2 of 29

Legal basis �

TFUE (entered into force in 2009):

- the Union shall endeavour to ensure a high level of security through measures to prevent and combat crime (Art 67)

- corruption listed among the particularly serious crimes with a cross-border dimension for which minimum rules on the definition of criminal offences and sanctions may be established (Art. 83 (1);

- possibility to establish measures to promote and support the action of MS in the field of crime prevention (Art. 84)

EU anti-corruption package: Communication and Anti-corruption report (2014)

3 of 29

Anti-corruption instruments at EU level�

European Semester of economic governance:

- Country reports and country specific recommendations

Mainstream AC provisions in relevant legal initiatives:

- Public Procurement Directives

- 4^th and 5^th Anti-Money Laundering Directives

- Proposed directive on the whistleblower protection

- Measures to enable access for competent national authorities and exchange of financial and other information

- Directive for the protection of the EU financial Interests and Regulation establishing the European Public Prosecutor's Office.

Technical and financial support (EU anti-corruption experience-sharing programme, ISF-Police, ESIF, Horizon 2020, 7th Framework Programme for Research and Technological Development, Structural Reforms Support Program)
Participation in international fora active in the fight against corruption: GRECO, UNCAC, G20, OECD.

4 of 29

I. ANTI-CORRUPTION CORE ACQUIS

5 of 29

Anti-corruption policy: the core acquis

1997 Convention addressing corruption involving officials of the EU or officials of Member States
Council Framework Decision (2003) on the fight against corruption in the private sector
Directive on the Protection of EU financial interests (PIF Directive, 2017)
Regulation on European Public Prosecutor's Office (2017)

6 of 29

CONVENTION ON FIGHTING CORRUPTION INVOLVING OFFICIALS OF THE EU OR OFFICIALS OF MEMBER STATES (1997)�(entered into force on 28 September 2005)

General purpose: criminalisation of acts of active and passive corruption, liability of heads of businesses, penalties including deprivation of liberty.
Definitions of national and Community official
Passive corruption= the deliberate action of an official, who, directly or through an intermediary, requests or receives advantages of any kind whatesoever, for himself or for a third party, or accepts a promise of such an advantage, to act or refrain from acting in accordance with his duty or in the exercise of his functions in breach of his official duties.
Active corruption= the deliberate action of whosoever promises or gives, directly or through an intermediary, an advantage of any kind whatsoever to an official for himself or for a third party for him to act or refrain from acting in accordance with his duty or in the exercise of his functions in breach of his official duties.

7 of 29

CONVENTION ON FIGHTING CORRUPTION INVOLVING OFFICIALS OF THE EU OR OFFICIALS OF MEMBER STATES (1997)�(entered into force on 28 September 2005)

Instigating, aiding and abetting should also be punishable
Sanctions: effective, proportionate and dissuasive criminal penalties, including, at least in serious cases, penalties involving deprivation of liberty which can give rise to extradition.
Criminal liability of heads of businesses or any persons having power to take decisions or exercise control within a business for corruption offences committed by a person under their authority acting on behalf of the business.
Clarification of jurisdiction
If the offence concerns two MS, they should cooperate effectively in the investigation, the prosecution and in carrying out the punishment imposed by means, for example, of mutual legal assistance.

8 of 29

CORRUPTION IN THE PRIVATE SECTOR�FRAMEWORK DECISION 2003/568/JHA (entered into force 22 July 2005)

Objectives:

Criminalizes active and passive corruption in the private sector
Ensures liability of legal persons
Ensures effective, dissuasive, proportionate sanctions

Important elements:

Definition of "legal person" and "breach of duty
Active corruption=promising, offering or giving, directly or through an intermediary, to a person who in any capacity directs or works for a private-sector entity an undue advantage of any kind, for that person or for a third party, in order that that person should perform or refrain from performing any act, in breach of that person's duties
Passive corruption= directly or through an intermediary, requesting or receiving an undue advantage of any kind, or accepting the promise of such an advantage, for oneself or for a third party, while in any capacity directing or working for a private-sector entity, in order to perform or refrain from performing any act, in breach of one's duties.

9 of 29

CORRUPTION IN THE PRIVATE SECTOR�FRAMEWORK DECISION 2003/568/JHA

Applies to both profit and non-profit organisations
Instigating, aiding and abetting constitute criminal offences
Effective, proportionate and dissuasive criminal penalties- maximum of at least 1-3 years of imprisonment
Liability of legal persons
Legal persons could also be held liable for lack of supervision or control
Jurisdiction: offence is committed in whole or in part within its territory; by one of its nationals; for the benefit of a legal person that has its head office in the territory of that Member State.
Most significant articles – 2 (definition/elements of the offence), 5 (liability of legal persons), 6 (sanctions)
3^rd implementation report under preparation.

