EUROPEAN COMMISSION

Brussels, 14.12.2020

COM(2020) 793 final

COMMUNICATION FROM THE COMMISSION

on the review of the European Union under the Implementation Review Mechanism of the United Nation Conventions against Corruption (UNCAC)

I. Context and background

The European Union is based on a set of common values, including respect for human rights, democracy, equality and the rule of law. Corruption undermines the functioning of the state and of public authorities at all levels and is a key enabler of organised crime. Effective anti-corruption frameworks, transparency and integrity in the exercise of state power can strengthen legal systems and trust in public authorities. This Communication reinforces and complements other EU instruments and the Commission’s efforts to fight corruption. As set out in the Commission’s first rule of law report adopted earlier this year, the fight against corruption is essential for maintaining the rule of law and in view of its importance it is one of the four pillars of the report. 1 A strong rule of law and anti-corruption culture is the result of the citizens’ trust that integrity is the norm and that compliance with the law is safeguarded.

The EU has on many occasions underlined its commitment to the review process. 2 Both the European Parliament and the Council have emphasised the need to step up the EU’s leading role in the global fight against corruption and to take forward the review process under the United Nations Convention against Corruption (UNCAC; hereafter ‘the Convention’). The European Parliament and the Council have specifically recalled the importance for the EU to fulfil the review obligation. 3

The EU became a member to the Convention in 2008. 4 This is the most comprehensive international anti-corruption treaty both in terms of geographic coverage (187 parties) and issues covered. All EU Member States are parties to the Convention. 5 The EU has also played a major role in the adoption of the resolution on the fight against corruption adopted by the UN General Assembly on 1 June 2020. This resolution opened the way for the Special Session of the UN General Assembly on challenges and measures to prevent and combat corruption and strengthen international cooperation, planned for June 2021.

The Convention is also the only legally binding universal international anti-corruption instrument. It covers five areas: preventive measures (Chapter II); criminalisation and law enforcement (Chapter III); international cooperation (Chapter IV); asset recovery (Chapter V); and technical assistance and information exchange (Chapter VI). In the Convention, anti-corruption is addressed in a broad sense and its provisions cover many different forms of corruption, such as bribery, trading in influence, abuse of functions, and various acts of corruption in both the public and the private sector. The Convention introduces a set of standards, measures and rules that countries can apply to strengthen their legal and regulatory regimes to fight corruption. Its main aims are to strengthen measures in order to prevent and combat corruption more efficiently and effectively, promote the integrity, accountability and proper management of public affairs and public property, and facilitate and support international cooperation and technical assistance against corruption.

It is crucial to strengthen the authority of the EU in the fight against corruption and therefore to ensure that the EU’s pending obligations stemming from the Convention are addressed by the time of the Special Session of the UN General Assembly (UNGASS). This means participation in the implementation review. 6  

In November 2009, the Conference of the States Parties, the main decision-making body 7 of the Convention, adopted Resolution 3/1, which established an Implementation Review Mechanism for the Convention. The EU supported the establishment of this Implementation Review Mechanism. 8 According to Resolution 3/1, States parties must undergo a review of the implementation of the Convention. The mechanism, based on a peer-review, results in an evaluation assessing how each States party’s rules and practices comply with the Convention’s principles, objectives and requirements. These evaluations help identify deficiencies in national anti-corruption policies, prompting the necessary legislative, institutional and practical reforms.

International agreements concluded by the EU are binding upon the institutions of the Union and on its Member States 9 and the review mechanism established under this Convention is binding upon all the parties to the Convention. Therefore, the review obligation applies to the European Union as well. However, the unique position of the European Union as the only regional economic integration organisation that is a party to the Convention adds some complexity as regards the modalities of the EU’s participation in the exercise. 10

Under Article 17 of Treaty on European Union, the Commission exercises coordinating, executive and management functions in implementing international agreements to which the Union is a party and ensures the Union’s external representation, and therefore carries the responsibilities in steering the review process under the Convention with a view to ensuring that the Union is fulfilling its obligations under the Convention.

This Communication therefore puts forward the Commission’s approach to the review process. The Union as a whole is bound to implement the Convention and thus to submit to the review process which has been established by the Convention. This exercise, which is to be coordinated by the Commission, will require the involvement of all relevant Union institutions and possibly certain agencies or bodies, depending on the tasks conferred on them by the Treaties or by the Union’s legislation in the area of relevance for the Convention. Their involvement should be governed by the principle of the administrative autonomy of each institution, in matters relating to their respective operation.

