Forslag til EUROPA-PARLAMENTETS OG RÅDETS DIREKTIV om bekæmpelse af korruption, om erstatning af Rådets rammeafgørelse 2003/568/RIA og konventionen om bekæmpelse af bestikkelse, der involverer tjenestemænd ved De Europæiske Fællesskaber eller i Den Europæiske Unions medlemsstater, og om ændring af Europa-Parlamentets og Rådets direktiv (EU) 2017/1371

EN EN
EUROPEAN
COMMISSION
Brussels, 3.5.2023
COM(2023) 234 final
2023/0135 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on combating corruption, replacing Council Framework Decision 2003/568/JHA and the
Convention on the fight against corruption involving officials of the European
Communities or officials of Member States of the European Union and amending
Directive (EU) 2017/1371 of the European Parliament and of the Council
Offentligt
KOM (2023) 0234 - Forslag til direktiv
Europaudvalget 2023
EN 1 EN
EXPLANATORY MEMORANDUM
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Corruption is highly damaging to society, to our democracies, to the economy and to
individuals. It undermines the institutions on which we depend, diluting their credibility as
well as their ability to deliver public policies and quality public services. It acts as an enabler
for organised crime and hostile foreign interference. Successfully preventing and fighting
against corruption is essential both to safeguard EU values and the effectiveness of EU
policies, and to maintain the rule of law and trust in those who govern and public institutions.
Corruption is an impediment to sustainable economic growth, diverting resources from
productive outcomes, undermining the efficiency of public spending and deepening social
inequalities. It hampers the effective and smooth functioning of the single market, creates
uncertainties in doing business, and holds back investment. Corruption is by its nature
difficult to quantify, but even conservative estimates suggest that it costs the EU economy at
least EUR 120 billion per year1
. The negative effects of corruption are felt worldwide,
undercutting efforts to bring good governance and prosperity, and to meet the United Nations
Sustainable Development Goals.
The Eurobarometer survey data of 2022 suggests that 68 % of people in the EU and 62 % of
companies based in the EU consider that corruption is widespread in their country2
. The 2022
State of the Union address puts the fight against corruption high on the European’s
Commission’s agenda highlighting the need to tackle it both at the EU and at the national
level. The European Parliament has also repeatedly called for more EU action to combat
corruption3
. The Council made similar calls, in particular in the context of cooperation to
fight organised and serious international crime4
.
The existing EU legal framework on combating corruption needs to be updated to take into
account the evolution of corruption threats and the legal obligations on the Union and
Member States under international law, as well as the evolution of national criminal legal
frameworks. Council Framework Decision 2003/568/JHA5
lays down requirements on the
criminalisation of corruption concerning the private sector. The 1997 Convention on the fight
1
This estimate is based on the work of specialised institutions and bodies, such as the International Chamber of
Commerce, Transparency International, UN Global Compact, World Economic Forum, and Clean Business is
Good Business, which suggest that the loss of economic wealth due to corruption amounts to 5% of GDP at
world level. Another estimate suggested that the costs of corruption were between EUR 179 billion and EUR
990 billion per year in the EU (The Cost of Non-Europe in the Area of Corruption study by RAND Europe,
2016).
2
See: https://home-affairs.ec.europa.eu/news/citizens-and-businesses-have-spoken-corruption-remains-serious-
problem-eu-countries-2022-07-13_en.
3
For example: Resolution of 25 October 2016, Fight against corruption and follow-up of the CRIM resolution,
2015/2110(INI), and European Parliament recommendation of 17 February 2022 to the Council and the Vice-
President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy
concerning corruption and human rights (2021/2066(INI)).
4
Council conclusions of 9 March 2023 setting the EU's priorities for the fight against serious and organised
crime for EMPACT 2022-2025.
5
Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector
(OJ L 192/54, 31.7.2003).
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against corruption involving EU officials or officials of EU Member States6
addresses certain
acts of corruption involving those officials in general. These instruments are, however, not
sufficiently comprehensive, and the existing rules in the Member States need to be developed
further to ensure a more coherent and effective response in the Union. Enforcement gaps at
national level and obstacles in the cooperation between the competent authorities in different
Member States have also emerged. Authorities in the Member States face challenges linked to
the excessive length of prosecution, short statutes of limitations, rules on immunity and
privileges, limited availability of resources, training and investigative powers to name a few.
The EU is a party to the United Nations Convention Against Corruption (UNCAC)7
, which is
the most comprehensive international legal instrument in this field, combining a wide range of
measures to prevent and fight corruption. This legislative proposal will update the EU
legislative framework, including by incorporating international standards binding on the EU,
such as those in the UNCAC. The aim is to ensure that all forms of corruption are
criminalised in all Member States, that legal persons may also be held responsible for such
offences, and that offences incur effective, proportionate and dissuasive penalties. In addition,
the proposal includes relevant measures to prevent corruption in accordance with international
standards and facilitate cross-border cooperation, as required by the UNCAC.
To root out corruption, both preventive and repressive mechanisms are needed. Member
States are encouraged to take a wide range of preventive, legislative and cooperative measures
as part of the fight against corruption. Failings in integrity, undisclosed conflicts of interests
or serious breaches of ethical rules can lead to corrupt activities if left unaddressed. The
prevention of corruption mitigates the need for criminal repression and has wider benefits in
promoting public trust and managing the conduct of public officials.
• Consistency with existing policy provisions in the policy area
The proposal for a Directive complements the EU Security Union Strategy (2020-2025)8
. In
April 2021, the Commission also adopted the 2021-2025 EU Strategy to tackle Organised
Crime9
with dedicated measures to combat corruption as an enabler of organised crime. As a
follow up, the Commission assessed the current state of play of both the legislative and the
operational dimension in preventing and fighting corruption in the context of an external
study, which was finalised at the end of 202210
.
The EU Strategy on Combatting Trafficking in Human Beings (2021-2025)11
, adopted in
April 2021, is closely interlinked with the EU Strategy to tackle Organised Crime. It
highlights that organised crime groups involved in trafficking in human beings increasingly
exploit legal businesses in their operations and are involved in other serious crimes, such as
corruption, to support their core activities. Corruption may further hinder detection of
6
Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against
corruption involving officials of the European Communities or officials of Member States of the European
Union (OJ C 195, 25.6.1997, p. 2).
7
United Nations 2003, United Nations Convention Against Corruption, Treaty Series 2349 (October): 41,
https://www.unodc.org/unodc/en/treaties/CAC/.
8
Communication of 24 July 2020 on the EU Security Union Strategy, COM/2020/605 final.
9
Communication of 14 April 2021 on the EU strategy to tackle organised crime 2021-2025, COM(2021) 170
final.
10
European Commission, Gaglio, I., Guzzon, J., Bartz, K., et al., Strengthening the fight against corruption.
Assessing the EU legislative and policy framework: final report for acceptance, Publications Office, 2023.
11
Communication of 14 April 2021 on the EU Strategy on Combatting Trafficking in Human Beings 2021-
2025, COM/2021/171 final.
EN 3 EN
trafficking in human beings, for instance if the authorities responsible for identifying the
victims are involved in corruption.
• Consistency with other Union policies
Rule of law toolbox
Since 2020, the Commission has been monitoring anti-corruption developments at national
level as one of the central pillars of the annual Rule of Law Report cycle. Since 2022, the
reports also include recommendations for each country, with the objective to support Member
States in their efforts to take forward ongoing or planned reforms, to encourage positive
developments, and to help identify where improvements or follow-up to recent changes or
reforms may be needed. Anti-corruption measures are also part of the work with Member
States in the framework of the European Semester and the Recovery and Resilience Plans.
The European Semester has assessed challenges in the fight against corruption, such as public
procurement, integrity in public administration, the business environment and healthcare
sectors. Country-specific recommendations under the Semester have guided concrete reforms
and investments to improve the capacity to fight corruption in several Member States. These
are reflected in concrete milestones in the national Recovery and Resilience Plans .
Under the Regulation on a general regime of conditionality for the protection of the Union
budget (Regulation (EU, Euratom) 2020/2092), the Commission can propose that the Council
of the EU imposes budgetary measures on EU Member States where breaches of the rule of
law principles – including corruption – can affect, or seriously risk affecting, the sound
financial management of the Union budget or of the financial interests of the Union in a
sufficiently direct way.
Corruption is also a tool for foreign interference in democratic processes, the core target of
action now being developed in the Defence of Democracy package also included in the
Commission Work Programme 2023.
Confiscation and asset recovery
Directive 2014/4212
established rules on freezing and confiscation of instrumentalities and
proceeds of crime to effectively deprive criminals of their illegal assets. It included in its
scope offences covered by the Convention on the fight against corruption involving officials13
as well as the Council Framework Decision 2003/568/JHA on combating corruption in the
private sector14
. In May 2022, the Commission presented a proposal for a new Directive on
Asset Recovery and Confiscation15
, building upon the previous legislation16
. The proposal
12
Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and
confiscation of instrumentalities and proceeds of crime in the European Union (OJ L 127/39, 29.4.2014).
13
Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against
corruption involving officials of the European Communities or officials of the Member States of the European
Union (OJ C 195, 25.6.1997).
14
Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector
(OJ L 192, 31.7.2003).
15
Brussels, 25 May 2022, COM/2022/245 final.
16
Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and
confiscation of instrumentalities and proceeds of crime in the European Union (OJ L 127/39, 29.4.2014);
Council Decision 2007/845/JHA of 6 December 2007 concerning cooperation between Asset Recovery
Offices of the Member States in the field of tracing and identification of proceeds from, or other property
related to, crime (OJ L 332/103, 18.12.2027); Council Framework Decision 2005/212/JHA of 24 February
2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property (OJ L 68/49, 15.3.2005);
EN 4 EN
provides for a new and strengthened asset recovery framework to ensure that crime does not
pay. It would give authorities better tools to deprive organised crime groups of the financial
means to carry out further criminal activities, including corruption.
Anti-money laundering
Corruption and money laundering are intrinsically linked. Similar to other proceeds-
generating crimes, corruption offences are committed with the objective of obtaining a private
gain. Combating money laundering is the cornerstone of the broader agenda to fight serious
crime, including corruption, by depriving criminals of their ill-gotten gains and by
prosecuting those who assist in the laundering of such gains.
The Directive on combating money laundering by criminal law (EU) 2018/167317
establishes
ground rules on the criminalisation of money laundering and sets out that corruption must be a
predicate offence to money laundering. In July 2021, the Commission adopted legislative
proposals to strengthen the Union’s rules to combat money laundering and the financing of
terrorism (AML/CFT)18
, in particular by strengthening the ability of Financial Intelligence
Units (FIUs) to detect, analyse and disseminate financial intelligence related to the laundering
of proceeds of crime. This is a key prerequisite for effectively investigate and prosecute
corruption offences.
Trafficking in cultural goods is a lucrative business for organised crime. Beyond trafficking,
criminals can abuse even legally acquired cultural goods, for money laundering and sanctions
evasion. On 13 December 2022, the Commission adopted the EU Action Plan against
Trafficking in Cultural Goods19
which provides a comprehensive framework for the EU and
the Member States to advance prevention, detection and criminal justice response to cultural
goods trafficking and related crimes, including corruption.
Protection of whistleblowers
Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law
(‘the Whistleblowing Directive’)20
was adopted in 2019 with the aim of providing robust
protection of whistleblowers as a means of strengthening the enforcement of EU law in key
policy areas. The Directive also applies to the reporting of fraud, corruption and any other
illegal activity affecting the financial interests of the Union and the protection of persons
reporting such breaches21
. This Directive should be made applicable to the reporting of
offences as referred to in this proposal, as well as to the protection of persons reporting such
offences. Competent national authorities should also ensure that persons providing evidence
and Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the
mutual recognition of freezing orders and confiscation orders (OJ L 303/1, 28.11.2018).
17
Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating
money laundering by criminal law (OJ L 284, 12.11.2018).
18
Anti-money laundering and countering the financing of terrorism legislative package,
https://finance.ec.europa.eu/publications/anti-money-laundering-and-countering-financing-terrorism-
legislative-package_en.
19
Communication of 13 December 2022 on the EU Action Plan against Trafficking in Cultural Goods,
COM(2022) 800 final.
20
Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the
protection of persons who report breaches of Union law (OJ L 305 26.11.2019).
21
Article 10(3)(a) of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of
11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and
repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council
Regulation (Euratom) No 1074/1999 (OJ L 437, 28.12.2020, p. 49).
EN 5 EN
or otherwise cooperating with criminal investigations are given the necessary protection,
support and assistance in the context of criminal proceedings.
Investor citizenship and residence schemes
Investor citizenship and residence schemes (‘golden visas’ and ‘golden passport’ schemes)
can help hide or facilitate financial and economic crimes, including corruption22
. There are
also concerns around these schemes’ lack of transparency and control, linked as well to the
role of intermediaries in these schemes. The Commission’s proposal for a new Anti-money
Laundering Regulation23
seeks to establish supervision over the activities of intermediaries in
investor residence schemes. The Commission considers investor citizenship schemes, under
which citizenship of a Member State, and thus EU citizenship, is systematically awarded in
exchange for pre-determined payments or investments, and without a genuine link with the
awarding Member State, to be in breach of EU law. As a consequence, the Commission is of
the opinion that Member States must not operate such schemes24
. The Commission has taken
action against Member States maintaining such schemes directly on the basis of its
prerogatives as guardian of the Treaties, with a view to their termination.
A Commission Recommendation of 28 March 2022 called on Member States to take all the
necessary measures and safeguards to address the different risks inherent in investor residence
schemes, including those linked to corruption25
.
