51996AP0130

A4-0130/96

Draft Council act drawing up the Protocol to the Convention on the protection of the Communities' financial interestsanddraft protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, to the Convention on the Protection of the European Communities' financial interests (officials and Members) (C4-0607/95 - 12549/95 - 96/0902(CNS))

The draft was approved with the following amendments:

Draft Council act Amendments by Parliament

(Amendment 1)

Title

>Original text>

Draft Council Act drawing up the Protocol to the Convention on the protection of the Communities' financial interests

>Text following EP vote>

Draft Council Act drawing up the Convention on corruption to the detriment of the European Communities

This amendment applies throughout the two texts

(Amendment 2)

Recital 3

>Original text>

Whereas, as a second stage, this Convention needs to be supplemented by a protocol directed in particular at acts of corruption that involve national and European officials and that damage or are likely to damage the European Communities' financial interests;

>Text following EP vote>

Whereas, as a second stage, the Convention of 26 July 1995 needs to be supplemented by a convention directed in particular at acts of corruption that involve national and European officials and that damage or are likely to damage the European Communities' interests;

(Amendment 3)

Recital 3a (new)

>Text following EP vote>

Whereas measures also need to be taken against acts of bribery by or against other persons who are employed by or work for the European Communities;

(Amendment 4)

Title

>Original text>

Draft Protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, to the Convention on the protection of the European Communities' financial interests

>Text following EP vote>

Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on corruption to the detriment of the European Communities

(Amendment 5)

Article 1(1), 2nd subparagraph (new) and (2)

>Text following EP vote>

Persons working for, or holding managerial posts with, the EIB, the ESCB and the EMI shall be treated in the same way as European officials.

>Original text>

2. 'Convention¨ shall mean: the Convention drawn up in Brussels on 26 July 1995 on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities' financial interests (Official Journal of the European Communities, ... 1995).

>Text following EP vote>

2. 'Convention of 26 July 1995" shall mean: the Convention drawn up in Brussels on 26 July 1995 on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities' financial interests (OJ C 316, 27.11.1995, p. 48).

(Amendment 6)

Article 2

>Original text>

1. For the purposes of this Protocol, the deliberate action of an official who requests, accepts or receives, directly or through a third party, for himself or for a third party, offers, promises or advantages of any kind whatsoever to act or refrain from acting in accordance with his duty or in the exercise of his functions in breach of his official duties in a way which damages or is likely to damage the European Communities' financial interests shall constitute passive corruption.

>Text following EP vote>

The offence of passive corruption

Member States shall include in their legislation the offence of passive corruption to the detriment of the European Communities, i.e.: the action of an official who requests, accepts or receives, directly or indirectly, for himself or for a third party, offers, promises or advantages of any kind whatsoever

(a) to act in accordance with his duty or in the exercise of his functions in breach of his official duties

>Text following EP vote>

(b) to refrain from acting in accordance with his duty or in the exercise of his functions in breach of his official duties,

>Text following EP vote>

(c) to refrain from rectifying, or reporting to his immediate superiors, an error or mistake committed in the past.

>Original text>

2. Each Member State shall take the necessary measures to ensure that conduct of the type referred to in paragraph 1 is made a criminal offence.

>Text following EP vote>

Deleted

(Amendment 7)

Article 3

>Text following EP vote>

The offence of active corruption

>Original text>

1. For the purposes of this Protocol, the deliberate action of whosoever promises or gives, directly or through an intermediary, an advantage of any kind whatsoever to an official for himself or for a third party for him to act or refrain from acting in accordance with his duty or in the exercise of his functions in breach of his official duties in a way which damages or is likely to damage the European Communities' financial interests shall constitute active corruption.

