39 Amendments of Cristian TERHEŞ related to 2023/0135(COD)
Amendment 26 #
Proposal for a directive
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
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, ambassadors and diplomatic personnel, high ranking military officers and heads of intelligence services, as well as high ranking prosecutors, such as general prosecutors and chief prosecutors. .
Amendment 32 #
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, including to file yearly, under the penalty of perjury, a declaration of assets and of interests.
Amendment 43 #
Proposal for a directive
Article 3 – paragraph 4 – point b
Article 3 – paragraph 4 – point b
(b) members of law enforcement, intelligence agencies and the judiciary, including measures relating to their appointment and conduct, and by ensuring adequate remuneration and equitable pay scales.
Amendment 149 #
Proposal for a directive
Recital 6
Recital 6
(6) Member States should have in place bodies or units specialised in the repressvention and specialised in the preventrepression 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, such as, first and foremost the respect of fundamental rights, national constitutional provisions, the right to a fair trial, including having the independence, impartiality, resources and powers that are necessary to ensure the propefair administration of their tasks.
Amendment 152 #
Proposal for a directive
Recital 8
Recital 8
(8) Taking account of the evoluOECD 2008 statement that 'there are as many different definitions of corruption as thereats and the legal obligations on the Union and Member States under international law, as well as the development of national legal frameworks, the definition of corruption should be further approximated in all Member States so that it covers corrupt conduct more comprehensively. are manifestations of the problem itself' it should be retained that 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, diversion of public funds and illicit enrichment1a. _________________ 1a Stepping up the EU's efforts to tackle corruption, Cost of Non Europe Report, EPRS | European Parliamentary Research Service, JAN 2023, page 15 (UNODC, n.d.)
Amendment 154 #
Proposal for a directive
Recital 9
Recital 9
(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, including ambassadors and diplomatic personnel, military and intelligence services' personnel, judges and prosecutors, 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.
Amendment 168 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) The implementation of this Directive must take into consideration the Venice Commission Report on the Relationship Between Political and Criminal Ministerial Responsability, 8-9 March 20232a, which states that criminal sanctions should be used as the last resort (ultima ratio). 2a. 2a https://www.venice.coe.int/webforms/docu ments/default.aspx?pdffile=CDL- AD(2013)001-e
Amendment 169 #
Proposal for a directive
Recital 10 b (new)
Recital 10 b (new)
(10b) The implementation of this Directive should take into consideration that following the ECtHR Liivik v. Estonia of 25 June 2009, the Venice Commission considers, that criminal provisions prohibiting “abuse of office”, “misuse of powers”, “excess of authority” or similar offences are to be found in a number of European legal systems, and the Venice Commission recognises that there may be a perceived need for such general clauses, which may cover the many various forms of grave offences that public officials may commit, and which it is not easy to regulate in detail in advance. At the same time, the Commission holds that such blanket criminal provisions are deeply problematic, both with regard to the qualitative requirements of Article 7 of the ECHR and other basic requirements under the rule of law, such as predictability and legal certainty, and that they are also particularly vulnerable to political misuse3a. _________________ 3a 3a https://www.venice.coe.int/webforms/docu ments/default.aspx?pdffile=CDL- AD(2013)001-e
Amendment 171 #
Proposal for a directive
Recital 11
Recital 11
(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 partyfor misappropriation to be criminal, it should lead to an advantage for the public official or a third party or cause a certain financial damage or a severe violation of the legitimate rights or interests of a natural or legal person.
Amendment 172 #
Proposal for a directive
Recital 12
Recital 12
(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 unequivocally 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 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.
Amendment 174 #
Proposal for a directive
Recital 13
Recital 13
(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 if it leads to an advantage for the public official or a third party or causes a certain financial damage or a severe violation of the legitimate rights or interests of a natural or legal person .
Amendment 207 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
1. ‘prevention of corruption’ refers to the detection and elimination of the causes of and conditions for corruption, through development and implementation of a rule of law system of appropriate measures, as well as deterrence against corruption- related acts.
Amendment 208 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
1a. primary legislation means any normative act wich has the force of law according to the Constitution of the Member States
Amendment 209 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 b (new)
Article 2 – paragraph 1 – point 1 b (new)
1b. secondary legislation means administrative normative acts implementing the primary legislation
Amendment 210 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 c (new)
Article 2 – paragraph 1 – point 1 c (new)
1c. a promise is a firm agreement to perform an act, refrain from acting or make a payment or delivery;
Amendment 211 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 d (new)
Article 2 – paragraph 1 – point 1 d (new)
1d. unequivocal promise is a precisely and clearly expressed. not implied promise
Amendment 224 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
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. breach of a statutory duty arising from national primary legislation
Amendment 231 #
Proposal for a directive
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
8. ‘high level officials’ are heads of state, heads of central and regional government, members of central and regional government, Ambassadors 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.