Protection of the Union’s financial interests
Directive (EU) 2017/137126
aims to establish a harmonised system, with minimum common
rules, to fight fraud and other criminal offences affecting the Union’s financial interests. The
Directive provides common definitions of a number of criminal offences affecting the
Union’s financial interests, which include fraud, money laundering, active and passive
corruption, and misappropriation.
Article 325 of the Treaty on the Functioning of the European Union (TFEU) establishes a
shared responsibility between the Union and the Member States to counter fraud and any
other illegal activity affecting the financial interests of the Union through effective and
deterrent measures. It also sets out an obligation to ensure the same level of protection
between the Union’s and the national financial interests.
In order to ensure that the Member States have in place equivalent measures to counter
corruption affecting the Union’s and their own financial interests, there is a need to align
Directive (EU) 2017/1371 with the standards set out in this Directive, in terms of sanctions,
aggravating and mitigating circumstances and limitation periods.
22
Report from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions, Investor Citizenship and Residence Schemes in the European
Union, 23 January 2019, COM(2019) 12 final. On 21 March 2023, the Commission referred one Member
State to the Court of Justice for breaching EU law with its investor citizenship scheme.
23
Proposal for a Regulation on the prevention of the use of the financial system for the purposes of money
laundering or terrorist financing, COM(2021) 420 final.
24
On 21 March 2023, the Commission referred one Member State to the Court of Justice for breaching EU law
with its investor citizenship scheme.
25
Commission Recommendation on immediate steps in the context of the Russian invasion of Ukraine in
relation to investor citizenship schemes and investor residence schemes, 28 March 2022, C(2022) 2028 final.
26
Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against
fraud to the Unions financial interests by means of criminal law (OJ L 198, 28.7.2017).
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In the context of the evaluation of Directive (EU) 2017/1371, in accordance with Article 18
thereof, the Commission will assess the extent to which the offences provided for in that
Directive also need to be updated in the light of the current Directive.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal bases for this proposal are Articles 83(1), 83(2) and 82(1)(d) TFEU.
Article 83(1) TFEU identifies corruption as one of the crimes with a particular cross-border
dimension. It enables the European Parliament and the Council to establish the necessary
minimum rules on the definition of corruption by means of directives adopted in accordance
with the ordinary legislative procedure.
There is no single definition of corruption as corruption exists in different forms involving
different participants. Indeed, corruption is an endemic phenomenon that takes multiple
shapes and forms across all facets of society, for example bribery, embezzlement, trading in
influence, trading of information, abuse of functions and illicit enrichment27
.
During the negotiations of UNCAC, United Nations States Parties carefully considered
whether to develop a legal definition of corruption. It was concluded that any attempt at a
comprehensive definition would inevitably fail to address some forms of corruption. As a
consequence, the international community reached consensus on certain manifestations of
corruption while leaving each State free to go beyond the minimum standards set forth in
UNCAC28
.
Article 83(2) TFEU is the legal basis on which Directive (EU) 2017/1371, which is amended
by the proposed Directive, was adopted. It sets out the EU’s competence to establish
minimum rules with regard to the definition of criminal offences and sanctions in EU policy
areas which have been subject to harmonisation measures, if this is essential to ensure the
effective implementation of such policy areas.
Article 82(1)(d) provides the legal basis for measures to facilitate cooperation between
judicial or equivalent authorities of the Member States in relation to proceedings in criminal
matters and the enforcement of decisions, such as the adoption of common rules concerning
jurisdiction in criminal matters.
• Subsidiarity (for non-exclusive competence)
Corruption is a transnational phenomenon that affects all societies and economies. Measures
adopted solely at national or even at Union level, without taking into account international
coordination and cooperation, would have unsatisfactory effect. Union action should give due
consideration to the work of the Group of States against Corruption of the Council of Europe
(GRECO), the Organisation for Economic Cooperation and Development (OECD) and the
United Nations Office against Drugs and Crime (UNODC). From 2016 to 2021, Eurojust
registered 505 cross-border corruption cases, with the number steadily increasing over this 5-
year period29
, which confirms that corruption is a gradually growing cross-border
phenomenon in the EU. A recent study published by the European Commission found that
27
Cost of Non-Europe Report Stepping up the EU’s efforts to tackle corruption, EPRS | European Parliamentary
Research Service, Meenakshi Fernandes and Lenka Jančová, 2023, p. 15.
28
UNODC, Safeguarding against Corruption in Major Public Events Facilitator’s Guide, p. 30.
29
Eurojust, Eurojust Casework on Corruption: 2016–2021 Insights, May 2022.
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“the lack of a coherent European framework including provisions for all corruption-related
crimes identified by international standards constitutes a source for legislative and operational
challenges in tackling cross-border corruption cases”30
.
Due to corruption’s transnational dimension, and taking into account already existing EU
legislation, EU-level action is expected to be more effective and efficient and to bring a
tangible added value compared to action taken by Member States individually. EU
intervention would create added value by further approximating criminal law of Member
States, contributing to ensuring a common playing field between Member States, as well as
coordination and common standards. As evidenced by the analysis in the yearly Rule of Law
Reports, the gaps in and limited enforcement of existing legislation, together with the need for
cooperation and capacity to prosecute cross-border cases, suggest the need for a stronger
coordination and definition of common standards across the EU. Moreover, the effectiveness
of prevention measures and investigative tools across the EU would be enhanced.
Furthermore, given the increasingly cross-border nature of corruption cases, a close
collaboration between Member States is required to ensure adequate prevention and
repression. Shared definitions of criminal offences would facilitate such collaboration.
Finally, the fight against corruption requires the combined efforts of many actors. Thus,
framing the issue of corruption in the broader context of the EU, as opposed to the single
national contexts of Member States, allows for a broader involvement of all relevant
stakeholders.
If no action is taken at EU level, the scale of the corruption problem is likely to increase
significantly in coming years. This would have clear cross-border implications and a direct
effect on the single market, the financial interest of the EU, and internal security more
generally. Corruption in one Member State is of direct interest to other Member States due to
its cross-border effects. Judicial and law enforcement authorities would continue to face
serious difficulties in dealing with more complex corruption cases, allowing perpetrators
opportunities to possibly shop for EU jurisdictions which do not capture, or capture less
effectively and comprehensively, certain corrupt activities within their anti-corruption
legislative framework. Continued corruption would ultimately result in a wider societal cost
through continued criminal activity and could also facilitate the continued operation of
organised crime groups.
• Proportionality
In accordance with the principle of proportionality, as set out in Article 5(4) TEU, the
proposed new Directive is limited to what is necessary and proportionate to efficiently prevent
and combat corruption and to implement international obligations and standards, in particular
as regards the criminalisation of corruption, in line with the UNCAC.
The UNCAC requires that parties to the Convention take legislative and other measures to
establish bribery, misappropriation and money laundering as criminal offences and to
consider taking legislative and other measures to establish certain other acts as criminal
offences (abuse of functions, trading in influence and, subject to its constitution and the
fundamental principles of its legal system, illict enrichment). In line with the commitments
contained in Political Declaration adopted at the 2021 UN General Assembly Special Session
against Corruption, the European Union should, to the degree possible, go beyond the
minimum and adopt additional measures for preventing and combating corruption.
30
European Commission, Gaglio, I., Guzzon, J., Bartz, K., et al., Strengthening the fight against corruption.
Assessing the EU legislative and policy framework: final report for acceptance, Publications Office, 2023.
EN 8 EN
The proposal defines the scope of the corruption offences with a view to covering all relevant
conduct while limiting it to what is necessary and proportionate. The proposal strengthens
existing international obligations where necessary, in order to improve cross-border
cooperation and to prevent criminals from exploiting the differences between national
legislations to their advantage.
The impact of the proposed measures on Member States in terms of necessary resources and
the need to adapt national framework is outweighed by the benefits provided by the increased
ability of Member States to tackle corruption by means of criminal law, including through
better cross-border cooperation between competent authorities in cases of cross-border
corruption. Approximation of measures related to prevention and the use of investigative tools
is provided for only to the extent needed for the proposed criminal law framework to function
effectively.
• Choice of the instrument
In accordance with Article 83 and Article 82(1) TFEU, the establishment of minimum rules
concerning the definition of criminal offences and sanctions in the area of serious crime with
a cross-border dimension, including corruption can only be achieved by means of a Directive
of the European Parliament and the Council adopted in accordance with the ordinary
legislative procedure.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The 1997 Convention on the fight against corruption involving public officials, covering
bribery in the public sector, and Framework Decision 2003/568/JHA, covering bribery in the
private sector, have not been subject to an ex-post evaluation.
The Commission has so far adopted two reports on the implementation of Directive (EU)
2017/1371. On 6 September 2021, the Commission adopted the first such report31
, which
outlines that all Member States bound by the Directive have transposed its main provisions,
yet the transposition of the Directive still needs to be improved with regard to some other
provisions. The report notes that some aspects of the definition of ‘public official’ have not
been transposed into the legislation of about a half of the Member States. According to the
report, an additional aspect ‘breach of duties’ is required in the definition of both active and
passive corruption in several Member States. This additional aspect significantly narrows the
scope of the Directive’s definitions of corruption.
On ‘passive corruption’, the Commission found that, in a small number of Member States, the
aspect concerning the refraining of public officials ‘from acting in accordance with [their]
duty’ is not covered by national legislation. On ‘active corruption’, the report mentions that
some of the aspects of the definition provided for by the Directive are missing or not
transposed correctly in some Member States. With regard to misappropriation, the
Commission found that some Member States have provided for a narrower transposition of
the relevant provision or not transposed it altogether. The report also mentions that, with
regard to penalties, the provisions of the Directive have not been correctly transposed in a
quarter of the Member States. As far as limitation periods are concerned, the Commission
31
Report from the Commission to the European Parliament and the Council on the implementation of Directive
(EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to
the Union’s financial interests by means of criminal law, Brussels, 6.9.2021, COM(2021) 536 final.
EN 9 EN
found that, in a few Member States, the limitation period for executing a judgment is shorter
than that provided for by the Directive32
.
In September 2022, the Commission adopted the second implementation report of the
Directive (EU) 2017/137133
. The report focused on three specific issues: i) the
appropriateness of the threshold provided for by the Directive with regard to VAT-related
fraud (EUR 10 million of total damage); ii) the effectiveness of the provisions on limitation
periods; and iii) whether the Directive effectively addresses cases of procurement fraud. In
accordance with Article 18(3) of Directive (EU) 2017/1371, the report was primarily based on
the information that Member States provided to the Commission, including annual statistics
on the criminal offences referred to in the Directive.
• Stakeholder consultations
In 2022 and 2023, the Commission consulted Member States about their existing provisions at
national level regarding the criminalisation of and fight against corruption, by requesting
updated information through two questionnaires, as described in the section below.
The ideas for a draft Directive, and the responses to the questionnaires, were discussed in two
experience-sharing workshops on the fight against corruption. These workshops took place on
14 December 2022 and 14 March 2023 with experts from Member States, including
representatives of the Ministries of Interior, Ministries of Justice, Anti-Corruption Agencies,
police and prosecution. The Commission has also consulted the Union Agencies and bodies in
charge of supporting police and judicial cooperation between Member States, including the
European Union Agency for Criminal Justice Cooperation (Eurojust) and the European Union
Agency for Law Enforcement Cooperation (Europol), as well as the European Public
Prosecutor’s Office (EPPO) and national authorities in charge of prevention and suppression
of corruption.
The Commission consulted and received input from international organisations, including the
UNODC, the OECD, and GRECO. Academic and civil society also provided input, including
Transparency International and the UNCAC Coalition. A plenary meeting of the Local
Research Correspondents on Corruption34
discussed various topics in relation to the proposal
on 13 March 2023.
This proposal was also discussed at the meetings of the Network of contact points on the Rule
of Law on 27 January 2023, the Expert Group on Investor Citizenship and Residence
Schemes on 1 March 2023, the EU FIU Platform on 15 March 2023 and the Commission
Expert Group on EU Criminal Policy on 27 March 2023.
Overall, Member States and stakeholders stressed the need for harmonisation of corruption
offences and sanctions to combat corruption across the EU in a comprehensive and effective
way. Stakeholders indicated that there were frequent cases in which differing definitions
hindered effective cross-border cooperation in the prosecution of corruption offences.
32
The Commission has so far opened infringement proceedings against 17 Member States for incorrect
transposition of the Directive.
33
Second report on the implementation of Directive (EU) 2017/1371 of the European Parliament and of
the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of
criminal law, Brussels, 16.9.2022, COM(2022) 466 final.
34
The Local Research Correspondents on Corruption are a network of civil society and academic experts from
each Member States in the fight against corruption present in each Member State. The network is managed
and funded by the European Commission under its contract HOME/2017/ISFP/CORR/0050 - Consultancy,
technical assistance and support in the field of fight against corruption.
EN 10 EN
Approximating respective definitions of the corruption offences should improve cross border
information exchange and cooperation between law enforcement authorities. Aligning the
level of sanctions imposed for corruption offences would also make enforcement and
deterrence more effective across the EU. A number of Member States submitted that a
mechanical transposition of the offence of illicit enrichment as defined in the UNCAC would
be at odds with the presumption of innocence and the constitutional traditions of the Member
States. A large part of the stakeholders suggested that the proposal should also cover the
prevention of corruption, include additional sanctions, such as the ineligibility to run or hold
public office or tender for public funds, and reflect the importance of specialised anti-
corruption bodies, with sufficient independence, training and resources.
