate advocacy and lobbying from improper influence-brokering.
The current Dutch maximum fine of 10% of the relevant legal entity’s annual turnover – although rarely applied in practice – already meets and exceeds the Directive's turnover-based penalty floors of 3-5%. That said, the Directive's reference to 'worldwide turnover' may require legislative clarification to ensure groupwide turnover is caught for multinational companies, which is currently subject to debate.
Poland
At present, corporate criminal liability is virtually non-existent in Poland. It is highly likely that the Polish parliament will use the Directive as an opportunity to extend such liability to all types of white-collar crime, including tax offenses. It is also likely that the current prerequisite of a prior conviction of an individual before prosecuting a company will be removed.
Polish entities will need to implement ABAC policies and procedures if they don’t already have them. This will represent a significant compliance shock for Polish entities, which have to date focused their efforts on preventing exposure arising from antitrust regulations, GDPR and MAR.
Operational implications for ABAC programs
Whilst it will take some time for Member States to implement the Directive, and most larger businesses will already have implemented broad ABAC programs; the following areas warrant review:
- Third-party controls. The new trading in influence offense targets intermediated access-selling, so controls should cover lobbyists, consultants, introducers, and others. Policies need to distinguish proper advocacy from improper influence, reviewing retainer terms, fees, and conflicts. Due diligence questionnaires should clarify the intermediary's relationship with officials, fee arrangements tied to outcomes, and disclosure of engagement to authorities. Contracts must require intermediaries to avoid improper influence and grant audit rights to verify services.
- Public official interactions. Heightened scrutiny applies to benefits linked to broadly defined ‘public officials. Businesses will need to ensure third-party due diligence and training captures this broader category, particularly when dealing with state-owned enterprises, privatized utilities, or public-private partnerships.
- Penalty exposure. Turnover-based corporate fines will raise the stakes in bribery enforcement. Prosecutors can be expected to seek penalties calibrated to groupwide turnover, with consequent impacts on reserve-setting and negotiation dynamics. Penalty exposure will also be impacted by changes to limitation periods. Both will impact the risk analysis for a purchaser should a potential bribery issue arise in an M&A context.
- Compliance documentation. Formal recognition of an effective compliance program as a mitigating factor encourages investment in risk-based systems with documented risk assessments, proportionate policies and training, robust third-party management, speak-up channels, investigation protocols and remediation tied to root-cause analysis. Organizations should begin documenting measurable outcomes and data-driven evidence of program effectiveness.
Conclusion
Over the next 24 to 36 months, expect national transposition legislation across EU Member States, with accompanying regulatory guidance. Organizations that proactively review their ABAC frameworks will be best positioned to demonstrate effective compliance when the new rules take effect.
Our next article will consider what the Directive means for businesses with UK Bribery Act focused compliance programs.
Ensuring compliance programs keep up with new corporate criminal offenses was identified as one of the key challenges for 2026 in the A&O Shearman Cross-border white collar crime and investigations review 2026. Read the review for the other challenges.
Please contact your normal A&O Shearman contact or one of the authors of this article if you would like to discuss how the Directive may impact your organization.