Amendment 283 #
Proposal for a directive
Article 3 – paragraph 6
Article 3 – paragraph 6
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 activitieswareness-raising campaigns with a view to prevent corruption.
Amendment 299 #
Proposal for a directive
Article 4 – paragraph 3 – point a
Article 4 – paragraph 3 – point a
(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 propefair administration of their tasks;
Amendment 301 #
Proposal for a directive
Article 4 – paragraph 3 – point a a (new)
Article 4 – paragraph 3 – point a a (new)
(aa) are established by law, respect the fundamental rights, the right to a fair trial, are independent and impartial
Amendment 305 #
Proposal for a directive
Article 4 – paragraph 3 – point c
Article 4 – paragraph 3 – point c
(c) provide public access to relevant information on the exercise of their activities, with due regard for the protection of personal data, access of parties to the file and the confidentiality of investigations;
Amendment 306 #
Proposal for a directive
Article 4 – paragraph 3 – point d
Article 4 – paragraph 3 – point d
(d) operate and take decisions in accordance with transparent procedures established by law, repecting the principle of equitable, impartial and independent administration of justice with the effect of ensuring integrity and accountability.
Amendment 317 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
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 fair, proportionate, timely and appropriate manner to any suspiciouspotential corruption activityies.
Amendment 324 #
Proposal for a directive
Article 7 – paragraph 1 – point a
Article 7 – paragraph 1 – point a
(a) the unequivocal 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);
Amendment 328 #
Proposal for a directive
Article 7 – paragraph 1 – point b
Article 7 – paragraph 1 – point b
(b) the request or receipt by a public official, directly or through an intermediary, of an advantage of any kind or the unequivocal acceptance of a 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).
Amendment 332 #
Proposal for a directive
Article 8 – paragraph 1 – point a
Article 8 – paragraph 1 – point a
(a) the unequivocal 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 as foreseen in the national primary legislation (active bribery);
Amendment 335 #
Proposal for a directive
Article 8 – paragraph 1 – point b
Article 8 – paragraph 1 – point b
(b) the request or receipt by a person, directly or through an intermediary, of an undue advantage of any kind or the acceptance of an unequivocal 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 as foreseen in the national primary legislation (passive bribery).
Amendment 340 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(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 ientendrusted;
Amendment 342 #
Proposal for a directive
Article 9 – paragraph 1 – point b
Article 9 – paragraph 1 – point b
(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 ientendrusted.
Amendment 345 #
Proposal for a directive
Article 10 – paragraph 1 – point a
Article 10 – paragraph 1 – point a
(a) the unequivocal 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;
Amendment 348 #
Proposal for a directive
Article 10 – paragraph 1 – point b
Article 10 – paragraph 1 – point b
(b) the request or receipt, directly or through an intermediary, of an undue advantage of any kind or the unequivocal acceptance of a 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.
Amendment 353 #
Proposal for a directive
Article 11 – paragraph 1 – point 1
Article 11 – paragraph 1 – point 1
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 or causes damage of more than 10,000 euros or a severe violation of the legitimate rights or interests of a natural or legal person;
Amendment 356 #
Proposal for a directive
Article 11 – paragraph 1 – point 2
Article 11 – paragraph 1 – point 2
2. the performance of or failure to perform an act, in breach of duties as foreseen by the primary national legislation, 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 or causes damage of more than 10,000 euros or a severe violation of the legitimate rights or interests of a natural or legal person.
Amendment 361 #
Proposal for a directive
Article 12 – paragraph 1 – point 1
Article 12 – paragraph 1 – point 1
1. the use, directly or through an intermediary, of physical force, threats or intimidation or the unequivocal 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;
Amendment 377 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
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. Member States shall take the necessary measures to ensure that principles such as the rights to a fair trial, including proper rights of defence, presumption of innocence, the independence and impartiality of the judiciary, as well as the principle of “no punishment without law” are at all times respected.
Amendment 439 #
Proposal for a directive
Article 22 – paragraph 2
Article 22 – paragraph 2
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, and their right to a fair trial is respected.
Amendment 442 #
Proposal for a directive
Article 23 – paragraph 1
Article 23 – paragraph 1
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. Member States shall take all necessary measures to ensure the right to a fair trial and remedy, the right to defence and the presumption of innocence are at all times respected.
Amendment 456 #
Proposal for a directive
Article 24 – paragraph 1 a (new)
Article 24 – paragraph 1 a (new)
Member States' authorities and Europol, Eurojust, the European Public Prosecutor's Office, the European Anti- Fraud Office (OLAF) and the Commission shall take all necessary measures to ensure the right to a fair trial and remedy, the right to defence and the presumption of innocence are at all times respected.