>Text following EP vote>

Member States shall include in their legislation the offence of active corruption, i.e. the action of whosoever promises or gives, directly or through a third party, an advantage of any kind whatsoever to an official for himself or for a third party

(a) for him to act in accordance with his duty or in the exercise of his functions in breach of his official duties,

>Text following EP vote>

(b) for him to refrain from acting in accordance with his duty or in the exercise of his functions in breach of his official duties,

>Text following EP vote>

(c) for him to refrain from rectifying, or reporting to his immediate superiors, an error or mistake committed in the past.

>Original text>

2. Each Member State shall take the necessary measures to ensure that conduct of the type referred to in paragraph 1 is made a criminal offence.

>Text following EP vote>

Deleted

(Amendment 8)

Article 3a (new)

>Text following EP vote>

Article 3a

Aggravated offence

Corruption, within the meaning of Articles 2 and 3, committed by an organised group and/or over a long period shall be an aggravated offence.

(Amendment 9)

Article 3b (new)

>Text following EP vote>

Article 3b

Attempted corruption or complicity in corruption

>Text following EP vote>

Incitement to commit, attempts at committing, complicity in, or any other form of involvement in the conduct specified in Articles 3 and 3a shall also be deemed to be offences.

(Amendment 10)

Article 4(1), (2) and (3)

>Original text>

1. Each Member State shall take the necessary measures to ensure that in its criminal law the descriptions of the offences constituting conduct of the type referred to in Article 1 of the Convention committed by its national officials in the exercise of their functions apply similarly in cases where such offences are committed by European officials in the exercise of their duties.

>Text following EP vote>

1. Each Member State shall take the necessary measures to ensure that in its criminal law the descriptions of the offences constituting conduct of the type referred to in Article 1 of the Convention of 26 July 1995 committed by its national officials in the exercise of their functions apply similarly in cases where such offences are committed by European officials and the officials of other Member States in the exercise of their duties.

>Original text>

2. Each Member State shall take the necessary measures to ensure that in its criminal law the descriptions of the offences referred to in paragraph 1 and in Articles 2 and 3 committed by or against its Government Ministers, elected members of its parliamentary chambers, the members of its highest Courts or the members of its Court of Auditors in the exercise of their functions apply similarly in cases where such offences are committed by or against members of the Commission, the European Parliament, the Court of Justice and the Court of Auditors respectively in the exercise of their duties.

>Text following EP vote>

2. Each Member State shall take the necessary measures to ensure that in its criminal law the descriptions of the offences referred to in paragraph 1 and in Articles 2, 3, 3a and 3b committed by or against its Government Ministers, elected members of its parliamentary chambers, the ombudsman, the members of its highest Courts or the members of its Court of Auditors in the exercise of their functions apply similarly in cases where such offences are committed by or against members of the Commission, the members of the Council, the European Parliament, the Ombudsman, the members of the Court of Justice and the Court of Auditors respectively in the exercise of their duties.

>Original text>

3. Where a Member State has enacted special legislation concerning acts or omissions for which Government Ministers are responsible by reason of their special political position in that Member State, paragraph 2 may not apply to such legislation, provided that the Member State ensures that Members of the Commission are covered by the criminal legislation implementing Articles 2, 3 and 4(1).

>Text following EP vote>

3. Where a Member State has enacted special legislation concerning acts or omissions for which Government Ministers are responsible by reason of their special political position in that Member State, paragraph 2 may not apply to such legislation, provided that the Member State ensures that Members of the Commission and members of the Council are covered by the criminal legislation implementing Articles 2, 3, 3a, 3b and 4(1).

(Amendment 11)

Article 5

>Text following EP vote>

Penalties

>Original text>

1. Member States shall take the necessary measures to ensure that the conduct referred to in Articles 2 and 3 and participating in and instigating the conduct in question are punishable by effective, proportionate and dissuasive criminal penalties, including, at least in serious cases, penalties involving deprivation of liberty which can give rise to extradition.

>Text following EP vote>

1. Member States shall take the necessary measures to ensure that the conduct referred to in Articles 2, 3, 3a, 3b and 4 is punishable by effective, proportionate and dissuasive criminal penalties, including penalties involving deprivation of liberty for at least three years which can give rise to extradition.

