The Commission presented a report assessing the extent to which the Member States have taken the necessary measures in order to comply with Council Framework Decision 2003/568/JHA on combating corruption in the private sector.

The aim being to ensure that: (i) both active and passive corruption in the private sector are defined as a criminal offence in all EU Member States; (ii) legal persons (i.e. business entities, non-governmental organisations or public organisations) may also be held responsible for such offences; and (iii) these offences incur effective, proportionate and dissuasive penalties.

Since the Commission's last implementation reports in 2007 and 2011, a number of major criminal law reforms have taken place in some Member States. Furthermore, the criminalisation of active and passive bribery, including in the private sector, is mandatory under the Council of Europe’s Criminal Law Convention of Corruption and the United Nations Convention against Corruption (UNCAC), to which all Member States are parties.

These developments have prompted Member States to further align national implementing measures to international and European standards. This third implementation report provides an update on the latest developments.

The description and analysis in this report are based on the information provided by the Member States by 1 August 2018. In addition, in 2014, the Commission gathered official statistical data on the treatment of corruption cases in various stages of the criminal procedure in Member States.

The main conclusions of the report are as follows:

Reforms in the Member States

Information received from the Member States indicates that major reforms have taken place in many of them since 2011. For example:

- Greece amended its criminal provisions on corruption in 2014, and Bulgaria, Germany, Estonia and Spain did so in 2015;

- Belgium amended its Criminal Code in 2016 and 2018 and Italy did so in 2017;

- Hungary adopted a new Criminal Code in 2012 and revised all the related legal instruments;

- Slovakia adopted a law on the liability of legal persons in 2016.

Transposition

National transposition in all Member States was assessed on the basis of a single criterion, namely whether the provisions of the Framework Decision are covered by national legislation. Overall, the level of transposition of the Framework Decision has improved significantly since the 2011 Implementation Report. The Framework Decision requires Member States to take the necessary measures to ensure that active and passive corruption in the private sector is punishable by a maximum penalty of at least 1 to 3 years' imprisonment. The Commission concludes that the threshold for penalties is transposed into the legislation of all Member States.

Difficulties of implementation

The report indicates that some provisions of the Framework Decision have been difficult to implement in some Member States:

- accepting the promise of a bribe is not covered in the national legislation of all Member States, and in some countries the committing of an offence by someone in a directing or working role is limited to specific positions or powers:

- undue advantage offered or given to third parties does not seem to be fully covered in a small number of Member States. Undue advantage is also a concept which is defined in a variety of ways, sometimes covering more than what is strictly necessary, but other times omitting important elements;

- some Member States included a limitation to the scope of the private sector corruption offence, either by specifying certain conditions in which the offence may be committed, or by limiting the scope of the offence to companies and other for profit entities, thereby omitting non-profit organisations.

Enforcing criminal measures

Member States' efforts must now be extended to enforcing these criminal measures. Only 13Member States (AT, BE, BG, DE, HR, HU, IT, LT, LU, LU, PL, PT, SL and UK) provided data on bribery in the private sector, among the 22 Member States that provided statistics in the 2018 update for the 2014 to 2016 reference years. There have been very few convictions for private sector corruption in the reported years.

Prospects for the future

The Commission will continue to support Member States in transposing, implementing and enforcing EU legislation to a satisfactory level. This includes:

- checking that national measures fully comply with the corresponding provisions in the Framework Decision;

- organising meetings with Member States’ national authorities and facilitating the development and exchange of best practices in specific areas.

Lastly, the Commission will continue to collect criminal statistics covering private sector corruption.

COM(2019)0355
EUR-Lex

COM(2011)0309

In accordance with Council Framework Decision 2003/568/JHA on combating corruption in the private sector, the Commission presents a report on the transposition and implementation of the Framework Decision. It recalls that in 2007 the Commission completed the first implementation report but that the answers provided by Member States indicated that the level of implementation was very poor. In 2007 only two Member States had correctly transposed its provisions into their domestic legislation.

Since then, the Stockholm Programme has been adopted, calling upon the Commission to develop a comprehensive anti-corruption policy and establish a mechanism to evaluate Member States' efforts to fight corruption. It therefore seemed necessary to evaluate the implementation of this important instrument in Member States.

At the time of drafting, all Member States except Spain, Denmark and Lithuania had notified their transposition measures. Spain did not provide any information in 2007 or for the current report. In the absence of new information, the evaluation of Denmark and Lithuania remains the same as for the 2007 report.