A call for evidence was published for feedback from 20 January 2023 to 17 February 2023,
with a total of 361 contributions received35
. The replies confirmed the vital importance of the
fight against corruption and the need to tackle corruption in the EU at many levels, including
in the EU institutions. While the vast majority of replies called for additional measures, some
also underlined the need to ensure the proper implementation of the current international
framework and to carefully consider new legal or soft law intiatives. Several contributions
stressed that there is a close link between corruption and organised crime. On strengthening
the current framework, most respondents agreed that legislative gaps need to be addressed and
criminalisation should cover criminal conduct beyond the current international legislative
framework with corresponding sanctions. According to some respondents, to efficiently
address the complexity of corruption cases, adequate capacities in terms of resources, training,
special investigation techniques and specialised equipment need to be made available to law
enforcement authorities. Several respondents called for a monitoring and verification tool to
be created with the help of civil society.
• Collection and use of expertise
In line with the commitment made in the EU’s 2021-2025 Organised Crime Strategy, the
European Commission contracted a study to review the EU’s body of law in the fight against
corruption. The study “Strengthening the fight against corruption: assessing the EU legislative
and policy framework”, carried out by a consortium of EY and the RAND Corporation, was
published on 3 January 202336
. It analysed the gaps in the EU legislative framework in the
area of corruption prevention and repression, and provided recommendations for possible EU
measures to address these gaps, by assessing and comparing the impacts of such measures.
The study concluded that closer legislative alignment between EU Member States, flanked by
supporting soft measures, would have the biggest impact on the fight against corruption.
Specifically, the study called for laying down common minimum rules on the definition of
corruption offences and related penalties, alongside common rules to improve investigation
and prosecution of corruption crimes across the Member States (e.g. boosting reporting,
harmonising approaches to immunity and statutes of limitation, as well as to enablers of
corruption). These conclusions have been taken on board in this proposal for a Directive. In
addition, the study also called for measures aimed at ensuring effective prevention of
corruption, including the comprehensive collection of corruption data, and the having in place
of dedicated anti-corruption authorities both at the EU and national levels.
35
The call for evidence and contributions: https://ec.europa.eu/info/law/better-regulation/have-your-
say/initiatives/13674-Fighting-against-corruption-in-the-EU-updated-rules_en.
36
European Commission, Gaglio, I., Guzzon, J., Bartz, K., et al., Strengthening the fight against corruption.
Assessing the EU legislative and policy framework: final report for acceptance, Publications Office, 2023.
EN 11 EN
The Commission also took other data into account, such as the 2022 Eurobarometer surveys
on corruption. The Commission has also relied on relevant documents of the UNODC, the
OECD, the GRECO, and the European Parliamentary Research Service.
As mentioned above, the Commission sent a questionnaire to Member States to identify what
criminal justice data on bribery offences is available. Most Member States collect data on
bribery cases, whereas not all Member States that responded seem to collect data on
convictions of legal persons, the number of pending cases and cases resolved in a different
manner than convictions or acquittals. This indicates that a more harmonised collection of
data on corruption cases could help identify and analyse trends across the EU.
The Commission also asked Member States to provide information on their specialised bodies
working on the prevention of corruption including bodies that have certain repressive powers
(such as levying fines). Most Member States reported one or several bodies that have some
role in the area of prevention of corruption. In many Member States, there are several such
bodies with their own powers, but some Member States have a single body with more
comprehensive powers. Eight Member States did not report on the existence of a specialised
preventive body but rather to bodies that, aside of their other tasks, also deal with prevention.
The Commission also asked Member States to provide information on the powers of their
specialised bodies working on the prevention of corruption. This mapping reveals a wide
variation in the tasks and powers of such bodies, which range from powers related to the
oversight of declarations of assets/interests or gifts to enforcement of lobbying regulation and
of “revolving doors” rules. Some bodies also have enforcement powers such as issuing fines.
Member States were also asked about their bodies specialised in the repression of corruption.
Whereas all Member States allow regular police and prosecutorial bodies to investigate and
prosecute some forms of corruption, almost all Member States also have in place some form
of a specialised police to investigate specific corruption cases, for instance when they are
more serious, complex or relating to a certain category of suspects. When it comes to
prosecution of corruption, most Member States have specialised prosecutors to deal with such
corruption cases.
A second questionnaire, for which input was gathered between 9 January and 8 February
2023, focused on information on the corruption offences, to inform and guide the Commission
in relation to this proposal. Member States were invited to share their national legal provisions
covering these offences, as defined in the UNCAC, the maximum length of imprisonment
linked to such offences, and limitation periods in place. The corruption offences for which
information was asked were bribery in the public and private sector, misappropriation by a
public official or in the private sector, trading in influence, abuse of functions, illicit
enrichment and obstruction of justice. All Member States except for Bulgaria and Denmark
replied to the questionnaire. The results of this questionnaire are summarised below.
Figure 1: Criminalisation of corruption offences in Member States
OFFENCES
NUMBER OF MS WHERE
THE OFFENCE IS
COVERED IN NATIONAL
LAW
NUMBER OF MS WHERE
THE OFFENCE IS NOT
COVERED IN NATIONAL
LAW
Bribery in the public sector 25 0
Bribery in the private sector 25 0
EN 12 EN
Embezzlement, misappropriation and other
diversion of property by a public official
25 0
Embezzlement in the private sector 25 0
Trading in influence 23 2
Abuse of functions 25 0
Illicit enrichment 8 17
Obstruction of justice 25 0
The analysis of what Member States reported shows that Member States have in their national
legislation offences on bribery in the public and private sectors, embezzlement,
misappropriation, obstruction of justice37
and abuse of functions. Nonetheless, definitions
have many variations, in particular when looking at embezzlement or abuse of functions. It
can certainly not be concluded that Member States cover the full scope of corruption offences
as defined in the UNCAC38
. Many Member States report that they criminalised trading in
influence in their national legislation, but some definitions differ significantly from the
relevant UNCAC provision and sometimes the offence is only partly covered. Illicit
enrichment remains sparsely covered, with eight Member States reporting some form of
coverage in national legislation, while a number of others reporting that these aspects were
covered in their money laundering or asset confiscation legislation. Differences in the
definition of offences and the lack of criminalisation of some corrupt conduct causes
problems in cross-border cases and leads to criticism by certain monitoring bodies of how
Member States implement international instruments.
Figure 2: Imprisonment sanctions for corruption offences in Member States
Length of imprisonment in
Member States
EU - range in
years (based on
received
contributions)
EU - average in years
(based on received
contributions)
Median
in years
Bribery in the public sector 0,25 - 15 6.94 - 9.59 6 - 10
Bribery in the private sector 0,25 - 12 5.74 - 6.43 5 - 6
Embezzlement, misappropriation
and other diversion of property
by a public official
0,25 - 15 6.15 - 8.34
–6 - 10
Embezzlement in the private
sector
0,25 - 20 5.57 - 8.08 5 - 8
Trading in influence 0,25 - 10 4.87 - 5.53 5
Abuse of functions 1 - 20 –5.92 - 6.56 4 - 5
Illicit enrichment 0,5 - 15 5.38 - 7.19 3.5 - 6
Obstruction of justice 1 - life 5.58 - 8.67 4,5 - 6
37
Member States tend to criminalise this as a general offence, and not limited to corruption proceedings, as is
the cases in the UNCAC.
38
There are UNCAC implementation review reports available for most Member States, but these are not very
recent.
EN 13 EN
In setting the minimum level of the maximum penalty for the offences in this proposal, the
Commission took into account the nature of the offences, the levels of penalties set in
Member States (see Figure 2), and the levels set by other EU instruments in the area of
substantive criminal law. The penalties proposed in this Directive do not go beyond the
average level of maximum penalties for these offences in Member States. For instance, the
average penalty for bribery in the public sector ranges from around 7 to 9.5 years, while for
bribery in the private sector it ranges from around 5.5 to 6 years. At the same time, there are
also significant differences in Member States’ legislation. For instance, the maximum
penalties for the offence of misappropriation range from 3 months in Spain to 15 years in
Greece39
. Setting a minimum level of the maximum penalty at EU level will therefore
facilitate cross-border police and judicial cooperation and increase deterrence.
Figure 3: Statute of limitations for corruption offences in Member States
Limitation periods in Member
States
EU - range in
years
(based on received
contributions)
EU - average in years
(based on received
contributions)
Median
in years
Bribery in the public sector 3 - 25 10.76 -14.28 10 - 12
Bribery in the private sector 3 - 25 10.26 -11.70 10
Embezzlement, misappropriation
and other diversion of property
by a public official
3 - 25 10.50 - 13.20 10 - 12
Embezzlement in the private
sector
3 - 25 9.42 - 12.19 10
Trading in influence 2 - 25 9.00 – 10.82 8 - 10
Abuse of functions 5 - 25 10.48 – 11.63 9 - 10
Illicit enrichment 5 - 20 10.13 – 11.38 10-11
Obstruction of justice 3 - 25 9.25 – 12.70 10
The responses of Member States concerning limitation periods for corruption offences in
national legislation informed the Commission in its current proposal. For bribery in the public
sector, the average ranges between 11 and 14 years; while for bribery in the private sector, the
average ranges between 10 and 11.5 years. At the same time, there are also considerable
differences in Member States legislation: for bribery in the public and the private sector
minimum and maximum limitation periods range from 3 years in Member States like Czechia
or Lithuania to 25 years in Poland.
The annual Rule of Law reports noted that operational shortcomings can severely obstruct the
investigation and prosecution of corruption cases and undermine the effectiveness of the fight
against corruption. Examples include excessively cumbersome or unclear provisions on lifting
immunities, and short statutes of limitations, which can prevent the finalisation of complex
cases, in particular if combined with other factors contributing to lengthy proceedings. Such
obstacles can be particularly harmful for high-level and complex corruption cases and may
create a risk of impunity, depriving anti-corruption efforts of their deterrent effects.
• Impact assessment
Given that this proposal for a Directive mainly incorporates international obligations and
standards, leaving little margin for alternative courses of action, this proposal is exceptionally
39
For this offence, the average maximum penalty lies between 5 and 7.5 years.
EN 14 EN
presented without an accompanying impact assessment. Moreover, the initiative is not likely
to have significant economic, environmental or social impacts and costs, or those entailing
significant spending. At the same time, it should benefit the economy and society as a whole.
This proposal nevertheless builds on the evidence gathered through external studies and
assessments described in the earlier section and the various stakeholder consultations.
Different approaches were considered using the available evidence:
1. Non-legislative action at EU or national level, including guidelines, exchange of best
practices, training and the development of correspondence tables for corruption-
related offences;
2. A proposal transposing the provisions of the UNCAC;
3. A proposal transposing the provisions of the UNCAC while at the same time going
beyond international obligations in certain aspects, by imposing minimum levels for
the upper limit of sanctions, to facilitate prosecutions and increase awareness on
ethics and integrity among public officials;
4. A proposal defining the various conditions and elements of all possible corruption
offences and requirements for preventive measures such as rules on lobbying and
conflicts of interest.
On the basis of the evidence gathered and previous assessments described above, the
Commission has opted for an approach (option 3 above) that proposes harmonisation in line
with the provisions of the UNCAC, while taking a more ambitous approach and going beyond
international obligations in those areas where action has demonstrable benefits in terms of
cross-border cooperation while respecting national traditions and case-law and ensuring
consistency with EU law.
The legislative proposal is expected to make a positive contribution to the prevention and
detection of, and response to, corruption, notably by approximation of definitions of criminal
offences and alignment of criminal sanctions. Taking measures to prevent corruption, while
prosecuting perpetrators and reducing the criminal phenomenon of corruption is expected to
reduce economic and social costs and have a positive impact on the economy. Ensuring
deterrent penalties for perpetrators is likely to increase the overall level of security and disrupt
organised crime groups’ activities. Increasing harmonisation in this field in principle would
enable the EU to further align with international standards on corruption and reduce the
administrative burden in case of cross-border cooperation between law enforcement and
judicial authorities.
• Regulatory fitness and simplification
For the first time at EU level, the proposal brings together public and private sector corruption
in one legal act. The proposal aims to introduce international obligations and standards in the
EU legislation and updating the legal framework so it can properly respond to the cross-
border phenomenon of corruption. This will help Member States when transposing and
implementing the relevant provisions.
• Fundamental rights
The Union was founded on the values enshrined in Article 2 TEU and it recognises the rights,
freedoms and principles set out in the Charter of Fundamental Rights in accordance with
Article 6(1) TEU. Corruption undermines democratic institutions and EU values, including
the protection of fundamental rights. By tackling corruption, this proposal positively
EN 15 EN
contributes to the protection of fundamental rights, such as the right to fair trial and freedom
of expression.
The fight against corruption and the protection of fundamental rights are complementary, not
conflicting, objectives. Setting out, implementing and applying criminalisation has to be
carried out in full respect of fundamental rights obligations. Any limitation on the exercise of
fundamental rights and freedoms is subject to the conditions set out in Article 52(1) of the
Charter of Fundamental Rights, namely be subject to the principle of proportionality with
respect to the legitimate aim of genuinely meeting objectives of general interest recognised by
the Union or the need to protect the rights and freedoms of others, be provided for by law and
respect the essence of those rights and freedoms.
A variety of fundamental rights and freedoms enshrined in the Charter of Fundamental Rights
have to be taken into account in this respect. Rights which are particularly relevant in relation
to the proposed measures include, but are not limited to, the right to liberty and security, the
protection of personal data, the freedom to choose an occupation and right to engage in work,
the freedom to conduct a business, the right to property, the right to an effective remedy and
to a fair trial, as well as the principle that a person cannot be tried or punished twice for the
same offence (‘ne bis in idem’).