>Original text>

2. (Deleted)

>Text following EP vote>

2. (Deleted)

>Original text>

3. Paragraph 1 shall be without prejudice to the exercise of disciplinary powers by the competent authorities against national officials or European officials. In determining the penalty to be imposed, the national criminal courts may, in accordance with the principles of their legislation, take into account any disciplinary penalty already imposed on the same person for the same conduct.

>Text following EP vote>

3. In determining the penalty to be imposed, the national criminal courts may, in accordance with the principles of their legislation, take into account, inter alia, any disciplinary penalty already imposed on the same person for the same conduct and any other important factor such as the extent of the offers, promises or other advantages and the magnitude of the act from the point of view of the interests of the European Communities.

(Amendment 12)

Article 6(1)

>Text following EP vote>

Jurisdiction

>Original text>

1. Each Member State shall take the measures necessary to establish its jurisdiction over the offences it has established in accordance with Articles 2, 3 and 4 where:

>Text following EP vote>

1. Each Member State shall take the measures necessary to establish its jurisdiction over the offences it has established in accordance with Articles 2, 3, 3a, 3b and 4 where:

>Original text>

(a) the offence is committed in whole or in part in its territory;

>Text following EP vote>

(a) the offence is committed in whole or in part in its territory;

>Original text>

(b) the offender is a national or an official of the Member State concerned;

>Text following EP vote>

(b) the offence is committed by or against a European official working for a Community institution which has its headquarters in the Member State concerned.

>Original text>

(c) the offence is committed against one of the persons referred to in Article 1 or a member of one of the institutions referred to in Article 4(2) who is a national of the Member State concerned;

>Text following EP vote>

(c) the offender is a national of the Member State or an official of the Member State concerned within the meaning of Articles 1(1) and (1a);

>Original text>

(d) the offender is a European official working for a Community institution or a body set up under the Treaties establishing the Communities which has its headquarters in the Member State concerned.

>Text following EP vote>

(d) the offence is committed against one of the persons referred to in Article 1 (1) who is a national of the Member State concerned;

(Amendment 13)

Article 6(2)

>Original text>

2. Each Member State may declare when giving the notification referred to in Article 9(2) that it will not apply or will apply only in specific cases or conditions one or more of the rules laid down in paragraph 1(b), (c) and (d).

>Text following EP vote>

Deleted

(Amendment 14)

Article 6a (new)

>Text following EP vote>

Article 6a

Order of jurisdiction

>Text following EP vote>

1. The authorities responsible for conducting the investigation and for the decision to prosecute shall, in the absence of any other arrangement, adhere to the order of jurisdiction set out in the previous Article.

>Text following EP vote>

2. However, if a decision is taken not to prosecute in the Member State having priority, the other Member States shall be entitled to prosecute and, in the absence of any other arrangement, shall adhere to the order of jurisdiction set out in the previous Article.

(Amendment 15)

Article 6b (new)

>Text following EP vote>

Article 6b

Procedures

>Text following EP vote>

1. The Member States shall inform the Community institutions concerned of every fact, including presumed facts, concerning corruption to the detriment of the European Communities or of the procedures set out in Articles 3, 3a, 3b, 4, 5, 6 and 6a of which they have knowledge.

>Text following EP vote>

2. The Community institutions shall inform the Member States concerned of every fact, including presumed facts, concerning corruption to the detriment of the European Communities or the procedures set out in Articles 3, 3a, 3b, 4, 5, 6 and 6a of which they have knowledge.

>Text following EP vote>

3. If a Community institution takes the initiative in communicating facts, the Member State shall have the obligation to carry out supplementary investigations and to prosecute the offender(s) if sufficient proof is obtained.

>Text following EP vote>

4. If a Member State takes the initiative in communicating facts, the Member States concerned shall inform the Community institutions concerned as to the choice of Member State to prosecute the offender(s). In this case, the institution shall conduct internal investigations and shall communicate the facts to the Member State in question.