The report concentrates on Articles 2 to 7 . The evaluation criteria adopted by the Commission for this report are the general criteria adopted in 2001 to evaluate the implementation of framework decisions (practical effectiveness, clarity and legal certainty, full application and compliance with the time limit for transposition).

The Commission notes that the assessment is limited to the transposition of specific provisions into the domestic legislation. Due to lack of comparable statistics and figures on cases of corruption in the private sector, it was not possible to assess the practical impact of the transposition of the provisions of this Framework Decision .

As far as the transposition itself is concerned, it is still not satisfactory , despite some progress achieved. The main problem lies in weak transposition of some elements of Articles 2 and 5.

Article 2: active and passive corruption in the private sector: Article 2 is a key provision of the Framework Decision. It defines offences involving active and passive corruption, when carried out in the course of business activities . The scope of application of Article 2 includes business activities in both profit and non-profit entities.

However, Member States could declare that they would limit the scope to conduct involving a distortion of competition in relation to the purchase of goods or commercial services. The declarations were valid till June 2010. Since the Council did not take a decision to extend their validity, the Commission assumes that they are no longer valid, so the Member States that have submitted such a declaration will have to amend their national legislation. As in 2007, implementation of Article 2 proved highly problematic for Member States. In 2007, only 2 Member States had correctly transposed all elements of the offence. Currently 9 Member States have correctly transposed all of them. Member States found it particularly difficult to capture the full meaning of the phrases 'directly or through an intermediary' and 'a person who in any capacity directs or work' in their national legislation.

Article 5: Article 5 provides for the liability of legal persons in relation to both active and passive corruption . In 2007 only five Member States had fully transposed Article 5. While there has been significant progress since 2007, overall poor transposition of Article 5 is still a matter of concern for the Commission. 15 Member States have fully transposed Article 5 and 8 Member States have transposed it partly. The assessment of the transposition of Article was mainly carried out against the national criminal law provisions, as notified by the Member States. Although aware that the sanctions referred to in Article 5 may also be of administrative or civil nature, the current assessment relied only on the available data notified by the Member States.

In conclusion , the Commission recalls the importance of fighting corruption in the private sector and calls upon Member States to adopt without delay all the necessary measures in this regard. The Commission invites all Member States to consider this report and to provide all further relevant information to the Commission and to the Council. In addition, the Commission invites Member States that have since adopted new legislation to notify these measures to the Commission and to the Council.

COM(2011)0309
EUR-Lex

SEC(2011)0663
EUR-Lex

The Council adopted the Council Framework Decision 2003/568/JHA on combating corruption in the private sector pursuant to Title VI of the Treaty on European Union. The principal requirement of the legislation is that Member States criminalise two types of conduct, which may be summarised as follows (Article 2 of the Framework Decision refers):

- promising, offering or giving a bribe to a person in the private sector in order that he or she do something or refrain from doing something, in breach of that person's duties;

- requesting or receiving a bribe, or the promise of such, while working in the private sector, in order to do something, or refrain from doing something, in breach of one's duties.

Council Framework Decisions are binding upon the Member States as to the result to be achieved, but leave to national authorities the choice of form and methods. They do not entail direct effect. As the Commission has no authority under the Third Pillar to initiate an infringement procedure against a Member State, the nature and purpose of this report is limited to a factual evaluation of the implementation measures taken.

The report concentrates on Articles 1 to 7, and records the Declarations made by Member States under Articles 2 and 7. Member States were required to take the necessary measures to comply with the provisions of the Framework Decision before 22 July 2005, and to transmit to the Council and the Commission the text of the provisions transposing into national law the obligations imposed on them. Two Member States (the Netherlands and Finland) issued their responses before the due date. A further 21 have subsequently responded, of which Czech Republic supplied its draft legislation (except Articles 5 and 6), while Greece and Spain stated that they had legislation under preparation but without supplying any text to date. Cyprus and Malta have not responded to date. Many Member States provided some form of cover note in which they drew attention to any Declarations they wished to make, others used the opportunity of supplying a cover note and concordance table in which they explained the general and particular approach taken in their legislation, supported by relevant legislative references. As regards the obligation to transmit the text of their transposing provisions, Denmark did not provide any text to support what was nevertheless a very detailed commentary, while a number of other Member States made partial omissions. The Report therefore provides an analysis of the transposition commentaries and legislation provided by 20 Member States, and some comments on the draft legislation submitted by the Czech Republic. The Articles presenting the most problems are as follows:

Article 1 – Definitions: f ew Member States gave even a partial response to this Article. In the absence of such information, it is not possible for the Commission to be certain that the Framework Decision has been correctly transposed – for example, information on the definition of a "legal person" is essential in relation to analysing the transposition of Article 5.