All measures adopted by the Union and its Member States on the criminalisation of corruption
as provided for in this Directive, and the determination of criminal and non-criminal sanctions
thereof, must be subject to the principle of legality and proportionality of criminal offences
and penalties, to the presumption of innocence and to the rights of defence, and should
exclude any forms or arbitrariness.
This proposal respects the principle that criminal offences and penalties must be set out in law
and be proportionate. Fundamental rights in general and the principle of proportionality are
respected in limiting the scope of the offences to what is strictly necessary to allow for the
effective prosecution of acts that pose a particular threat to the stability and security of
societies. The proposal also takes into account the principle of proportionality by providing
for obligations related to aggravating and mitigating circumstances.
The Directive introduces minimum rules on the level of sanctions in accordance with the
principle of proportionality (see in particular Articles 11(1) and 13(1) of the Directive),
having regard to the nature of the offence. Moreover, administrative sanctions imposed are to
be taken into account when sentencing the person for a criminal offence set out in the
Directive (recital 13). The Directive also highlights that, to ensure the effective and
transparent investigation and prosecution of corruption offences, Member States should
establish procedures for the suspension or temporary reassignment of a public official accused
of an offence as referred to in this Directive. In such cases they should bear in mind the
principle of the presumption of innocence and the need to respect right to an effective remedy
(recital 19).
The use of investigative tools, which the Directive seeks to ensure, has to respect fundamental
rights, such as the right to an effective remedy and to a fair trial (Article 47) and the
presumption of innocence and the right of defence (Article 48). The use of such tools, in
accordance with national law, should be targeted and take into account the principle of
proportionality and the nature and seriousness of the offences under investigation and should
respect the right to the protection of personal data. Moreover, when applying the Directive,
Member States must respect their obligations under Union law with regard to procedural
rights of suspects or accused persons in criminal proceedings.
EN 16 EN
The data collected by Member States for the purposes of this Directive is statistical and does
not include any personal data; therefore, Article 8 of the Charter of Fundamental Rights
(‘protection of personal data’) is not affected by the obligation for Member States to collect
and publish data.
4. BUDGETARY IMPLICATIONS
This proposal has no immediate budgetary implications for the Union.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The implementation of the Directive will be monitored by the Commission on the basis of the
information provided by the Member States on the measures taken to bring into force the
laws, regulations and administrative provisions necessary to comply with the Directive. The
Commission shall, two years after the deadline for implementation of this Directive, submit a
report to the European Parliament and to the Council, assessing the extent to which the
Member States have taken the necessary measures to comply with this Directive.
Four years following the deadline for implementation of this Directive, the Commission shall
submit a report to the European Parliament and to the Council, assessing the added value of
this Directive with regard to combating corruption, including the impact on fundamental
rights and freedoms. On the basis of this evaluation, the Commission shall, if necessary,
decide on appropriate follow-up actions.
• Explanatory documents
No explanatory documents on the transposition are considered necessary.
• Detailed explanation of the specific provisions of the proposal
Article 1: Subject matter and scope – This provision sets out the purpose and scope of the
draft Directive, in particular that it establishes minimum rules concerning the definition of
criminal offences and sanctions in the area of corruption, as well as measures to better prevent
and fight corruption.
Article 2: Definitions – This provision establishes definitions for ‘property’ (in relation to the
offences of corruption in Articles 7-13) in line with the body of EU law40
and ‘legal persons’
(in relation to the obligation to establish liability of legal persons in Article 16). The concept
of ‘public official’ is based on the definitions provided for in the 1997 Convention and
Directive (EU) 2017/1371 while making explicit that it also covers persons working in third
countries, international organisations, including the institutions of the European Union, and
national and international courts. This Directive uses a single definition of ‘public official’
which is applicable to all corruption offences set out in it. The concept of ‘high level official’
is defined in relation to aggravating circumstances (Articles 18 and 28), preventive measures
(Article 23) and data collection (Article 25).
40
Article 2(2) of Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018
on combating money laundering by criminal law (OJ L 284, 12.11.2018, p. 22) and Article 3(3) of Directive
(EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of
the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU)
No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the
European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 85).
EN 17 EN
Article 3: Prevention of corruption – This provision aims to underline the need to address the
fight against corruption from a preventive perspective. It aims to explore activities to raise
awareness on the fight against corruption, through education and research programmes,
involving civil society and non-governmental organisations. In order to properly establish
such a preventive system, an adequate risk assessment process is needed, in order to identify
and tackle gaps and sectors most at risk of corruption. As set out in the Communication
accompanying this proposal, the Commission will, with help of the EU network against
corruption, and in close consultation with Member States, map common high-risk areas by
2024. The results will inform the Member States’ national assessment of risks, required by
this proposal.
Article 4: Specialised bodies – This provision requires Member States to put or have in place
bodies in their national legal orders that are specialised in the prevention and repression of
corruption. Such bodies need to be independent, have sufficient human, financial, technical
and technological resources and have the necessary powers for the exercise of their tasks.
They need to be known to the public and exercise their functions with transparency, integrity
and accountability.
Article 5: Resources – This provision aims at ensuring that Member State authorities
responsible for the detection, investigation, prosecution or adjudication of the offences under
the Directive continuously have appropriate human, financial, technical and technological
resources necessary for the effective performance of their duties.
Article 6: Training – This provision obliges Member States to provide specialised anti-
corruption training for competent authorities and their staff and to ensure that there are
adequate resources for this. It also contains obligations concerning relevant training for public
officials.
Articles 7 and 8: Bribery – These provisions define bribery in the public and private sectors
and provide that such conduct is to be punishable as a criminal offence, when committed
intentionally. The definition of the criminal offences covers both active and passive bribery.
Article 9: Misappropriation – This provision defines misappropriation in the public and
private sector and provides that such conduct is to be punishable as a criminal offence, when
committed intentionally.
Article 10: Trading in influence – This provision defines trading in influence and provides
that such conduct is to be punishable as a criminal offence, when committed intentionally.
The provision also specifies that trading in influence is punishable regardless of whether the
influence is exerted or whether it’s supposed exercise leads to results.
Article 11: Abuse of functions – This provision defines abuse of functions in the public and
private sector and provides that conduct or failure to act is to be punishable as a criminal
offence, when committed intentionally.
Article 12: Obstruction of justice – This provision defines obstruction of justice and provides
that such conduct is to be punishable as a criminal offence, when committed intentionally and
in the context of a proceedings concerning an offence as defined in this Directive.
Article 13: Enrichment from corruption offences –Directive (EU) 2018/1673 of the European
Parliament and of the Council of 23 October 2018 on combating money laundering by
EN 18 EN
criminal law41
establishes ground rules on the criminalisation of money laundering and sets
out that corruption should be considered as a predicate offence to money laundering.
However, that Directive does not oblige Member States to criminalise the acquisition,
possession or use of property derived from corruption if a person was involved in the offence
from which the property was derived (this is what is called ‘self-laundering’). This proposal
for a Directive introduces such a targeted requirement, thereby creating the offence of
‘enrichment from corruption’. For this offence, the prosecution would only have to prove a
link between the property and the involvement in corruption, just as they would have to prove
corruption as a predicate offence for the purpose of money laundering.
Article 14: Incitement, aiding and abetting, and attempt – This is a provision applicable to the
criminal offences mentioned above, which requires Member States to criminalise forms of
aiding and abetting, inciting and attempting most of the mentioned offences.
Aiding and abetting a corruption offence may include a large variety of activities that range
from facilitating or providing counselling to the provision of supportive services for the
commission of these acts. In addition, in order to ensure effective deterrence, it is necessary to
criminalise incitement, making punishable the act of soliciting others to carry out the offences
set out in the proposed Directive. Since the definition of some corruption offences, such as
bribery, encompass acts that may qualify as preparatory and do not require that the offender
obtained an actual advantage, this Directive does not require Member States to criminalise
their attempt.
Article 15: Penalties and measures for natural persons – This provision is applicable to all
offences and requires Member States to apply effective, proportionate and dissuasive criminal
penalties.
In addition, the provision establishes the minimum level of the maximum sanction.
Framework Decision 2003/568/JHA already sets a minimum threshold for a maximum
penalty of one to three years for bribery in the private sector. The 1997 Convention on the
fight against corruption requires for bribery of public officials, at least in serious cases,
penalties involving deprivation of liberty which can give rise to extradition.
This proposal sets the minimum maximum penalty between four and six years, depending on
the seriousness of the offence, which is an increase in comparison to the above-mentioned
penalties at EU level for bribery. As explained above, the Commission analysed Member
States’ legislation in preparation of this legislation.
Framework Decision 2003/568/JHA already sets the possibility that a person convicted for
corruption may be temporarily prohibited from carrying on his business activity. This
Directive sets a number of additional sanctions that the competent authorities should be able
to impose upon persons convicted for a corruption offence.
Article 16: Liability of legal persons – This is a provision applicable to all criminal offences
set out in this Directive, which requires Member States to ensure the liability of legal persons,
while excluding that such liability is alternative to that of natural persons. The provision is in
line with Article 10 of the Warsaw Convention.
41
Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating
money laundering by criminal law (OJ L 284, 12.11.2018).
EN 19 EN
This provision follows a standard formula that can be found in other EU legal instruments,
obliging Member States to ensure that legal persons can be held liable for criminal offences
referred to in this Directive committed for their benefit by any person with leading positions,
within the legal person, or by other persons under their control or supervision. It is not
required that such liability be exclusively criminal.
Article 17: Sanctions for legal persons – This provision is applicable to sanctions for legal
persons. It establishes a list of sanctions and measures, which are not necessarily of a criminal
nature, such as the temporary or permanent exclusion from public procurement.
Article 18: Aggravating and mitigating circumstances – This provision first provides a list
circumstances that must be regarded as aggravating circumstances to allow the judiciary to take
into account the broader societal damage perpetrated for example by organised groups or persons
holding positions of public responsibility. It also provides a list of circumstances that must be
regarded as mitigating circumstances, covering for instance cases in which offenders provide
information or collaborate with authorities.
Article 19: Immunity or privileges from investigation and prosecution of corruption offences
– This is a provision applicable to all offences mentioned above, which requires Member
States to take measures to ensure that immunity or privileges from investigation and
prosecution which are granted under national law for the offences referred to in this Directive
can be lifted through an effective and transparent process pre-established by law and that is
concluded in a reasonable timeframe.
Article 20: Jurisdiction – This provision is applicable to all criminal offences set out in this
Directive and requires the existence of jurisdiction grounds for the judicial authorities to
initiate investigations, pursue prosecutions and bring to judgment the perpetrators of the
criminal offences defined in this Directive.
Article 21: Limitation periods for criminal offences – This article lays down provisions on
limitation periods in order to allow the competent authorities to investigate, prosecute and
adjudicate the criminal offences covered by this proposal, as well as the execution of relevant
sanctions, for a sufficient time period. This proposal sets the minimum length of the limitation
periods between eight to fifteen years, depending on the seriousness of the offence.
Article 22: Protection of persons who report offences or assist the investigation – Directive
(EU) 2019/1937 establishes rules and procedures to protect individuals who report
information they acquired in a work-related context on breaches of EU law in key policy
areas. Whistleblowers can provide valuable information to competent authorities, enabling
them to effectively prevent, detect and prosecute corruption. When whistleblowers report
criminal offences referred to in this directive, this provison requires the application of
Directive (EU) 2019/1937. This Article also provides that competent national authorities
ensure that persons who asssist the investigations are given the necessary protection, support
and assistance in the context of criminal proceedings
Article 23: Investigative tools – This provision aims at ensuring that investigative tools which
are provided for in national law for organised crime or other serious crime cases can also be
used in cases of money laundering.
Article 24: Cooperation between Member States’ authorities, the Commission, Europol,
Eurojust, the European Anti-Fraud Office and the European Public Prosecutor’s Office –
This provision envisions the cooperation between the Member States’ authorities, Europol,
Eurojust, the European Public Prosecutor’s Office and the Commission in the fight against
EN 20 EN
corruption. This includes the provision of technical and operational assistance by Europol,
Eurojust, OLAF, the European Public Prosecutor’s Office and the Commission.
Article 25: Commission support to Member States and their competent authorities – This
provision sets out the ways in which the Commission will support Member States and
competent authorities in complying with their obligations under this Directive. As announced
in the accompanying Communication, the Commission will establish an EU network against
corruption, which will rationalise and support existing networks and maximise the exchange
of best practices between national authorities and agencies, civil society and independent
experts.
Article 26: Data collection and statistics – This provision requires Member States to collect
statistical data to monitor the effectiveness of their systems to combat corruption. The
provision lists, in a non-exhaustive manner, the statistical data that should be collected by the
Member States and obliges them to publish such data annually.
Article 27: Replacement of Council Framework Decision 2003/568/JHA and the Convention
on the fight against corruption involving officials of the European Communities or officials of
Member States of the European Union – This provision replaces the current provisions in the
area of the criminalisation of corruption in relation to Member States participating in this
Directive.
Article 28: Amendments to Directive (EU) 2017/1371 – This provision amends Directive (EU)
2017/1371 on the fight against fraud to the Union’s financial interests by means of criminal
law. As a result, the standards set out in Directive (EU) 2017/1371 for fighting corruption
affecting the Union’s financial interests, notably in terms of sanctions with regard to natural
and legal persons, aggravating and mitigating circumstances and limitation periods, are
aligned with those laid down by this Directive.
Article 29: Transposition – The Commission will report on the transposition of this Directive
24 months after the deadline for transposition has passed, which is 18 months after the
adoption of this Directive.
Article 30: Evaluation and reporting – This provision sets out that, starting 12 months after
the deadline for implementation of this Directive, Member States report every two years on
how they implement Articles 3 to 6 and that the Commission will also adopt an evaluation
report.
