Convention against corruption involving public officials

SUMMARY OF:

Convention on the fight against corruption involving EU officials or officials of EU countries

Council Act drawing up the Convention on the fight against corruption involving EU officials or officials of EU countries

WHAT IS THE AIM OF THE CONVENTION AND OF THE ACT?

The convention:
- aims to ensure that each EU country takes the necessary measures to criminalise corruption involving public officials*;
- is designed to fight corruption involving European officials* or national officials* of EU countries and to strengthen judicial cooperation between the EU countries in this fight.
The act marks the agreement of the Council to draw up the convention.

KEY POINTS

Under the convention, each EU country must take the necessary measures to criminalise both active* and passive corruption* 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, EU countries must allow heads of businesses, or any persons having 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 EU country 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 EU country in question.
If any procedure in connection with an offence in accordance with the obligations arising out of the convention concerns at least 2 EU countries, those countries must cooperate in the investigation and prosecution, and in carrying out the punishment imposed.
EU countries 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.
EU countries may adopt internal legal arrangements which go beyond the obligations set out in the convention.
In the event of a dispute between EU countries 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 6 months, 1 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 an EU country and the European Commission.

DATE OF ENTRY INTO FORCE

The convention entered into force on 28 September 2005 and all EU countries have acceded to it.

BACKGROUND

Criminalising active and passive corruption has been covered by a number of international and European instruments over the past 2 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 14 December 2005. By December 2014, all EU countries had ratified the UNCAC and the EU itself became a contracting party in 2008 (Decision 2008/801/EC).
The Organisation for Economic Cooperation and Development 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 aiming 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.

Note: Although most individual EU countries are parties to these to these latter conventions (the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the Criminal Law Convention on Corruption), the EU itself is not a party.

For more information, see:

Corruption (European Commission).

KEY TERMS

Public official: any European or national official, including any national official of another EU country.

European official: any person who is an official or other contracted employee within the meaning of the Staff Regulations of Officials of the EU, as well as any person seconded to the EU by the EU countries or by any public or private body who carries out functions equivalent to those performed by EU officials or other servants.

National official: official or public officer as defined by the national law of the EU country in which the person in question performs that function for the purposes of application of the criminal law of that EU country.

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 himself (or herself) or for a third party, for him (or her) to act or refrain from acting in accordance with his (or her) duty or in the exercise of his (or her) functions in breach of his (or her) 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 himself (or herself) or for a third party, or accepts a promise of such an advantage, to act or refrain from acting in accordance with his (or her) duty or in the exercise of his (or her) functions in breach of his (or her) 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, 25.6.1997, pp. 2-11)

Council Act of 26 May 1997 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, 25.6.1997, p. 1)