Article 2 – Active and passive corruption in the private sector: this is the key Article of the 2003 Framework Decision. It not only combines the definitions and offences relating to active and passive corruption respectively, but broadens the scope of the offences beyond the internal market, unless a Member State explicitly makes a Declaration retaining such a limit. Article 2 proved highly problematic for most of the 20 Member States. Only two (BE, UK) correctly transposed all its elements. However, with the exception of one requirement within Article 2(1), PT and IE otherwise did so too. While it can be said that Member States have to some extent criminalised active and passive corruption in the private sector, there are a number of issues which States failed to address adequately. This is a grave concern, as the omitted elements mean that the legislation could be easily circumvented. Member States are requested to address these gaps as a matter of urgency. The main difficulties relate to the requirement on Member States to establish criminal offences of active and passive corruption in relation to business activities in the private sector a s set out in Article 2 (1), and are fully described in the report. Some Member States have focused only on the active corruption offence. All 20 Member States provide for direct corruption, but some have either omitted intermediaries or changed the focus of the offence to provide for the liability of the intermediary instead of the person using the intermediary. In addition, some Member States do not address intangible benefits. With regard to corruption involving non-profit entities , there was often a lack of information on which to base any analysis. Where possible, if relevant material could be found elsewhere, eg in relation to Article 5 on liability of legal persons, this was used. Nevertheless, the situation in 10 Member States (AT, FI, HU, IT, LT, LU, LV, PL, SE, SK) remains unclear.

Article 2(3) of the Framework Decision provides that a Member State may limit the scope of the criminal offences of active and passive corruption to conduct involving a distortion of competition, but requires that it provide a Declaration to this effect. The validity of such a Declaration is limited to five years from 22 July 2005, and the Council is required to review, before22 July 2010, whether or not such

Declarations may be renewed. Such Declarations were lodged by DE, IT and PL. A Declaration was also lodged by AT, to the effect that it availed of the exception clause under Article 2 (3) in respect of any aspect of Article 2 which it had not transposed. In the Commission's view, Austria's approach goes beyond the scope of Article 2(3), and Austria is invited to reconsider its position.

Articles 5 and 6 – Liability of and penalties for legal persons: t he issue of legal persons' liability remains a difficult one for certain Member States. Three Member States (AT, IT, SK) either have yet to complete legislation on this topic or such legislation has been rejected by Parliament, in the case of the Slovak Republic, and hence have failed to transpose both Articles 5 and 6. Only 5 Member States (LT, LU, NL, PL, SI) have fully transposed Article 5. Because both Articles 5 and 6 deal with legal persons, the difficulties and gaps in Member States' legislation, or in the information they supplied for Article 5 impacted on the rate of transposition of Article 6.

Article 7 – Jurisdiction: d ue to the unevenness of Member States' replies in relation to this Article, only an incomplete picture of its transposition could be prepared by the Commission. Member States are invited to provide outstanding information in due course, to assist in the preparation of any subsequent Report. On the basis of the information supplied, only 3 Member States (DK, DE, UK) can be said to have transposed this Article. There was a lack of information specifically with regard to offences occurring in part on the territory of a Member State. It was also clear that many Member States have not addressed in their legislation the option at Article 7 (1) (c) of taking jurisdiction over offences committed for the benefit of a legal person that has its head office in its territory and have either furnished a Declaration opting out or have not provided information at all within their reply.

The Commission takes this opportunity to draw attention to two issues which will need to be addressed: - 'Reformattage': the Commission Communication on the implications of the Court's Judgement of 13 September 2005 (Case C-176/03 Commission v Council) (see COM(2005)0583), indicates that the Council Framework Decision is one of the instruments which is affected by this judgement. The latter would indicate that the legal base of the Council Framework Decision requires amendment. The approach to be adopted will be addressed at a future date.

- Review of Article 2 by Council: Member States' Declarations made under Article 2 (3), are due to expire on 21 July 2010, and the Council must decide whether to renew them.

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