EN 21 EN
2023/0135 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on combating corruption, replacing Council Framework Decision 2003/568/JHA and the
Convention on the fight against corruption involving officials of the European
Communities or officials of Member States of the European Union and amending
Directive (EU) 2017/1371 of the European Parliament and of the Council
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 82(1) point (d), and Article 83(1) and (2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1) Corruption remains a significant problem at the Union level, threatening the stability
and security of societies, including by enabling organised and other serious crime.
Corruption undermines democratic institutions and universal values on which the
Union is founded, particularly the rule of law, democracy, equality and the protection
of fundamental rights. It jeopardises development, prosperity and the sustainability
and inclusiveness of our economies. In order to effectively prevent and combat
corruption, a comprehensive and multidisciplinary approach is required. The purpose
of this Directive is to tackle corruption by means of criminal law, allowing for better
cross-border cooperation between competent authorities.
(2) Council Framework Decision 2003/568/JHA42
lays down requirements on the
criminalisation of corruption concerning the private sector. The Convention drawn up
on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against
corruption involving officials of the European Communities or officials of Member
States of the European Union43
addresses certain acts of corruption involving officials
of the European Communities or officials of the Member States in general. These
instruments are, however, not sufficiently comprehensive, and the current
criminalisation of corruption varies across Member States hampering a coherent and
effective response across the Union. Enforcement gaps and obstacles in cooperation
between the competent authorities of different Member States have also emerged. This
Directive aims to amend and expand the provisions of those instruments. Since the
amendments to be made are of substantial number and nature, both instruments
42
Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector
(OJ L 192/54, 31.7.2003).
43
Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against
corruption involving officials of the European Communities or officials of Member States of the European
Union (OJ C 195, 25.6.1997, p. 2).
EN 22 EN
should, in the interests of clarity, be replaced in their entirety in relation to the
Member States bound by this Directive.
(3) The existing legal framework should be updated and strengthened to facilitate an
effective fight against corruption across the Union. This Directive aims to criminalise
corruption offences when committed intentionally. Intention and knowledge may be
inferred from objective and factual circumstances. As this Directive provides for
minimum rules, Member States remain free to adopt or maintain more stringent
criminal law rules for corruption offences.
(4) Corruption is a transnational phenomenon that affects all societies and economies.
Measures adopted at national or Union level, should recognise this international
dimension. Union action should therefore take into account the work of the Group of
States against Corruption of the Council of Europe (GRECO), the Organisation for
Economic Cooperation and Development (OECD) and the United Nations Office
against Drugs and Crime (UNODC).
(5) To root out corruption, both preventive and repressive mechanisms are needed.
Member States are encouraged to take a wide range of preventive, legislative and
cooperative measures as part of the fight against corruption. Whereas corruption is
first and foremost a crime and specific acts of corruption are defined in national and
international law, failings in integrity, undisclosed conflicts of interests or serious
breaches of ethical rules can become corrupt activities if left unaddressed. The
prevention of corruption mitigates the need for criminal repression and has wider
benefits in promoting public trust and managing the conduct of public officials.
Effective anti-corruption approaches often build on measures to enhance transparency,
ethics and integrity, as well as by regulating in areas such as conflict of interest,
lobbying and revolving doors. Public bodies should seek the highest standards of
integrity, transparency and independence as an important part of tackling corruption
more broadly.
(6) Member States should have in place bodies or units specialised in the repression and
specialised in the prevention of corruption. Member States may decide to entrust a
body with a combination of preventive and law enforcement functions. In order to
ensure that these bodies operate effectively, they should meet a number of conditions,
including having the independence, resources and powers that are necessary to ensure
the proper administration of their tasks.
(7) The EU is a party to the United Nations Convention Against Corruption (UNCAC),
which is the most comprehensive international legal instrument to combat corruption,
combining measures to prevent and fight corruption. It requires that parties to the
Convention take legislative and other measures to establish criminal offences for
bribery, misappropriation and money laundering and consider taking legislative or
other measures to criminalise other acts (such as abuse of functions, trading in
influence and illict enrichment). In line with the commitments contained in the
Political Declaration adopted at the 2021 UN General Assembly Special Session
against Corruption, the European Union should, to the extent possible, go beyond the
minimum requirements of UNCAC and lay down additional measures for preventing
and combating corruption. This Directive draws on the observations and best practices
emanating from the Mechanism for the Review of Implementation of the UNCAC.
(8) Taking account of the evolution of corruption threats and the legal obligations on the
Union and Member States under international law, as well as the development of
EN 23 EN
national legal frameworks, the definition of corruption should be further approximated
in all Member States so that it covers corrupt conduct more comprehensively.
(9) To avoid impunity for corruption offences in the public sector, the scope of application
needs to be well defined. First of all, the concept of public official should also cover
persons working in international organisations, including the institutions, agencies and
bodies of the European Union and international courts. This should, amongst other
things, encompass persons acting as members of collegial bodies responsible for
deciding on the guilt of an accused person in the framework of a trial, as well as
persons who by virtue of an arbitration agreement are called upon to render a legally
binding decision in disputes submitted by the parties to the arbitration agreement.
Secondly, many entities or persons nowadays exercise public functions without
holding a formal office. Therefore, the concept of public official is defined to cover all
relevant officials, whether appointed, elected or employed on the basis of a contract,
holding a formal administrative or judicial office, as well as all persons providing a
service, which have been vested with public authority or who are subject to the control
or supervision of public authorities in relation to the carrying out of such a service,
even if they do not hold formal office. For the purposes of this Directive, the definition
should cover persons working in state-owned and state-controlled enterprises, as well
as in asset management foundations and privately-owned companies performing
public service functions and the legal persons established or maintained by them. Any
person holding a legislative office should be treated as a public official for the
purposes of this Directive.
(10) It is necessary to strenghten the legal framework to combat bribery and to provide law
enforcement and prosecution with the necessary tools. In bribery of public officials,
there are two sides to distinguish. Active bribery exists when a person promises, offers
or gives an advantage of any kind to influence a public official. Passive bribery exists
when the public official requests or receives such advantagesin order to act or to
refrain from acting in a certain way. This Directive should also set minimum rules on
bribery and other forms of corruption in the private sector, where the immediate
victims include companies that are impacted unfairly and where free competition is
diminished by each bribe offered or accepted.
(11) In order to ensure that public officials do not intentionally use funds for purposes other
than they were intended, it is necessary to lay down rules on the offence of
misappropriation by public officials of property whose management is entrusted to
them. In order to take a comprehensive approach to the fight against corruption, this
Directive should also cover misappropriation in the private sector. In order for
misappropriation to be criminal, it should lead to an advantage for the public official
or a third party.
(12) Trading in influence, arising from the corrupt behaviour of those persons who are or
claim to be in the proximity of power and try to exchange promises of exerting
influence over decision-making processes in return for undue advantages should also
be defined as a criminal offence. The constituent elements of the criminal offence
should be that the instigator provides, or promises to provide the influence peddler
with an undue advantage for exerting unlawful influence over an outcome or a process
that is subject to decision-making. When carried out intentionally, this behaviour
should be considered a criminal offence irrespective of whether the influence was
exerted and whether or not the claimed influence leads to the outcome intended. This
offence should not cover the legitimate exercise of acknowledged forms of interest
representation which may seek to legitimately influence public decision-making but do
EN 24 EN
not entail an undue exchange of advantages. Such forms of interest representation,
such as advocacy for example, are often carried out in a regulated environment
precisely for avoiding that a lack of transparency may allow them to become gateways
to corruption. Having in place well-functioning additional rules on disclosing conflicts
of interest, on ‘revolving-doors’ or on the financing of political parties, can also help
to avoid grey areas and prevent undue influence.
(13) Moreover, it is necessary to define the offence of abuse of functions in the public
sector as a failure to perform an act by a public official, in violation of laws, to obtain
an undue advantage. In order to comprehensively fight corruption, this Directive
should also cover abuse of functions in the private sector.
(14) Obstruction of justice is a criminal offence committed in support of corruption. It is
therefore necessary to lay down a criminal offence for the obstruction of justice, which
entails the exercise of physical force, threats or intimidation, or the inducement of
false testimony or evidence. Actions to interfere in the giving of testimony or
production of evidence, or with the exercise of official duties by judicial or law
enforcement officials should also be covered. In line with the UNCAC, this Directive
only applies to the obstruction of justice concerning proceedings relating to a
corruption offence.
(15) Corruption feeds off the motivation for undue economic and other advantages. Ìn
order to reduce the incentive for individuals and criminal organisations to commit new
criminal acts and deter individuals from consenting to becoming fake property owners
enrichment by corruption offences should be criminalised. This should, in turn,
complicate the concealment of illicitly acquired property and reduce the spread of
corruption as well as the damage done to society. Transparency helps competent
authorities to detect possible illicit enrichment. For example, in jurisdictions where
public officials are required to declare their assets at regular intervals, including when
taking up and completing duties, authorities can assess whether the declared assets
correspond to declared incomes.
(16) The criminal offence of enrichment builds upon the rules on the criminal offence of
money laundering laid down in Directive (EU) 2018/1673 of the European Parliament
and of the Council44
. It is meant to address those cases where the judiciary considers
that the corruption offence or offences cannot be proven. Like the predicate offence in
money laundering, the burden of proof is of a different nature. This means that in
criminal proceedings regarding the criminal offence of enrichment, when considering
whether property is derived from any kind of criminal involvement in a corruption
offence and whether the person had knowledge of that, the specific circumstances of
each case should be taken into account, such as the fact that the value of the property
is disproportionate to the lawful income of the accused person and that the criminal
activity and acquisition of property occurred within the same time frame. It should not
be necessary to establish knowledge of all the factual elements or all circumstances
relating to the criminal involvement, including the identity of the perpetrator. When a
person is convicted of a criminal offence as defined in this Directive, the competent
authorities can recover the illicitly obtained property on the basis of Directive
2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the
44
Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating
money laundering by criminal law (OJ L 284, 12.11.2018, p. 22).
EN 25 EN
freezing and confiscation of instrumentalities and proceeds of crime in the European
Union45
.
(17) In order to deter corruption throughout the Union, Member States should lay down
minimum types and levels of sanctions when the criminal offences defined in this
Directive are committed. The maximum levels of imprisonment and other penalties
should be sufficiently high to deter possible offenders and to reflect the harmfulness of
corruption and the priority that the competent authorities should give to combat such
offences. At the same time, these levels should be proportionate to the seriousness of
each corruption offence and be coherent with levels of criminal sanctions set in Union
and national law. Member States should ensure that sanctions are enforced to the
extent necessary in order to deter the commission of those offences. Where the
Member States consider the eventuality of suspended or conditional sentences, early
release, parole or pardoning of persons convicted of any of the offences referred to in
this Directive, judicial authorities should be able to take into account the seriousness
of the criminal offences concerned among other factors.
(18) This Directive does not affect the proper and effective application of disciplinary
measures or penalties other than those of a criminal nature, such as administrative
sanctions. Sanctions that cannot be equated to criminal sanctions, which are imposed
on the same person for the same conduct, can be taken into account when sentencing
that person for a criminal offence defined by this Directive. For sanctions of criminal
nature, the principle of prohibition of being tried or punished twice in criminal
proceedings for the same criminal offence (ne bis in idem) should be fully respected.
(19) The competent authorities should be able to impose, in addition or as an alternative to
imprisonment, sanctions or measures, that are not necessarily of a criminal nature,
such as the temporary or permanent disqualification from holding public office or the
exclusion from public procurement. Such measures have a general dissuasive effect
and may reduce the recidivism of convicted offenders. Member States should also
consider establishing procedures for the suspension or temporary reassignment of a
public official accused of a criminal offence as referred to in this Directive, bearing in
mind the need to respect the principle of the presumption of innocence and the right to
an effective remedy.
(20) Legal persons should not be able to avoid responsibility by using intermediaries,
including related legal persons, to offer, promise or give a bribe to a public official on
its behalf. Moreover, fines for legal persons should be calculated considering the
worldwide turnover of all legal entities related to the offender, including parent
entities, subsidiary entities, linked trusts, or similar or comparable legal entities.
(21) Where the offence is committed by a criminal organisation within the meaning of
Council Framework Decision 2008/841/JHA46
or where the perpetrator abused their
position to enable corruption, Member States should provide for aggravating
circumstances in accordance with the applicable rules established by their legal
systems. Whilst subject to judicial discretion, these aggravating circumstances should
allow the judiciary to take into account the broader societal damage caused, for
example by corruption perpetrated by organised groups, political parties, or persons
45
Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and
confiscation of instrumentalities and proceeds of crime in the European Union (OJ L 127/39, 29.4.2014, p.
39).
46
Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime, (OJ L
300, 11.11.2008, p. 42).
EN 26 EN
holding positions of public responsibility. Member States should not be obliged to
provide for any of the aggravating circumstances in this Directive when those
circumstances are punishable as separate criminal offences with more severe
sanctions.
(22) Corruption for the benefit of a third country has a particularly detrimental impact on
democratic institutions and political life of the Member States and the Union. Member
States should thus provide for an aggravating circumstance to cover such situations.
Such an aggravating circumstance should cover corruption offences, such as bribery or
trading in influence, that are committed with a view to create an advantage for a third
country, such as altering the public decision-making in order to come to a decision that
is favourable to the third country.
