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Convention against corruption involving public officials
SUMMARY OF:
Convention on the Fight against Corruption Involving EU or Member State Officials
WHAT IS THE AIM OF THE CONVENTION AND OF THE ACT?
- The convention on the fight against corruption:
- aims to ensure that each European Union (EU) Member State takes the necessary measures to criminalise corruption involving public officials1;
- is designed to fight corruption involving EU officials2 or Member States’ national officials3 and to strengthen judicial cooperation between the Member States in this fight.
- The Council act marks the agreement of the Council of the European Union to draw up the convention.
KEY POINTS
- Under the convention, each Member State must take the necessary measures to criminalise both active4 and passive corruption5 by public officials. Both participating in and instigating either of these forms of corruption are covered by the convention.
- Sanctions must be effective, proportionate and dissuasive. In addition, Member States must allow heads of businesses, or any persons having the power to take decisions or exercise control within a business, to be declared criminally liable in cases of active corruption by a person under their authority acting on behalf of the business.
- Each Member State must set up its jurisdiction over offences, in accordance with the obligations arising out of this convention, when:
- the offence is committed in whole or in part within its territory;
- the offender is one of its nationals or one of its officials;
- the offence is committed against EU or national officials, or against a member of the EU institutions who is also one of its nationals;
- the offender is an EU official working for an EU institution, agency or body that has its headquarters in the Member State in question.
- If any procedure in connection with an offence in accordance with the obligations arising out of the convention concerns at least two Member States, those countries must cooperate in the investigation and prosecution, and in carrying out the punishment imposed.
- Member States must apply the principle that no legal action can be carried out twice for the same offence (also known as the ne bis in idem principle), but exceptions to this principle are possible.
- Member States may adopt internal legal arrangements that go beyond the obligations set out in the convention.
- In the event of a dispute between Member States over the interpretation or application of the convention, and in the absence of a mutual resolution, the case must be examined by the Council as set out in Title IV of the Treaty on European Union. If the Council has not found a solution within six months, one of the parties to the dispute may refer the matter to the Court of Justice of the European Union. This court also has jurisdiction in disputes between a Member State and the European Commission.
Stronger rules to fight corruption proposed
In May 2023, the Commission presented an anti-corruption package. The package comprises:
- a communication that reviews existing legislation and policy in the field (see summary);
- a proposal for a directive on fighting corruption that would criminalise corruption offences and harmonise definitions and penalties across the EU; when adopted, this would replace the convention against corruption involving EU or Member State officials; and
- a proposed dedicated sanctions regime to fight serious acts of corruption worldwide designed to complement the common foreign and security policy toolbox of restrictive measures (sanctions).
DATE OF ENTRY INTO FORCE
The convention entered into force on , and all Member States have acceded to it.
BACKGROUND
Criminalising active and passive corruption has been covered by a number of international and European instruments over the past two decades.
International level
- Criminalisation of active and passive corruption is regulated by the United Nations Convention against Corruption (UNCAC), which is an international treaty of universal scope. It entered into force on . By December 2014, all Member States had ratified the UN convention and the EU became a contracting party in 2008 (Decision 2008/801/EC – see summary).
- The Organisation for Economic Co-operation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (in force since 1999) establishes legally binding standards to criminalise bribery of foreign public officials in international business transactions and provides for a host of related measures that make this effective. It focuses on the supply side of international corruption.
European level
- The Criminal Law Convention on Corruption of the Council of Europe (in force since 2002) is also an ambitious instrument aimed at the coordinated criminalisation of corrupt practices. It also provides for complementary criminal law measures and for improved international cooperation in the prosecution of corruption offences.
NB: Although most Member States are parties to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the Criminal Law Convention on Corruption, the EU is not a party.
For further information, see:
- Anti-corruption (European Commission).
KEY TERMS
- Public official. Any EU or national official, including any national official of another Member State.
- EU official. Any person who is an official or other contracted employee within the meaning of the Staff Regulations of Officials of the EU, along with any person seconded to the EU by the Member States or by any public or private body who carries out functions equivalent to those performed by EU officials or other servants.
- National official. An official or public officer as defined by the national law of the Member State in which the person in question performs that function for the purposes of the application of the criminal law of that Member State.
- Active corruption. The deliberate action of a person who promises or gives, directly or through an intermediary, an advantage of any kind whatsoever to an official, for themself or for a third party, for them to act or refrain from acting in accordance with their duty or in the exercise of their functions, in breach of their official duties.
- Passive corruption. The deliberate action of an official who, directly or through an intermediary, requests or receives advantages of any kind whatsoever, for themself or for a third party, or accepts a promise of such an advantage, to act or refrain from acting in accordance with their duty or in the exercise of their functions, in breach of their official duties.
MAIN DOCUMENTS
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, , pp. 2–11).
Council Act of drawing up, on the basis of Article K.3 (2) (c) of the Treaty on European Union, the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (OJ C 195, , p. 1).
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