10 of 29

PROTECTION OF THE EU’s FINANCIAL INTERESTS�Directive on the fight against fraud to the Union’s financial interests by means of criminal law (PIF Directive), 2017 - establishing minimum standards of protection against fraud and related offences affecting EU funds – entered into force on 5 July 2017 – transposition date: 6 July 2019

MS are required to:

Transpose definitions of criminal offences affecting the Union’s financial interests, sanctions and limitation periods
ensure liability of heads of businesses or any person having power to take decisions or exercise control within a business
provide that MS have jurisdiction over offences which take place completely or partially within their territory or the offender is a national of the MS

11 of 29

PIF Directive

General principles: effective, proportionate and dissuasive criminal penalties (including imprisonment in serious cases)
MS obligation to criminalise corruption in relation to the Union’s financial interests
definitions of active and passive corruption, linking this to an act or omission which damages or is likely to damage the Union’s financial interests
Wide definition of a ‘public official’: covers officials of MS as defined by national legislation (including any person holding an executive, administrative or judicial office at national, regional or local level)

12 of 29

Definitions of corruption – PIF Directive

Active corruption

the action of the action of a person who promises, offers or gives, directly or through an intermediary, an advantage of any kind to a public official for himself or for a third party for him to act or to refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union's financial interests.

Passive corruption

the action of a person who promises, offers or gives, directly or through an intermediary, an advantage of any kind to a public official for himself or for a third party for him to act or to refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union's financial interests.

13 of 29

PIF Directive

New offence: misappropriation (Article 4(3)).
Sanctions: criminalisation threshold EUR 10,000.
Criminal offences referred to in Articles 3 and 4 are punishable by a maximum penalty of at least four years of imprisonment when they involve considerable damage or advantage (> EUR 100,000).
Serious cross-border VAT fraud (> EUR 10 Mln).
Limitation periods: general obligation for Member States to provide for a limitation period that enables the investigation, prosecution, trial and judicial decision of criminal offences for a sufficient period of time after the commission of the offences listed in Art. 3, 4 and 5.
Specific limitation period of 5 years for serious offences punishable by a maximum sanction of at least four years of imprisonment.

14 of 29

European Public Prosecutor’s Office

Council Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office – entered into force on 20 November 2017

Independent and specialised Union body with 22 participating MS
Central office in Luxembourg and European Delegated Prosecutors at MS level
Competent for investigating, prosecuting and bringing to judgment crimes as defined in the PIF Directive, such as fraud, corruption, money laundering or serious cross-border VAT fraud
Jurisdiction: a case is initiated and handled by the EDP where the focus of the criminal activity is, or in case of multiple offences, where the bulk of the offences has been committed (possibility for a case to be reallocated to EDP in another MS, to merge or split a case)
Expected start date: end of 2020

15 of 29

II. LEGISLATION WITH ANTI-CORRUPTION INCIDENCE

16 of 29

Legislation with anti-corruption provisions

- Anti-money laundering legislation (4^th and 5^th AMLD)

- Council Decision concerning cooperation between AROs of the MS in the field of tracing and identification of proceeds from, or other property related to crime

- Directive on the freezing and confiscation of the instrumentalities and proceeds of crime in the European Union (political agreement)

- Proposal for a Regulation on the mutual recognition of freezing and confiscation orders (political agreement)

- Proposal for a Directive on countering money laundering by criminal law (political agreement)

- Proposal for a Directive laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences (under negotiation)

- Proposal for a Directive on the protection of persons reporting on breaches of Union law (under negotiation)�

17 of 29

Some detailed examples

- 4^th AMLD: makes the fight against money laundering and terrorism financing more effective; improves transparency and prevents tax avoidance; covers transactions and business relationships with politically exposed persons; sets clear transparency requirements about beneficial ownership for companies to be stored in a central register.

- 5^th AMLD: sets out measures to better counter the financing of terrorism and to ensure increased transparency of financial transactions; increases transparency about who really owns companies and trusts; improves the work of FIUs with better access to information through centralised bank account registers.

- Decision concerning cooperation between AROs - the purpose of AROs is to facilitate the tracing and identification of proceeds of crime which may become the subject of a freezing, seizure or confiscation order. EU countries are required to establish or designate at least one ARO in their territory. AROs are obliged to exchange information with each other irrespective of their status (law enforcement, judicial or administrative).