(23) Member States should ensure that mitigating circumstances are laid down in national
legislation in relation to the offences covered by this Directive. Subject to judicial
discretion, these circumstances should cover those cases in which offenders provide
information or otherwise collaborate with authorities. Similarly, where legal persons
have implemented effective internal controls, ethics, and compliance programmes, it
should be possible to consider these actions as a mitigating circumstance. Lower
sanctions should also be considered where, upon discovery of an offence, a legal
person swiftly discloses information and takes remedial measures. In any case, it
should remain within the discretion of the judge or the court to determine the actual
amount of the sanction, taking into account all the circumstances of the individual
case.
(24) Members of Parliament and other public officials may have immunity or legal
protection from investigation or prosecution, which helps strengthen their
independence by protecting them against unfounded complaints, in particular with
regard to opinions expressed or votes cast in the course of performing their functions.
However, such immunities may hamper effective investigation and prosecution of
corruption offences, including by affecting the detection and investigation or
prosecution of other persons who do not enjoy immunity and may have participated in
the offence. Moreover, the application of immunity without appropriate procedures to
lift immunity in cases where there are grounds to suspect participation in criminal acts
undermines the credibility of public institutions. There should therefore be an
appropriate balance between, on the one hand, any immunities or jurisdictional
privileges accorded to public officials for acts performed in the exercise of their
functions, and on the other hand, the possibility of effectively investigating,
prosecuting and adjudicating corruption offences.
(25) In order to increase trust in prosecution services whilst reducing the perception of
corruption in Member States, discretionary powers under domestic law not to the
prosecute persons for criminal offences referred to in this Directive on opportunity
grounds should be exercised in accordance with clear rules and criteria and guarantee,
with appropriate internal consultation, as well as the aim of deterring the commission
of corruption offences and the effectiveness of the judicial process.
(26) Given the mobility of perpetrators and proceeds stemming from criminal activities, as
well as the complex cross-border investigations required to combat corruption, all
Member States should establish their jurisdiction in order to enable the competent
authorities to investigate and prosecute this crime in a sufficient wide range of cases.
including when the offence is committed in whole or in part in its territory. As part of
that obligation, Member States should ensure that jurisdiction is also established in
EN 27 EN
situations where an offence is committed by means of information system used on
their territory, whether or not that technology is based in their territory.
(27) In order to ensure that the competent authorities have sufficient time to conduct
complex investigations and prosecutions, this Directive provides for a minimum
limitation period that enables the detection, investigation, prosecution and judicial
decision of corruption offences for a sufficient period of time after the commission of
such offences, without affecting those Member States which do not set limitation
periods for investigation, prosecution and enforcement.
(28) Corruption offences are a difficult category of crime to identify and investigate, as
they mostly occur as part of a conspiracy between two or more willing parties and lack
an immediate and obvious victim who could complain. Thus, a significant proportion
of corruption crime remains undetected, and the criminal parties are able to benefit
from the proceeds of their corruption. The longer it takes to detect a corruption
offence, the more difficult it is to uncover evidence. Therefore, it should be ensured
that law enforcement and prosecutors have appropriate investigative tools to gather
relevant evidence of corruption offences which often affect more than one Member
State. Furthermore, Member States should allocate sufficient training, in close
coordination with the European Union Agency for Law Enforcement Training
(CEPOL), also on the use investigative tools to successfully carry out proceedings and
the identification and quantification of proceeds of corruption in the context of
freezing and confiscation. In addition, this Directive facilitates the gathering of
information and evidence by setting out mitigating circumstances for offenders that
help the authorities.
(29) Persons reporting information to competent authorities concerning past, ongoing or
planned instances of corruption, which they have acquired in the context of their work-
related activities, risk suffering retaliation in that context. Such whistleblowers’
reports can strengthen enforcement by enabling the competent authorities to
effectively prevent, detect and prosecute corruption. Given the public interest in
shielding public and private institutions from such acts, and in enhancing
transparency, good governance and accountability, it is necessary to ensure that
effective arrangements are in place to enable whistleblowers to use confidential
channels, to alert competent authorities and to protect them from retaliation. Directive
(EU) 2019/1937 of the European Parliament and of the Council47
applies to reports of
breaches affecting the financial interests of the Union as referred to in Article 325 of
the Treaty and as further specified in relevant Union measures and thus applies to the
reporting of all criminal offences falling within the scope of Directive (EU) 2017/1371
of the European Parliament and of the Council48
. As regards the criminal offences
referred to in this Directive, Directive (EU) 2019/1937 should be applicable to the
reporting of such offences and to the protection of persons reporting such offences
under the conditions established therein. Beyond the obligations flowing from
Directive (EU) 2019/1937, competent national authorities should ensure that persons
providing evidence or otherwise cooperating with criminal investigations are given the
necessary protection, support and assistance in the context of criminal proceedings.
47
Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the
protection of persons who report breaches of Union law (OJ L 305 26.11.2019).
48
Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the protection of
the Union's financial interests by means of criminal law (OJ 198 L, 28.7.2017, p. 29).
EN 28 EN
(30) Independent civil society organisations are crucial for the well-functioning of our
democracies, and play a key role in upholding the common values on which the EU is
founded. They act as essential watchdogs, drawing attention to threats to the rule of
law, contributing to making those in powers accountable, and ensuring respect for
fundamental rights. Member States should promote the participation of civil society in
anti-corruption activities.
(31) Media pluralism and media freedom are key enablers for the rule of law, democratic
accountability, equality and the fight against corruption. Independent and pluralistic
media, in particular investigative journalism, play an important role in the scrutiny of
public affairs, detecting possible corruption and integrity breaches, raising awareness
and promoting integrity. Member States have an obligation to guarantee an enabling
environment for journalists, protect their safety and pro-actively promote media
freedom and media pluralism. The Commission’s Recommendation on the protection,
safety and empowerment of journalists49
, as well as the proposal for a Directive50
and
a Commission Recommendation51
on protecting persons who engage in public
participation from manifestly unfounded or abusive court proceedings (‘Strategic
lawsuits against public participation’) include important safeguards and standards to
ensure that journalists, human rights defenders and others can carry out their role
unhindered.
(32) Member States should collect and publish data concerning the application of this
Directive, which can be analysed and used by the Commission in the context of the
monitoring, implementation and evaluation of the Directive, as well as the application
of any of the Rule of Law tools, such as the annual Rule of Law report.
(33) To combat corruption effectively, efficient exchange of information between
competent authorities responsible for the prevention, detection, investigation or
prosecution of corruption offences is crucial. Member States should ensure that
information is exchanged in an effective and timely manner in accordance with
national and Union law. This Directive, which aims to lay down common definitions
of corruption offences, should serve as a benchmark for information exchange and
cooperation between the competent national authorities under Directives (EU)
XX/202352
, (EU) 2019/115353
, (EU) 2016/68154
of the European Parliament and of the
49
Commission Recommendation of 16 September 2021 on ensuring the protection, safety and empowerment of
journalists and other media professionals in the European Union, C(2021)6650 final.
50
Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in
public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against
public participation”), COM/2022/177 final.
51
Commission Recommendation on protecting journalists and human rights defenders who engage in public
participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public
participation"), C(2022) 2428 final.
52
See Proposal for a Directive of the European Parliament and of the Council on information exchange between
law enforcement authorities of Member States, repealing Council Framework Decision 2006/960/JHA,
COM/2021/782 final.
53
Directive (EU) 2019/1153 of the European Parliament and of the Council of 20 June 2019 laying down rules
facilitating the use of financial and other information for the prevention, detection, investigation or
prosecution of certain criminal offences, and repealing Council Decision 2000/642/JHA OJ L 186, 11.7.2019,
p. 122.
54
Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of
passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist
offences and serious crime (OJ L 119, 4.5.2016, p. 132), Annex II, point 6.
EN 29 EN
Council, Regulations (EU) 2018/124055
, (EU) 2018/186256
and (EU) 603/201357
of the
European Parliament and of the Council, Council Decision 2008/633/JHA58
.
(34) Corruption is a cross-cutting issue, while vulnerabilities differ from sector to sector, as
well as the most adequate way to tackle them. Member States should therefore
regularly perform an assessment to identify the sectors most at risk of corruption and
develop risk management plans to address the main risks in the sectors identified,
including by organising, at least once a year, awareness-raising actions adapted to the
specificities of the sectors identified. Member States that have broad national anti-
corruption strategies in place, may also choose to address their risk assessments and
risk management plans therein, as long as the risks are assessed and the measures are
reviewed regularly. For instance, investor residence schemes are among the sectors
thatbear high risks for corruption59
. and should therefore be included in the
assessments of the sectors most at risk of corruption and the trainings to be conducted
by Member States as provided for by this Directive.
(35) To provide for an equivalent level of protection between the Union’s and the national
financial interests, the provisions of Directive (EU) 2017/137160
should be aligned
with those of this Directive. To this end, the rules applicable to criminal offences
affecting the Union’s financial interests as regards sanctions, aggravating and
mitigating circumstances and limitation periods should be equivalent to those laid
down by this Directive.
(36) The implementation of this Directive should ensure a level of protection of the
Union’s financial interests which is equivalent to the protection of the national
financial interests.
55
Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018
establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations
(EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ L 236,
19.9.2018, p. 1), Annex, point 7.
56
Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the
establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation
and judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and
repealing Regulation (EC) No 1986/2006 of the European Parliament and of the Council and Commission
Decision 2010/261/EU, (OJ L 312, 7.12.2018, p. 56). Reference to corruption is made indirectly in the SIS II
Council Decision by delimiting its scope with a reference to the European Arrest Warrant, for instance in
Article 8.
57
Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the
establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU)
No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for
examining an application for international protection lodged in one of the Member States by a third-country
national or a stateless person and on requests for the comparison with Eurodac data by Member States' law
enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No
1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the
area of freedom, security and justice (OJ L 180, 29.6.2013, p. 1).
58
Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information
System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention,
detection and investigation of terrorist offences and of other serious criminal offences (OJ L 218, 13.8.2008,
p. 129). Reference to corruption is made indirectly in the VIS Council Decision for law enforcement by
delimiting its scope with a reference to the European Arrest Warrant in recital 6.
59
Report from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions, Investor Citizenship and Residence Schemes in the European
Union, 23 January 2019, COM(2019) 12 final.
60
Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the protection of
the Union's financial interests by means of criminal law, OJ 198 L, 28.7.2017, p. 29.
EN 30 EN
(37) Since the objective of this Directive, namely to subject corruption in all Member
States to effective, proportionate and dissuasive criminal penalties, cannot be
sufficiently achieved by Member States but can rather, by reason of the scale and
effects of this Directive, be better achieved at Union level, the Union may adopt
measures, in accordance with the principle of subsidiarity as set out in Article 5 of the
Treaty on European Union. In accordance with the principle of proportionality, as set
out in that Article, this Directive does not go beyond what is necessary to achieve that
objective.
(38) The intended dissuasive effect of the application of criminal law sanctions requires
particular caution with regard to fundamental rights. This Directive respects
fundamental rights and observes the principles recognised in particular by the Charter
of Fundamental Rights of the European Union (the ‘Charter’) and in particular the
right to liberty and security, the protection of personal data, the freedom to choose an
occupation and right to engage in work, the freedom to conduct a business, the right to
property, the right to an effective remedy and to a fair trial, the presumption of
innocence and the right of defence, the principles of the legality and proportionality of
criminal offences and sanctions, as well as the principle of ne bis in idem.
(39) [In accordance with Article 3 of Protocol (No 21) on the position of the United
Kingdom and Ireland in respect of the area of freedom, security and justice, annexed
to the Treaty on the European Union and to the Treaty on the Functioning of the
European Union, Ireland has notified its wish to take part in the adoption and
application of this Directive.
AND/OR
(40) In accordance with Articles 1 and 2 of Protocol (No 21) on the position of the United
Kingdom and Ireland in respect of the area of freedom, security and justice, annexed
to the Treaty on European Union and to the Treaty on the Functioning of the European
Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in
the adoption and application of this Directive and are not bound by it or subject to its
application.]
(41) In accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark
annexed to the Treaty on the European Union and to the Treaty on the Functioning of
the European Union, Denmark is not taking part in the adoption of this Directive and
is not bound by it or subject to its application. Council Framework Decision
2003/568/JHA shall continue to be binding upon and applicable to Denmark.
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Subject matter and scope
This Directive establishes minimum rules concerning the definition of criminal offences and
sanctions in the area of corruption, as well as measures to better prevent and fight corruption.
Article 2
Definitions
For the purposes of this Directive, the following definitions apply:
EN 31 EN
1. ‘prevention of corruption’ refers to the detection and elimination of the causes of and
conditions for corruption, through development and implementation of a system of
appropriate measures, as well as deterrence against corruption-related acts.
2. ‘property’ means funds or assets of any kind, whether corporeal or incorporeal,
movable or immovable, tangible or intangible, and legal documents or instruments in
any form, including electronic or digital, evidencing title to, or an interest in, such
assets.
3. ‘public official’ means:
(a) a Union official or a national official of a Member State or of a third country,
(b) any other person assigned and exercising a public service function in Member
States or third countries, for an international organisation or for an international
court.
4. ‘Union official’ means a person who is:
(a) a member of an institution, body, office or agency of the Union and the staff of
such bodies shall be assimilated to Union officials.
(b) an official or other servant engaged under contract by the Union within the
meaning of the Staff Regulations of Officials and the Conditions of
Employment of Other Servants of the European Union laid down in Council
Regulation (EEC, Euratom, ECSC) No 259/68 (the ‘Staff Regulations’);
(c) seconded to the Union by a Member State or by any public or private body,
who carries out functions equivalent to those performed by Union officials or
other servants.
5. ‘national official’ means any person holding an executive, administrative, or judicial
office at national, regional or local level, whether appointed or elected, whether
permanent or temporary, whether paid or unpaid, irrespective of that person’s
seniority. Any person holding a legislative office at national, regional or local level is
considered a national official for the purpose of this Directive.