(Amendment 16)

Article 6c (new)

>Text following EP vote>

Article 6c

Mutual assistance in criminal matters

>Text following EP vote>

1. The competent authorities of each Member State shall, at the request of the competent authorities of another Member State or of the Commission, render as much assistance as possible for all procedures seeking to combat the offences specified in Articles 2, 3, 3a, 3b and 4.

>Text following EP vote>

2. Assistance may only be refused by a Member State if it believes that complying with the request would be likely to harm public order.

>Text following EP vote>

3. Any refusal to provide assistance must be accompanied by the reasons for the refusal and be brought to the attention of the President of the Commission.

(Amendment 17)

Article 7(1)

>Original text>

Article 3, Article 5(1), (2) and (4) and Article 6 of the Convention shall apply as if there were a reference to the conduct referred to in Articles 2, 3 and 4 of this Protocol.

>Text following EP vote>

Article 3, Article 5(1), (2) and (4) and Article 6 of the Convention of 26 July 1995 shall apply as if there were a reference to the conduct referred to in Articles 2, 3, 3a, 3b and 4 of this convention.

(Amendment 18)

Article 7a (new)

>Text following EP vote>

Article 7a

The penal code and criminal investigation procedures of the Member State conducting the prosecution pursuant to the preceding articles shall apply.

(Amendment 19)

Article 8

>Original text>

Court of Justice

>Text following EP vote>

Court of Justice

>Original text>

1. Any dispute between Member States on the interpretation or application of this Protocol must in an initial stage be examined by the Council in accordance with the procedure set out in Title VI of the Treaty on European Union with a view to reaching a solution.

>Text following EP vote>

1. Any dispute between Member States on the interpretation or application of this Convention must in an initial stage be examined by the Council in accordance with the procedure set out in Title VI of the Treaty on European Union with a view to reaching a solution.

>Original text>

If no solution has been found within six months the dispute may be referred to the Council of Justice of the European Communities by a party to the dispute.

>Text following EP vote>

If no solution has been found within six months the dispute shall be referred to the Council of Justice of the European Communities by a party to the dispute.

>Original text>

2. Any dispute between one or more Member States and the Commission of the European Communities concerning the application of Article 1, with the exception of the second indent of paragraph 1, or Articles 2, 3, 4, or 7(2), third indent of this Protocol which it has proved impossible to settle through negotiation may be submitted to the Court of Justice.

>Text following EP vote>

2. Any dispute between one or more Member States and the Commission of the European Communities concerning the application of Article 1, with the exception of the second indent of paragraph 1, or Articles 2, 3, 4, or 7(2), third indent of this Convention which it has proved impossible to settle through negotiation shall be submitted to the Court of Justice.

>Text following EP vote>

2a. The Court of Justice of the European Communities has jurisdiction to give preliminary rulings on the interpretation of this Convention if such matters are raised before a court of one of the Member States. Such a court may, if it feels that a decision on this matter is necessary for it to give judgment, request the Court of Justice to give a ruling on this question.

>Text following EP vote>

2b. The judgment of the Court of Justice in those cases referred to in paragraphs (1), (2) and (2a) shall be binding on all parties to this Convention.

(Amendment 20)

Article 9

>Original text>

Entry into force

1. This Protocol shall be subject to adoption by the Member States in accordance with their respective constitutional arrangements.

>Text following EP vote>

Entry into force

1. This Convention shall be subject to adoption by the Member States in accordance with their respective constitutional arrangements.

>Original text>

2. Member States shall notify the Secretary-General of the Council of the European Union of the completion of the procedures required under their respective constitutional rules for adopting this Protocol.

>Text following EP vote>

2. Member States shall notify the President of the Commission of the completion of the procedures required under their respective constitutional rules for adopting this Convention

>Original text>

3. This Protocol shall enter into force ninety days after the notification referred to in paragraph 2, by the last Member State of the European Union to fulfil that formality. If, however, the Convention has not entered into force on that date, the Protocol shall enter into force on the date on which the Convention enters into force.

