The purpose of this report is to check progress made towards the objective of effective and equivalent protection of the EC’s financial interests in the EU as a whole. It examines the state of play regarding the transposition of the PFI instruments in the EU, in light of the conclusions of the first report, and it examines the legislative situation in the other Member States – whether they have ratified all the PFI instruments or not.

To recall, the first report (presented in October 2004) announced that the Commission intended to submit a follow-up report on implementation in the whole of the EU. Although ratification is not yet completed, neither in the EU-15 nor in the Member States which joined in 2004 and 2007, the Commission considers that, ten years after the signature of the 2 nd Protocol and three years after enlargement, the time has come take a fresh look at the national implementing measures and to consider the impact of the PFI instruments as a whole.

As a general assessment, the report finds that the harmonisation objective of the PFI instruments has still not been fully achieved in all 27 Member States – neither formally nor materially. The Commission regrets that, due to the lack of ratification by Italy, the 2 nd Protocol has still not entered into force there and that ratification by Member States which joined the EU on 1 May 2004 has still not been finalised. De facto , the current system of protection, based on conventions, creates a multi-speed situation and results in a mixture of different legal situations in terms of the binding effect of the PFI instruments in the individual Member States’ internal legal order. Formally, therefore, this situation does not produce the desired effective and dissuasive penal protection.

Concerning material compliance, the Commission’s analysis finds that five of the Member State , which have ratified the PFI instruments now appear to have taken all the measures needed to comply in a satisfactory way with the PFI instruments. Loopholes which allow offences to go unpunished persist though. The need for a Directive on criminal-law protection of the Community’s financial interest remains. As such the report remarks that the Commission will examine further possible approaches to meet this objectives opened up by the reform of the EU/EC Treaty.

Given that formal compliance is yet to be achieved, the Commission urges those Member States which, more than ten years after the adoption of the last of the PFI instruments and more that three years after accession, have still not done so, to ratify all the PFI instruments without delay. All Member States are invited to step up their efforts to reinforce their national criminal legislation to protect the Community’s financial interests.

As a follow-up to this report, the Member States are urged to ratify the 2 nd Protocol without delay. Due to its non-ratification, Italy is indirectly impeding completion of the legal framework established by the PFI instruments, not only as regards the liability of legal persons, but also with regard to the provisions on information exchange. The report also lists seven Member States that still show serious shortcoming in the implementation of the other PFI instruments. They are: Belgium; Germany; France; Ireland; Italy; Luxembourg; and Austria. The Commission will address these seven Member States to gather their views on their shortcoming. Should diverging positions be revealed, the Commission may initiate procedures under Article 8 of the PFI Convention. As far as the Member States, who joined in May 2005 and January 2007 are concerned, they are invited to meet their commitments under the Accession Treaties. The Czech Republic, Hungary, Malta and Poland, together with Estonia, should proceed as fast as possible with the accession of the PFI instruments, to which they have not yet acceded.

A number of Protocols have been developed since 1995 to protect the Community's financial interests. They are the First Protocol of 1996, the ECJ Protocol, also agreed in 1996 and the Second Protocol agreed in 1997. Collectively they are referred to as the PFI Instruments. The purpose of the Commission report on the PFI Instruments is to assess Member State implementation of the PFI provisions and to offer suggestions for improvement. Assessing the implementation process of the PFI provisions in the new Member States will be dealt with separately.

The main thrust of this Commission Report is to focus on PFI implementation and ratification in the 15 Member States, to examine in detail the provisions in the PFI instruments relating to criminal or procedural law and not to take account of provisions that require no implementation such as those on co-operation and data protection. Prior to beginning the assessment of provisions the Report makes note of the fact that, although the PFI instruments fall under the third pillar, there is considerable overlap with the EU Treaties and in particular Article 280 thereof.

In its general assessment the Report notes that, at first sight, national provisions adopted in the Member States show that the level of effective criminal-law protection of the EC's financial interests has increased. Concerning the definition of offences, national systems have grown closer to one another and penalties are usually set at sufficiently high levels so as not impede mutual assistance. Further, the principle of assimilation, has found some recognition among Member States. Yet, in spite of some progress, the Commission concludes that none of the Member States appear to have taken all the measures needed to comply fully with the PFI instruments. They are particularly concerned that gaps and loopholes in the law allow offences to go unpunished. Moreover, the evaluation procedure uncovered considerable difference between the Member States as regards criminal penalties. This gap makes the Commission question whether the penalties imposed always meet the Court of Justice criteria of being effective, proportionate and dissuasive. The Commission also expresses considerable concern that the level of protection being awarded to the Community's financial interests are not advanced enough to exclude any risk of leaving unpunished, or of not deterring, those criminals intent on defrauding the EU.

On the basis of this analysis the Commission makes a number of recommendations. They are requesting the Member States to:

- Step up their efforts to reinforce national criminal legislation, in particular with regard to the complete criminalisation of fraudulent conduct and criminal liability in a corporate context.

- Reconsider their reservations stated when ratifying the PFI instruments and

- Implement and ratify the second Protocol without delay.

Significantly, the Commission further recommends that the Council work towards adopting a Common Position on the amended proposal for a Directive on the criminal-law protection of the Community's financial interests. This, the Commission believes, would bring provisions regarding the protection of the Community's financial interests under the umbrella of the first pillar and offer the EU greater financial security. Other measures being mooted by the Commission include a possible approach offered by Treaty amendments including amendments to 280 of the EC Treaty under the Draft Constitutional Treaty. This could, for example, include the option of establishing a "European Financial Public Prosecutor's Office".

During the debate the rapporteur, Mr Bontempi, called for the adoption of a Community directive instead of a convention between the 15 Member States. The Commissioner responsible, Mrs Anita Gradin, stated the Commission agreed with Parliament insofar as the substance was concerned; it could not, however, agree to withdraw its proposal for a convention as that would lead to a deadlock in the Council.