6. ‘breach of duty’ covers as a minimum any disloyal behaviour constituting a breach of
a statutory duty, or, as the case may be, a breach of professional regulations or
instructions, which apply within the business of a person who in any capacity directs
or works for a private sector entity.
7. ‘legal person’ means any entity having legal personality under the applicable national
law, except for States or public bodies in the exercise of State authority and for
public international organisations.
8. ‘high level officials’ are heads of state, heads of central and regional government,
members of central and regional government, as well as other political appointees
who hold a high level public office such as deputy ministers, state secretaries, heads
and members of a minister’s private office, and senior political officials, as well as
members of parliamentary chambers, members of highest Courts, such as
Constitutional and Supreme Courts, and members of Supreme Audit Institutions.
Article 3
Prevention of corruption
1. Member States shall take appropriate action, such as information and awareness-
raising campaigns and research and education programmes, to raise public awareness
EN 32 EN
on the harmfulness of corruption and reduce the overall commission of corruption
offences as well as the risk of corruption.
2. Member States shall take measures to ensure the highest degree of transparency and
accountability in public administration and public decision-making with a view to
prevent corruption.
3. Member States shall take measures to ensure that key preventive tools such as an
open access to information of public interest, effective rules for the disclosure and
management of conflicts of interests in the public sector, effective rules for the
disclosure and verification of assets of public officials and effective rules regulating
the interaction between the private and the public sector are in place.
4. Member States shall adopt comprehensive and up-to-date measures to prevent
corruption in both the public and private sectors, adapted to the specific risks of an
area of activity. Such measures shall at least include actions to strengthen integrity
and to prevent opportunities for corruption among:
(a) high level officials;
(b) members of law enforcement and the judiciary, including measures relating to
their appointment and conduct, and by ensuring adequate remuneration and
equitable pay scales.
5. Member States shall regularly perform an assessment to identify the sectors most at
risk of corruption.
Following that assessment, Member States shall:
(a) organise, at least once a year, awareness-raising actions adapted to the
specificities of the sectors identified, including on ethics; and
(b) develop plans to address the main risks in the sectors identified.
6. Where appropriate, Member States shall take measures to promote the participation
of civil society, non-governmental organizations and community-based organizations
in anti-corruption activities.
Article 4
Specialised bodies
1. Member States shall take the necessary measures to ensure that one or several
bodies, or organisation units specialised in the prevention of corruption is or are in
place.
2. Member States shall take the necessary measures to ensure that one or several
bodies, or organisational units specialised in the repression of corruption is or are in
place.
3. Member States shall take the necessary measures to ensure that the body or bodies,
or an organisation unit or units as referred to in paragraph 1 and 2:
(a) are functionally independent from the government and have a sufficient
number of qualified staff and the financial, technical and technological
resources, as well as the powers and tools necessary to ensure the proper
administration of their tasks;
(b) are known to the public;
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(c) provide public access to relevant information on the exercise of their activities,
with due regard for the protection of personal data and the confidentiality of
investigations;
(d) operate and take decisions in accordance with transparent procedures
established by law, with the effect of ensuring integrity and accountability.
Article 5
Resources
Member States shall take the necessary measures to ensure that national authorities competent
for the detection, investigation, prosecution or adjudication of the criminal offences referred
to in this Directive are continually provided with an adequate number of qualified staff and
the financial, technical and technological resources necessary for the effective performance of
their functions related to the implementation of this Directive.
Article 6
Training
1. Each Member State shall take the necessary measures to ensure adequate resources
for and the provision of training for its national officials to be able to identify
different forms of corruption and corruption risks that may occur in the exercise of
their duties and to react in a timely and appropriate manner to any suspicious
activity.
2. Each Member State shall take the necessary measures to ensure adequate resources
for and the provision of specialised anti-corruption training at regular intervals for its
members of law enforcement, the judiciary and the staff of authorities tasked with
criminal investigations and proceedings of offences falling within the scope of this
Directive.
Article 7
Bribery in the public sector
Member States shall take the necessary measures to ensure that the following conduct is
punishable as a criminal offence, when committed intentionally:
(a) the promise, offer or giving, directly or through an intermediary, of an advantage of
any kind to a public official for that official or for a third party in order for the public
official to act or refrain from acting in accordance with his duty or in the exercise of
that official’s functions (active bribery);
(b) the request or receipt by a public official, directly or through an intermediary, of an
advantage of any kind or the promise of such an advantage for that official or for a
third party, in order for the public official to act or to refrain from acting in
accordance with his duty or in the exercise of that official’s functions (passive
bribery).
Article 8
Bribery in the private sector
Member States shall take the necessary measures to ensure that the following conduct shall be
punishable as a criminal offence, when committed intentionally and in the course of
economic, financial, business or commercial activities:
EN 34 EN
(a) the promise, offer or giving, directly or through an intermediary, an undue advantage
of any kind to a person who in any capacity directs or works for a private-sector
entity, for that person or for a third party, in order for that person to act or to refrain
from acting, in breach of that person’s duties (active bribery);
(b) the request or receipt by a person, directly or through an intermediary, of an undue
advantage of any kind or the promise of such an advantage, for that person or for a
third party, while in any capacity directing or working for a private-sector entity, to
act or to refrain from acting, in breach of that person’s duties (passive bribery).
Article 9
Misappropriation
Member States shall take the necessary measures to ensure that the following conduct is
punishable as a criminal offence, when committed intentionally:
(a) the committing, disbursing, appropriation or use by a public official of property whose
management is directly or indirectly entrusted to him contrary to the purpose for
which it was intended;
(b) the committing, disbursing, appropriation or use, in the course of economic, financial,
business or commercial activities, by a person who directs or works, in any capacity,
in a private sector entity, of any property whose management is directly or indirectly
entrusted to him contrary to the purpose for which it was intended.
Article 10
Trading in influence
1. Member States shall take the necessary measures to ensure that the following
conduct is punishable as a criminal offence, when committed intentionally:
(a) the promise, offer or giving, directly or through an intermediary, of an undue
advantage of any kind to a person or a third party in order for that person to
exert real or supposed influence with a view to obtaining an undue advantage
from a public official;
(b) the request or receipt, directly or through an intermediary, of an undue
advantage of any kind or the promise of such an advantage to a person or a
third party in order for that person to exert real or supposed influence with a
view to obtaining an undue advantage from a public official.
2. In order for the conduct referred to in paragraph 1 to be punishable as a criminal
offence, it shall be irrelevant whether or not the influence is exerted or whether or
not the supposed influence leads to the intended results.
Article 11
Abuse of functions
Member States shall take the necessary measures to ensure that the following conduct is
punishable as a criminal offence, when committed intentionally:
1. the performance of or failure to perform an act, in violation of laws, by a public
official in the exercise of his functions for the purpose of obtaining an undue
advantage for that official or for a third party;
EN 35 EN
2. the performance of or failure to perform an act, in breach of duties, by a person who
in any capacity directs or works for a private-sector entity in the course of economic,
financial, business or commercial activities for the purpose of obtaining an undue
advantage for that person or for a third party.
Article 12
Obstruction of justice
Member States shall take the necessary measures to ensure that the following conduct is
punishable as a criminal offence, when committed intentionally:
1. the use, directly or through an intermediary, of physical force, threats or intimidation
or the promise, offering or giving of an advantage to induce false testimony or to
interfere in the giving of testimony or the production of evidence in a proceeding
concerning any of the offences referred to in Article 7 to 11, 13 and 14;
2. the use, directly or through an intermediary, of physical force, threats or intimidation
to interfere in the exercise of official duties by a person holding a judicial office or a
member of law enforcement concerning any of the offences referred to in Article 7 to
11, 13 and 14.
Article 13
Enrichment from corruption offences
Member States shall take the necessary measures to ensure that the intentional acquisition,
possession or use by a public official of property that that official knows is derived from the
commission of any of the offences set out in Articles 7 to 12 and 14, is punishable as a
criminal offence, irrespective of whether that official was involved in the commission of that
offence.
Article 14
Incitement, aiding and abetting, and attempt
1. Member States shall take the necessary measures to ensure that inciting any of the
offences referred to in Articles 7 to 13 is punishable as a criminal offence.
2. Member States shall take the necessary measures to ensure that aiding and abetting
any of the offences referred to in Articles 7 to 13 is punishable as a criminal offence.
3. Member States shall take the necessary measures to ensure that attempting any of the
offences referred to in Articles 9 and 11 to 13 is punishable as a criminal offence.
Article 15
Penalties and measures for natural persons
1. Member States shall take the necessary measures to ensure that the criminal offences
referred to in Articles 7 to 14 are punishable by effective, proportionate and
dissuasive criminal penalties.
2. Member States shall take the necessary measures to ensure that:
(a) the criminal offences referred to in Article 7 and 12 are punishable by a
maximum term of imprisonment of at least six years;
EN 36 EN
(b) the criminal offences referred to in Article 8 to 11 are punishable by a maximum
term of imprisonment of at least five years; and
(c) the criminal offence referred to in Article 13 is punishable by a maximum term of
imprisonment of at least four years.
3. Where a criminal offence referred to in Article 9 involves damage of less than EUR
10 000 or an advantage of less than EUR 10 000, Member States may provide for
sanctions other than criminal sanctions.
4. Without prejudice to paragraphs 1 to 3, Member States shall take the necessary
measures to ensure that natural persons who have been convicted of committing one
of the criminal offences referred to in Article 7 to 14 may be subject to sanctions or
measures imposed by a competent authority and that are not necessarily of a criminal
nature, including:
(a) fines;
(b) the removal, suspension and reassignment from a public office;
(c) the disqualification from
(i) holding a public office;
(ii) exercising a public service function;
(iii) holding office in a legal person owned in whole or in part by that
Member State;
(iv) the exercise of commercial activities in the context of which the offence
was committed;
(d) deprivation of the right to stand for elections, proportionate to the seriousness
of the offence committed; and
(e) withdrawal of permits or authorisations to pursue activities in the context of
which the offence was committed
(f) exclusions from access to public funding, including tender procedures, grants and
concessions;
Article 16
Liability of legal persons
1. Member States shall take the necessary measures to ensure that legal persons can be
held liable for any of the criminal offences referred to in Articles 7 to 14 committed
for the benefit of those legal persons by any natural person, acting either individually
or as part of an organ of the legal person, and having a leading position within the
legal person, based on one or more of the following:
(a) a power of representation of the legal person;
(b) the authority to take decisions on behalf of the legal person; or
(c) the authority to exercise control within the legal person.
2. Member States shall take the necessary measures to ensure that legal persons can be
held liable where the lack of supervision or control by a person referred to in
paragraph 1 has made possible the commission, including by any of the persons
EN 37 EN
under his authority, of any of the criminal offences referred to in Articles 7 to 14 for
the benefit of that legal person.
3. Liability of legal persons under paragraphs 1 and 2 shall not exclude criminal
proceedings against natural persons who are perpetrators, inciters or accessories in
the criminal offences referred to in Articles 7 to 14.
Article 17
Sanctions for legal persons
1. Member States shall take the necessary measures to ensure that a legal person held
liable for criminal offences pursuant to Article 16 are punishable by effective,
proportionate and dissuasive sanctions.
2. Member States shall take the necessary measures to ensure that sanctions or
measures for legal persons liable pursuant to Article 16 include:
(a) criminal or non-criminal fines, the maximum limit of which should not be less
than 5 percent of the total worldwide turnover of the legal person, including
related entities, in the business year preceding the decision imposing the fine;
(b) the exclusion of that legal person from entitlement to public benefits or aid;
(c) the temporary or permanent exclusion from public procurement procedures;
(d) the temporary or permanent disqualification of that legal person from the
exercise of commercial activities;
(e) the withdrawal of permits or authorisations to pursue activities in the context of
which the offence was committed;
(f) the possibility for public authorities to annul or rescind a contract with them, in
the context of which the offence was committed;
(g) the placing of that legal person under judicial supervision;
(h) the judicial winding-up of that legal person; and
(i) the temporary or permanent closure of establishments which have been used
for committing the offence.
Article 18
Aggravating and mitigating circumstances
1. Member States shall take the necessary measures to ensure that the following
circumstances are to be regarded as aggravating circumstances, in relation to the
offences referred to in Articles 7 to 14:
(a) the offender is a high level official;
(b) the offender has been convicted before of an offence referred to Articles 7 to
14;
(c) the offender obtained a substantial benefit or the offence caused substantial
damage;
(d) the offender committed the offence for the benefit of a third country;
(e) the offender exercises investigation, prosecution or adjudication functions;
EN 38 EN
(f) the offence was committed within the framework of a criminal organisation
within the meaning of Framework Decision 2008/841/JHA; and
(g) the offender is an obliged entity within the meaning of Article 2 of Directive
(EU) 2015/849 of the European Parliament and of the Council61
, or an
employee of an obliged entity, or has the power, whether individually or as part
of an organ of the obliged entity, to represent that entity, or the authority to
take decisions on behalf of that entity or to exercise control within the obliged
entity, and has committed the offence in the exercise of his professional
activities.
2. Member States shall take the necessary measures to ensure that the following
circumstances are regarded as mitigating circumstances, in relation to the criminal
offences referred to Articles 7 to 14:
(a) the offender provides the competent authorities with information which they
would not otherwise have been able to obtain, helping them to
(i) identify or bring to justice other offenders; or
(ii) find evidence.
(b) where the offender is a legal person and it has implemented effective internal
controls, ethics awareness, and compliance programmes to prevent corruption
prior to or after the commission of the offence; and
(c) where the offender is a legal person and it has, once the offence has been
discovered, rapidly and voluntarily disclosed the offence to the competent
authorities and taken remedial measures.