Measures enabling the national competent authorities to access and exchange financial and other information in a timely manner. The measures aim to grant law enforcement authorities, Asset Recovery Offices and Anti-Corruption authorities with direct access to the information contained in the centralised bank account registries
Proposal of Directive on the protection of whistleblowers- which aims to guarantee a high level of protection for persons who report breaches of EU law by setting EU-wide standards. It will also establish safe reporting channels and will require national authorities to inform citizens and provide training for public authorities on how to deal with whistleblowers.

18 of 29

Legislative proposals

- Proposal for a Regulation on the mutual recognition of freezing and confiscation orders- facilitates cross-border recovery of criminal assets and lead to more efficient freezing and confiscation of funds from illicit origin in the EU without cumbersome formalities.

- Proposal for a Directive on countering money laundering by criminal law - establishes minimum rules on the definition of offences and sanctions related to money laundering. It establishes a list of “predicate offences” (the underlying criminal activities generating the proceeds which are then laundered).

- Proposal for a Directive to facilitate access and exchange financial and other information in a timely manner. The measures aim to grant law enforcement authorities, AROs and Anti-Corruption authorities with direct access to the information contained in the centralised bank account registries

- Proposal for a Directive on the protection of whistleblowers- aims to guarantee

a high level of protection for persons who report breaches of EU law by setting EU-wide standards. It establishes safe reporting channels and requires national authorities to inform citizens and provide training for public authorities on how to deal with whistleblowers.

19 of 29

III. INTERNATIONAL INSTRUMENTS

20 of 29

1. Council of Europe

Criminal Law Convention on Corruption and Additional Protocol

Civil Law Convention on Corruption

2. OECD

Convention on combating bribery of foreign public officials in international business transactions

3. United Nations

Convention against Corruption

Convention against Transnational Organised Crime

21 of 29

CoE Criminal Law Convention on Corruption and Additional Protocol (1999)

Chapters including:
measures to be taken at national level
monitoring (GRECO)
international cooperation
Provisions
develops common standards concerning: certain corruption offences (i.e. active/passive bribery in public and private sector); trading in influence; money laundering the proceeds of corruption offences; account offences
corporate liability for legal persons with a power of representation, an authority to take decisions or an authority to exercise control within the legal person. This includes aiding and abetting.
penalties have to be effective, proportionate and dissuasive

22 of 29

CoE Civil Law Convention on Corruption (1999)

Enables persons who have suffered damage as a result of corruption to receive fair compensation. The act of corruption is not confined to the public sector
Liability arises even if all parties to it are in the private sector
Provisions on compensation for damage
No sanction taken against an employee who reports suspicions of corruption in good faith and on reasonable grounds and annual accounts of companies are drawn up clearly and give a true and fair view of the company’s financial position.

23 of 29

Other Council of Europe Instruments�

20 Guiding Principles
Recommendation on Codes of Conducts for public officials
Recommendation on common rules against corruption in the funding of political parties and electoral campaigns

24 of 29

OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

Signed on 17 December 1997, entered into force on 15 February 1999; 44 Signatories
Active bribery of foreign officials and officials of international organisations is made a criminal offence
Covers also money laundering and accounting crimes
Establishes liability of legal persons
Effective, proportionate and dissuasive criminal penalties
Thorough evaluation mechanism through the Working Group on Bribery (three phases: adequacy of legislation, effectiveness of implementation, enforcement).

25 of 29

UN Convention against transnational organised crime (UNTOC)

Adopted in November 2000 and entered into force in September 2003; concluded on behalf of the EU in April 2004
Aims to enable law enforcement authorities to cooperate effectively in combating organised crime by eliminating differences and different definitions of crimes among national legal systems
States parties to ensure that four serious types of crime are regarded as a crime in their domestic laws: participation in an organised criminal group, money laundering, corruption, and the obstruction of justice
UNTOC only deals with organised crime and public sector corruption
Improves co-operation on extradition, mutual legal assistance, transfer of proceedings and joint investigations; provisions for victim and witness protection, shielding legal markets from infiltration by organised criminal groups.

26 of 29

UN Convention against Corruption�(UNCAC)�

Adopted in October 2003 and entered into force on 14 December 2005
Ever first global instrument tackling fighting corruption.
Covers four main strands: prevention, criminalisation and law enforcement, international cooperation and asset recovery.
EU accession in September 2008 by Council Decision 2008/801/JHA.
Review mechanism set up in 2009 and divided in two review cycles (first covering criminalisation, law enforcement and international cooperation; second cycle on prevention and asset recovery).

27 of 29