>Text following EP vote>

3. This Convention shall enter into force ninety days after the notification referred to in paragraph 2, by the last Member State of the European Union to fulfil that formality.

(Amendment 21)

Article 11

>Original text>

Reservations

1. No reservation shall be authorized with the exception of those provided for in Article 6(2).

>Text following EP vote>

Reservations

No reservation shall be authorized.

>Original text>

2. Any Member state which has entered a reservation may withdraw it at any time in whole or in part by notifying the depository. Withdrawal shall take effect on the date on which the depositary receives the notification.

(Amendment 22)

Article 11a (new)

>Text following EP vote>

Article 11a

The provisions of this convention shall apply only insofar as they are compatible with EC directives and regulations on the protection of the Communities' financial interests.

(Amendment 23)

Article 12

>Original text>

Depository

1. The Secretary-General of the Council of the European Union shall act as depositary of this Protocol.

>Text following EP vote>

Depository

1. The President of the Commission shall act as depositary of this Convention.

>Original text>

2. The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions, declarations and reservations and any other notification concerning this Protocol.

>Text following EP vote>

2. The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions and any other notification concerning this Convention.

(Amendment 24)

Article 12a (new)

>Text following EP vote>

Article 12a

The Commission shall submit as soon as possible a proposal for a directive on the liability and protection of officials and other servants in criminal matters containing at least the following provisions:

>Text following EP vote>

'European Parliament and Council Directive of ...

on the liability and protection of officials and other servants in criminal matters.

>Text following EP vote>

The European Parliament and the Council of the European Union,

>Text following EP vote>

Having regard to the Treaty establishing the European Community, particularly Articles 100a and 209a thereof,

>Text following EP vote>

Having regard to the Commission proposal,

>Text following EP vote>

Having regard to the opinion of the Economic and Social Committee,

>Text following EP vote>

whereas the Community has jurisdiction in criminal matters to protect its financial interests vis-à-vis not only irregularities committed by economic operators but also illegal conduct by or against its officials that could be detrimental to the Community budget;

>Text following EP vote>

whereas the rules applicable should be uniform whatever the legal system involved;

>Text following EP vote>

whereas those rules should take account both of the fundamental principles of the constitutional systems of the Member States and of the acts of secondary Community legislation applicable, such as the Staff Regulations of European Officials;

>Text following EP vote>

whereas the rules on the liability and protection of European officials in criminal matters must be supplemented by provisions on the administrative liability of European officials vis-à-vis the Community;

>Text following EP vote>

have adopted the following directive:

Article 1

1. The purpose of this Directive is protection of the Community's financial interests (revenue and expenditure) by the authorities and courts responsible for applying national law in the case of acts involving the liability or necessitating the protection of officials and other servants of the European Communities in criminal matters.

>Text following EP vote>

2. For the purposes of this Directive:

- 'official' shall mean any 'European' or 'national' official, including any national official of another Member State;

>Text following EP vote>

- 'European official' shall mean:

. any person who is an official or other contracted employee within the meaning of the Staff Regulations of officials of the European Communities or the conditions of employment of other servants of the European Communities;

>Text following EP vote>

. any person seconded to the European Communities by the Member States or by any public or private body, who carries out the same functions as those performed by European Community officials or other servants as provided for in their Staff Regulations;

>Text following EP vote>

. staff of the EIB, the ESCB and the EMI.