Article 19
Privileges or immunity from investigation and prosecution of corruption offences
Member States shall take the necessary measures to ensure that privileges or immunities from
investigation and prosecution granted to national officials for the offences referred to in this
Directive can be lifted through an objective, impartial, effective and transparent process pre-
established by law, based on clear criteria, and that is concluded within a reasonable
timeframe.
Article 20
Jurisdiction
1. Member States shall establish jurisdiction over the offences referred to in this
Directive where:
(a) the offence is committed in whole or in part in its territory;
(b) the offender is a national of or has his or her habitual residence in that Member
State;
(c) the offence is committed for the benefit of a legal person established in the
territory of that Member State.
61
Directive 2015/849/EU the European Parliament and of the Council of 20 May 2015 on the prevention of the
use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation
(EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the
European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73–
117).
EN 39 EN
2. Where an offence referred to in this Directive falls within the jurisdiction of more
than one Member State, the Member States concerned shall cooperate to determine
which one shall conduct criminal proceedings. The matter shall, where appropriate
and in accordance with Article 12 of Council Framework Decision 2009/948/JHA62
,
be referred to Eurojust.
3. In the cases referred to in paragraph 1, point (b), each Member State shall ensure that
the exercise of its jurisdiction is not subject to the condition that a prosecution can be
initiated only following a denunciation from the State in which the criminal offence
was committed or following a report made by the victim in the State where the
criminal offence was committed.
Article 21
Limitation periods for corruption offences
1. Member States shall take the necessary measures to provide for a limitation period in
respect of the criminal offences referred to in Articles 7 to 14, which allows for
sufficient time to effectively investigate, prosecute, trial and decide on those offences
following their commission.
2. The limitation period referred to in paragraph 1 shall not be shorter than:
(a) fifteen years from the time when the offence was committed, for the criminal
offences referred to in Articles 7 and 12;
(b) ten years from the time when the offence was committed, for the criminal
offences referred to in Articles 8 to 11;
(c) eight years from the time when the offence was committed, for the criminal
offences referred to in Articles 13 and 14.
3. By way of derogation from paragraph 2, Member States may establish a shorter
limitation period, provided that the period may be interrupted or suspended in the
event of specified acts and that the applicable rules on the suspension and limitation
periods do not hamper the effectiveness of the judicial process and the dissuasive
application of penalties. This period shall not be shorter than:
(a) ten years for the criminal offences referred to in Articles 7 and 12;
(b) eight years for the criminal offences referred to in Articles 8 to 11;
(c) five years for the criminal offences referred to in Articles 13 and 14.
4. Member States shall take the necessary measures to enable the enforcement of a
penalty of imprisonment following a final conviction for at least:
(a) fifteen years from the date of the final conviction for any of the criminal
offences referred to in Articles 7 and 12;
(b) ten years from the date of the final conviction for any of the criminal offences
referred to in Articles 8 to 11;
(c) eight years from the date of the final conviction for any of the criminal
offences referred to in Articles 13 and 14.
62
Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts
of exercise of jurisdiction in criminal proceedings (OJ L 328, 15.12.2009, p. 42).
EN 40 EN
5. By way of derogation from paragraph 4, Member States may establish a shorter
limitation period, provided that the period may be interrupted or suspended in the
event of specified acts and that the applicable rules on the suspension and limitation
periods do not hamper the effectiveness of the judicial process and the dissuasive
application of penalties. This period shall not be shorter than:
(a) ten years from the date of the final conviction for any of the criminal offences
referred to in Articles 7 and 12;
(b) eight years from the date of the final conviction for any of the criminal
offences referred to in Articles 8 to 11;
(c) five years from the date of the final conviction for any of the criminal offences
referred to in Articles 13 and 14.
Article 22
Protection of persons who report offences or assist the investigation
1. Member States shall take the necessary measures to ensure that Directive (EU)
2019/1937 is applicable to the reporting of the offences referred to in Articles 7 to 14
and the protection of persons reporting such offences.
2. In addition to the measures referred to in paragraph 1, Member States shall ensure that
persons reporting offences referred to in this Directive and providing evidence or
otherwise cooperating with the investigation, prosecution or adjudication of such
offences are provided the necessary protection, support and assistance in the context of
criminal proceedings.
Article 23
Investigative tools
Member States shall take the necessary measures to ensure that effective investigative tools,
such as those used in countering organised crime or other serious crimes, are available to
persons, units or services responsible for investigating or prosecuting the criminal offences
referred to in this Directive.
Article 24
Cooperation between Member States’ authorities, the Commission, Europol, Eurojust, the
European Anti-Fraud Office and the European Public Prosecutor's Office
Without prejudice to the rules on cross-border cooperation and mutual legal assistance in
criminal matters, Member States’ authorities, Europol, Eurojust, the European Public
Prosecutor's Office, the European Anti-Fraud Office (OLAF) and the Commission shall,
within their respective competences, cooperate with each other in the fight against the
criminal offences referred to in this Directive. To that end, where appropriate, Europol,
Eurojust, the European Public Prosecutor's Office, the European Anti-Fraud Office (OLAF),
and the Commission shall provide technical and operational assistance in accordance with
their respective mandates to facilitate the coordination of investigations and prosecutions by
the competent authorities.
Article 25
EN 41 EN
Commission support to Member States and their competent authorities
1. The Commission shall, where appropriate, support Member States and competent
authorities in complying with their obligations under this Directive.
2. The Commission shall prepare an overview of sectoral risks of corruption in the
Union and facilitate information exchange among Member States and experts across
the Union.
3. The Commission, through the EU network against corruption, shall in particular:
(a) facilitate cooperation and exchange of best practices among Member States’
practitioners, experts, researchers and other stakeholders;
(b) complement activities, such as those referred to in Article 3 and point (b) of
Article 18(2) by developing best practices, guidance materials and
methodologies.
4. The Commission shall inform Member States about financial resources at Union level
available to Member States for the fight against corruption.
Article 26
Data collection and statistics
1. Member States shall collect statistical data on the criminal offences as referred to in
Articles 7 to 14 of this Directive.
2. The statistical data referred to in paragraph 1 shall include at least the following:
(a) the number of cases reported;
(b) the number of cases investigated;
(c) the number of indictments;
(d) the average length of the criminal investigations of cases;
(e) the average length of courts proceedings of cases in first instance, second
instance and cassation;
(f) the number of convictions ;
(g) the number of natural persons convicted and sanctioned, with specification of
the number of public officials and high level officials;
(h) the number of legal persons held liable and sanctioned;
(i) the number of dismissed court cases for corruption, distinguishing between
dismissals on the substance or not and including non-trial resolutions;
(j) the types and levels of sanctions imposed for each of the criminal offences
referred to in Articles 7 to 14;
(k) the number of convictions pardoned, with specification of the number of
pardons to public officials and to high level official.
3. Member States shall, on an annual basis and by 1 June, publish, in a machine-readable
and disaggregated format, the statistical data referred to in paragraph 2 for the
previous year and inform the Commission thereof.
EN 42 EN
Article 27
Replacement of Council Framework Decision 2003/568/JHA and the Convention on the fight
against corruption involving officials of the European Communities or officials of Member
States of the European Union
1. Framework Decision 2003/568/JHA is replaced with regard to the Member States
bound by this Directive, without prejudice to the obligations of those Member States
with regard to the date for transposition of that Framework Decision into national
law.
With regard to the Member States bound by this Directive, references to Framework
Decision 2003/568/JHA shall be construed as references to this Directive.
2. The Convention on the fight against corruption involving officials of the European
Communities or officials of Member States of the European Union is replaced with
regard to the Member States bound by this Directive.
With regard to the Member States bound by this Directive, references to that
Convention shall be construed as references to this Directive.
Article 28
Amendments to Directive (EU) 2017/1371 on the fight against fraud to the Union’s financial
interests by means of criminal law
Directive (EU) 2017/1371 is amended as follows:
(1) In Article 2(1), the following point (c) is inserted:
‘(c) ‘high level officials’ are those defined in Article 2(8) of Directive (EU) XXX on
combating corruption.’
(2) In Article 4(2), the words ‘passive and active corruption’, ‘passive corruption’ and
‘active corruption’ are replaced respectively by ‘passive and active bribery in the
public sector’, ‘passive bribery in the public sector’ and ‘active bribery in the public
sector’.
(3) Article 7(3) is replaced by the following:
‘3. Member States shall take the necessary measures to ensure that the criminal
offences referred to in Articles 3, 4(1) and (2) are punishable by a maximum penalty
of at least six years of imprisonment when they involve considerable damage or
advantage.
Member States shall take the necessary measures to ensure that the criminal offence
referred to in Article 4(3) is punishable by a maximum penalty of at least five years of
imprisonment when it involves considerable damage or advantage.
The damage or advantage resulting from the criminal offences referred to in points (a),
(b) and (c) of Article 3(2) and in Article 4 shall be presumed to be considerable where
the damage or advantage involves more than EUR 100 000.
The damage or advantage resulting from the criminal offences referred to in point (d)
of Article 3(2) and subject to Article 2(2) shall always be presumed to be
considerable.’
(4) In Article 7, paragraph (4) is replaced by the following:
EN 43 EN
‘4. Where a criminal offence referred to in points (a), (b) or (c) of Article 3(2) or in
Article 4(1) and (3) involves damage of less than EUR 10 000 or an advantage of
less than EUR 10 000, Member States may provide for sanctions other than
criminal sanctions.’
(5) In Article 7, the following paragraph 6 is inserted:
‘7. Without prejudice to paragraphs 1 to 5, Member States shall take the necessary
measures to ensure that natural persons who have been convicted of committing
one of the criminal offences referred to in this Directive may be subject to
sanctions or measures as referred to in Article 15(4) of Directive (EU) XXX on
combating corruption.’
(6) Article 8 is replaced by the following:
‘Article 8
Aggravating and mitigating circumstances
Member States shall take the necessary measures to ensure that the circumstances
referred to in Article 18 of Directive (EU) XXX on combating corruption are to be
regarded as aggravating and mitigating circumstances, in relation to the criminal
offences referred to in this Directive.’
(7) Article 9 is replaced by the following:
‘Article 9
Sanctions with regard to legal persons
1. Member States shall take the necessary measures to ensure that a legal person
held liable for criminal offences pursuant to Article 6 shall be punishable by
effective, proportionate and dissuasive sanctions.
2. Member States shall take the necessary measures to ensure that sanctions or
measures for legal persons held liable pursuant to Article 6 shall include those
referred to in Article 17(2) of Directive (EU) XXX on combating corruption.’
(8) In Article 12, paragraphs (2), (3) and (4) are replaced by the following:
‘2. The limitation period as referred to in paragraph 1 shall not be shorter than:
(a) fifteen years from the time when the offence was committed, for the criminal
offences referred to in Articles 3, 4(1) and (2);
(b) ten years from the time when the offence was committed for the criminal
offence referred to in Article 4(3).
3. By way of derogation from paragraph 2, Member States may establish a shorter
limitation period, provided that the period may be interrupted or suspended in the
event of specified acts and that the applicable rules on the suspension and limitation
periods do not hamper the effectiveness of the judicial process and the dissuasive
application of penalties. This period shall not be shorter than:
(a) ten years for the criminal offences referred to in Articles 3, 4(1) and (2);
(b) eight years for the criminal offence referred to in Article 4(3).
EN 44 EN
4. Member States shall take the necessary measures to enable the enforcement of a
penalty of imprisonment following a final conviction for at least:
(a) fifteen years from the date of the final conviction for any of the criminal
offences referred to in Articles 3, 4(1) and (2);
(b) ten years from the date of the final conviction for the criminal offence referred
to in Article 4(3).
5. By way of derogation from paragraph 4, Member States may establish a shorter
limitation period, provided that the period may be interrupted or suspended in the
event of specified acts and that the applicable rules on the suspension and limitation
periods do not hamper the effectiveness of the judicial process and the dissuasive
application of penalties. This period shall not be shorter than:
(a) ten years from the date of the final conviction for any of the criminal offences
referred to in Articles 3, 4(1) and 4(2);
(b) eight years from the date of the final conviction for the criminal offence
referred to in Article 4(3).’
Article 29
Transposition
1. Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by [18 months after adoption] at
the latest. They shall forthwith communicate to the Commission the text of those
provisions.
2. When Member States adopt those provisions, they shall contain a reference to this
Directive or be accompanied by such a reference on the occasion of their official
publication. Member States shall determine how such reference is to be made.
3. Member States shall communicate to the Commission the text of the main provisions
of national law which they adopt in the field covered by this Directive.
Article 30
Evaluation and reporting
1. By [24 months after the deadline for implementation of this Directive], the
Commission shall submit a report to the European Parliament and to the Council,
assessing the extent to which the Member States have taken the necessary measures
to comply with this Directive.
2. Every two years as of [12 months after the deadline for implementation of this
Directive], Member States shall send the Commission a report within three months
which includes a summary about implementation of and actions taken in accordance
with Articles 3 to 6.
3. By [48 months after the deadline for implementation of this Directive], the
Commission shall submit a report to the European Parliament and to the Council,
assessing the added value of this Directive with regard to combating corruption. The
report shall also cover the impact of this Directive on fundamental rights and
freedoms. On the basis of this evaluation, the Commission shall, if necessary, decide
on appropriate follow-up actions.
EN 45 EN
Article 31
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in
the Official Journal of the European Union.
Article 32
Addressees
This Directive is addressed to the Member States in accordance with the Treaties.
Done at Brussels,
For the European Parliament For the Council
The President The President