In case you are wondering whether you are allowed to send that bottle of wine to your favourite client or donate to a charity, read below.
Can I send my client a small Christmas gift?
Yes, a modest gift such as a small box of chocolates or a small promotional product will always be ok.
What about a voucher for an all-day skiing trip?
This depends on your client, the value of the voucher and your actual motivation for making such a generous gift. In case your client is a public official, a voucher for an all-day skiing trip would most likely be considered undue. Thus, you will have to make sure that it is not granted (or may be perceived as being granted) in return for a specific official transaction or a specific legal act or with the intention of influencing the public official. Gifts given at the time of a tender or during a dispute could be perceived as being a bribe, no matter how innocent they actually are.
Is there a specific monetary threshold?
No, not according to the law. It will rather be considered whether the gift was in line with local customs, whether it was offered to all clients or just a specific public official and/or if you have received something in return, ie a permit you have been waiting for.
To what extent is there a duty to investigate whether the recipient of the gift is a public official?
If you are sending a Christmas gift to all of your clients, then there is no duty. If you have chosen a specific group, we recommend double checking if one of the recipients is a public official.
No Christmas parties this year. Is it ok to make a donation to a charity instead?
Yes, however you have to make sure that the donation will not be perceived as being granted in exchange for a certain act. Only recently the state prosecutor for economic crimes and corruption "WKStA" indicted several property developers claiming that the donations they made to a charity founded by a public official were in fact bribes to secure building permits and other favours. Thus, prior to making a donation we recommend assessing the recipient and the actual timing of the donation.
Also, you should bear in mind that you are donating company money and not your own. When donating company money, there is a fine line between the use of discretionary powers to show corporate social responsibility, and breach of trust. When making a donation the management board has to document that its decision was guided by the potential benefit the donation could bring for the shareholders, the employees and the public rather than by personal interests of a board member, ie a personal passion for music or art.
By Klara Kiehl, Counsel, and Katharina Mydza, Associate, Schoenherr