The Commission has analysed the implications stemming from the unique status as a party to the Convention of the EU as a regional economic integration organisation. In order to proceed with the review, first the declaration of competence needs to be updated to reflect the legal consequences of the entry into force of the Treaty of Lisbon (section II below). On the practical modalities of the review, some necessary adaptations would need to be defined to allow the European Union to participate in the review (sections III, IV and V below).

II. Update of the declaration of competence

The Convention provides that the instrument of ratification, acceptance or approval of a regional economic integration organisation is to contain a declaration on the extent of its competence. 11 The Declaration concerning the competence of the European Community with regard to matters governed by the United Nations Convention against Corruption duly notified to the Secretary-General of the United Nations at the time of the Union’s conclusion of the Convention. 12 The Convention also provides in Article 67(3) that the regional organisation concerned is to inform the depositary of any relevant change in the extent of its competence. 13

With the entry into force of the Treaty of Lisbon, the scope and exercise of the Union’s competence have changed to a certain degree. For example, the EU acquired new competences under Title V of the TFEU (articles 82 and 83 of the Treaty on the Functioning of the European Union). The Secretary-General of the United Nations must therefore be informed of these developments. 14

III. Launching the review of the EU under the Convention    

Each party is reviewed by two other States parties to the Convention, the selection of the reviewing parties being done by drawing of lots. 15 Each party must also act as a reviewer. The drawing of lots to select the reviewing parties can be done at any of the meetings of the Implementation Review Group. The review is formally launched when the Secretariat of the Convention (UNODC) informs the party under review of the beginning of the conduct of the country review. 16 Parties must also communicate a focal point to coordinate its participation in the review as well as notify a list of governmental experts for the purpose of the review process (when the party acts as a reviewer to other parties 17 ).

IV. Modalities and organisation of the EU review    

In 2009, the Conference of the States Parties, adopted the terms of reference of the Mechanism for the Review of Implementation of the Convention and created the Implementation Review Group to supervise the review process under the authority of the Conference. Parties are assessed in accordance with the terms of reference of the Mechanism for the Review of Implementation. A model timeframe for completing the review has been developed by the Secretariat. 18

For each cycle, the process requires the party under review to draft and submit a self-assessment, on the basis of which the review will be carried out.

The implementation review under the Convention takes place in two cycles:

·Cycle 1 focuses on criminalisation and law enforcement (Chapter III) and international cooperation (Chapters IV) and will include reporting on a) offences and law enforcement; b) protection of witnesses, experts, victims and whistleblowers; c) consequences of acts of corruption; d) cooperation and within and between international organisations; e) cooperation of international organisations with the EU and Member States; and f) joint investigations.

·Cycle 2 covers asset recovery (Chapter V) and prevention (Chapter II), which includes law enforcement and public procurement legislation.  

The review process would therefore start with Cycle 1, and then be followed by Cycle 2.

The scope of the self-assessment would cover those areas that are directly relevant to the EU and its institutions (and staff), in respect of matters subject to the Convention, and depending on which Cycle was involved: such as preventive measures against corruption, international cooperation and asset recovery.

The EU self-assessment will not enter into questions of implementation of EU law by Member States, which is covered by their own review processes, but rather explain the obligations on the EU institutions stemming from the Treaties and relevant EU legislation.

2. Desk review and on-site visit

Once the self-assessment has been submitted, the reviewing experts conduct a desk review of the completed self-assessment. If agreed by the party under review, in the spirit of establishing a constructive dialogue, the desk review can be complemented with any further means of direct dialogue, such as a country visit or a joint meeting at the United Nations Office in Vienna. The on-site visit consists of meetings held between experts designated by the reviewing parties and experts of the reviewed party, with the assistance of the secretariat. Stakeholders are encouraged to participate at these visits, which held at expert level. The purpose of these meetings is to clarify certain aspects of the submitted answer and gather additional information as need be. As foreseen by the Terms of Reference of the mechanism, the reviewing States parties and the secretariat shall maintain the confidentiality of all information obtained in the course of, or used in, the country review process.