Article 2

1. For the purposes of this Directive:

- the action of an official who requests, accepts or receives, directly or through a third party, for himself or for a third party, offers, promises or advantages of any kind whatsoever to act or refrain from acting in accordance with his duty or in the exercise of his functions shall constitute passive corruption;

>Text following EP vote>

- the action of whosoever promises or gives, directly or through an intermediary, an advantage of any kind whatsoever to an official for himself or for a third party for him to act or refrain from acting in accordance with his duty or in the exercise of his functions shall constitute active corruption;

>Text following EP vote>

- the action of an official who creates, in whole or in part, a forged document or falsifies a genuine document shall constitute forgery;

>Text following EP vote>

- the deliberate action of an official who makes use of a forged document shall constitute uttering;

>Text following EP vote>

- the action of an official who appropriates or embezzles, for himself or for a third party, a sum of money or assets belonging to his administration, shall constitute misappropriation of funds.

>Text following EP vote>

2. Each Member State shall take the necessary measures to ensure that the conduct referred to in paragraph 1 and attempted such conduct are established as criminal offences where they damage the European Community's financial interests.

>Text following EP vote>

3. Each Member State shall take the necessary measures to ensure that the conduct referred to in paragraphs 1 and 2 and participating in and instigating such conduct are punishable by effective, proportionate and dissuasive criminal penalties, including penalties involving deprivation of liberty for at least:

>Text following EP vote>

- three years for corruption and misappropriation of funds;

>Text following EP vote>

- one year for forgery and uttering.

Article 3

Each Member State shall take the necessary measures to ensure that in its criminal law the offences referred to in Article 2 committed by or against Members of the Commission, the European Parliament, the Council, the Court of Justice and the Court of Auditors, the Ombudsman, the directors of the ESCB and the EMI and the governors of the EIB, respectively in the exercise of their duties, are punishable by the same penalties as referred to in Article 2.

>Text following EP vote>

Article 4

1. The preceding articles shall be without prejudice to the provisions concerning criminal proceedings and determination of the competent court.

>Text following EP vote>

2. This Directive shall apply in full accordance with the relevant provisions of the Treaties establishing the European Communities, the Protocol on the Privileges and Immunities of the European Communities, the Statutes of the Court of Justice and the texts adopted for the purpose of their implementation, as regards waiver of immunity.

>Text following EP vote>

3. It shall also apply in full accordance with the provisions of the Staff Regulations of European officials and implementing texts, particularly the rules governing disciplinary measures and financial reparation (Articles 88 and 22 of the Staff Regulations).

>Text following EP vote>

Article 5

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 31 December 1999.

>Text following EP vote>

2. Reference shall be made in such laws, regulations and administrative provisions to this Directive.

>Text following EP vote>

3. Member States shall communicate to the Commission the text of existing or new provisions of national law that guarantee transposition of this Directive.

>Text following EP vote>

4. Before 31 March each year, the Member States shall communicate to the Commission the number of cases of criminal proceedings initiated for the conduct referred to in Articles 2 and 3.

>Text following EP vote>

Article 6

This Directive is addressed to the Member States.¨

(Amendment 25)

ANNEX II

>Text following EP vote>

Annex II, 'draft statement for entry in the Council minutes on the adoption of the act drawing up the Protocol¨, is deleted.

Legislative resolution embodying Parliament's opinion on the draft Council act drawing up the Protocol to the Convention on the protection of the Communities' financial interests and the draft protocol, drawn up on the basis of Article K.3 of the Treaty on European Union, to the Convention on the Protection of the European Communities' financial interests (officials and Members) (C4-0607/95 - 12549/95 - 96/0902(CNS))

(Consultation procedure)

The European Parliament,

- having regard to the Council draft (12549/95 - 96/902(CNS)),

- having been consulted by the Council pursuant to Article K.6, second paragraph, of the Treaty on European Union (C4-0607/95),

- having regard to the report of the Committee on Civil Liberties and Internal Affairs and the opinions of the Committee on Legal Affairs and Citizens' Rights and the Committee on Budgets (A4-0130/96),

1. Approves the Council draft, subject to Parliament's amendments;

2. Calls on the Council to notify Parliament should it intend to depart from the text approved by Parliament;

3. Instructs its President to forward this opinion to the Council and the Commission.