Carri Ginter
Associate Professor of EU Law at Tartu University, member of the Management Board
at the Port of Tallinn, partner at law firm SORAINEN
Marko Kairjak
Lecturer at Tartu University (white-collar and property offences), visiting Lecturer at
Estonian Business School (finance ethics and law), partner at law firm VARUL
Case 1
AS Higi & Vaev and AS Kavalpea have been negotiating about the price and terms of
the sale of a company belonging to AS Higi & Vaev for a long time. AS Kavalpea is
interested in buying the company but does not want to give in on some specific
terms.
Ain, who is the board member of AS Kavalpea, seeks help from his attorney-at-law,
Toomas, to get out of this dead-end situation. After getting acquainted with the
situation, Toomas discovers that the representative of AS Higi & Vaev is its board
member and shareholder Jürgen, who happens to be his childhood friend.
Toomas tells Ain that he knows the board member of AS Higi & Vaev personally and
maybe a promise of “little bonus” would help to speed up the negotiation process in
a favorable way to AS Kavalpea. Ain is not quite sure whether doing things this way is
legal but having the prospect of making a good deal in mind, he gives his acceptance
to the lawyer.
Toomas contacts Jürgen and offers him 20 000 euros for persuading other
shareholders to close the deal according to the terms of AS Kavalpea and in that way
speeding up the process. Jürgen is happy to accept the offer and takes the money. AS
Higi & Vaev and AS Kavalpea conclude an agreement and AS Kavalpea purchases the
company belonging to AS Higi & Vaev. The price of the company stays in the upper
limits of the price boundaries the supervisory body of AS Higi & Vaev had set for the
deal.
Case 1 - questions
• Give your opinion about the possible criminal responsibility of the
relevant persons.
• Would the legal situation be different when Jürgen would not have
accepted what Toomas offered him?
• Give your opinion about the defense of the board member Ain,
who claims that he assumed that the idea coming from a lawyer
will be legal and did not question it. What would have been the
right way to act in this situation?
Case 2
John is working in the procurement unit of a large manufacturing enterprise Stainless Inc. It is
his responsibility to procure necessary resources for company’s everyday work, from office
supplies to equipment necessary for production. The goal is to find the product with the best
price and the best quality.
When John’s employer wishes to renew the company’s computers, it is John’s assignment to
carry out the procurement procedure. John sends price inquiries via e-mail to Peter’s
company Black Ltd. and to Jane’s company White Ltd. He also uploads the information to the
company’s website “News” subdivision, but he fails to put it to the subdivision
“Procurement”. John says to his superiors that he also sent out three e-mails to other possible
tenderers.
The Stainless Inc. receives two tenders, one of which is 10 000 euros and the other 9 500
euros. Peter, who’s company made the cheaper tender, is John’s classmate. Peter calls John
and offers him 5% of the transaction amount if Black Inc. wins the procurement. John takes
few days to think about that offer and decides to take it.
Stainless Inc. enters into a contract with the Black Inc. and purchases computers. The money
from Black Ltd. is transferred to John bank account as promised. John believes that nothing
bad has happened, since the Black Ltd.’s tender was cheaper anyway and the cost of the
contract did not exceed the amount approved by the supervisory board of the Stainless Inc.,
although it was close to the maximum limit approved.
Jane, who’s company White Ltd. made the second best tender, heard the rumours about how
the Black Ltd. won the procurement and informed the management board of the Stainless
Inc.
Case 2 - questions
What do you think about:
• John’s actions as procurement specialist?
• Peter’s actions?
How should the employer react?
How to prevent these kinds of situations happening in the company?
Division 9
Corruption Offences in Private Sector
[RT I, 12.07.2014, 1 - entry into force 01.01.2015]
§ 4023. Accepting of bribe in private sector
(1) Requesting, consenting to promising, or accepting of property or other advantage by a person
competent to engage in economic activities in the interests of a person in private law, and an
arbitrator to himself or herself or third person, in exchange for abuse of his or her competence
is punishable by a pecuniary punishment or up to five years’ imprisonment.
(2) The same act, if committed by a legal person,
is punishable by a pecuniary punishment.
[RT I, 12.07.2014, 1 - entry into force 01.01.2015]
§ 4024. Giving of bribe in private sector
(1) Promising or giving of a bribe in the private sector
is punishable by a pecuniary punishment or up to five years’ imprisonment.
(2) The same act, if committed by a legal person,
is punishable by a pecuniary punishment.
[RT I, 12.07.2014, 1 - entry into force 01.01.2015]
§ 4023. Accepting of bribe in private sector
(1) Requesting, consenting to promising, or accepting of property or other advantage by a person
competent to engage in economic activities in the interests of a person in private law, and an
arbitrator to himself or herself or third person, in exchange for abuse of his or her competence
is punishable by a pecuniary punishment or up to five years’ imprisonment.
(2) The same act, if committed by a legal person,
is punishable by a pecuniary punishment.
[RT I, 12.07.2014, 1 - entry into force 01.01.2015]
§ 4023. Accepting of bribe in private sector
(1) Requesting, consenting to promising, or accepting of property or other advantage by a person
competent to engage in economic activities in the interests of a person in private law, and an
arbitrator to himself or herself or third person, in exchange for abuse of his or her competence
is punishable by a pecuniary punishment or up to five years’ imprisonment.
(2) The same act, if committed by a legal person,
is punishable by a pecuniary punishment.
[RT I, 12.07.2014, 1 - entry into force 01.01.2015]
• Person competent to engage in economic activities in the interests of
a person in private law
• Requesting, consenting to promising, or accepting of property or
other advantage
• In exchange
• Abuse of his or her competence
• 4023 Abuse of competence (pädevuse kuritarvitamine)
• Some examples from the past and present:
• 2172 Illegal use of right (õiguse ebaseaduslik ärakasutamine)
• Former § 289 unlawful abuse of position (ametiseisundi ebaseaduslik
ärakasutamine)
• UK Fraud Act 2006 Section 4 dishonest abuse of a position
• Sgerman StGB § 266 abuse fo power (Befugnis missbrauchen)
Thank you!