PART 1 Article 2 – Active and passive corruption in the private sector

PART 2 Article 7 – Jurisdiction

PART 1 – Article 2 – Active and passive corruption in the private sector

1.1. Article 2 – Active and passive corruption in the private sector 1.1.1. General comments

Article 2 is a key Article of the 2003 Framework Decision (FD). It defines in detail offences relating to active and passive corruption, when carried out in the course of business activities. The scope of application of Article 2(1) includes business activities in both profit and non-profit entities, reflecting the general expansion of scope beyond the internal market.

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.

Such a declaration was entered by DE, AT, IT and PL.

1.1.2. Summary table of transposing legislation adopted by Member States

MS || Legislation || Measures which appeared relevant to Commission's analysis (where different from MS' citations)

BE || Art. 504 bis, §1 and §2, Criminal Code ||

BG || Art. 225 c Criminal code ||

CZ || Section 331, 333, 334 (1)(3) Act 40/2009 Criminal Code, section160 161 and section 162, 162a Act 140/1961 Crime Act, section 332 Act 40/2009 Criminal Code || Section 162 Act 140/1961 Crime Act

DK || No reply || Section 299(2) Criminal Code (2007 report)

DE || § 299 stGB Criminal code ||

EE || Art. 288, 293-298 Criminal Code, art. 393, 394 ||

IE || Section 1 of the 1906 Act, as inserted by the Act of 2001 ||

EL || Art. 5 Law 3560/2007 ||

ES || No reply ||

FR || Art. 445-1 art. 445-2 Criminal code ||

IT || Art. 2635 civil code ||

CY || Section 4 of the Law 23 (III)/2000 ratifying the Council of Europe Criminal Law Convention on Corruption (Section 3 of the Law on prevention of corruption 161 refers to public sector corruption) ||

LV || Chapter XIX "criminal offences of an economic nature" special part criminal code ||

LT || No reply || Articles 225-227, 230, Criminal Code (2007 report)

LU || No specific provisions forwarded || Art. 310, 310-1 Criminal Code

HU || Art. 251,252,254 Act IV of 1978 on the Criminal Code ||

MT || Art. 121(3), art. 121D Criminal Code || Art.112, 115, 120(1), Criminal Code

NL || Art. 46a and Art. 328 ter, criminal code ||

AT || §§ 168 c, d and e, §§153, 153a and 304, 305, 306, 307, 308 of the Criminal Code and §10 Law of Unfair Competition (UWG) || Section 2, §3 of the Verbandsverantwortlichkeitsgesetz [Law on the liability of associations]

PL || Article 296a(1) Criminal Code || Articles 115, 296a(2) Criminal Code

PT || Art. 8 art. 9 law. 20/2008 of 21 April 2008 ||

RO || Art. 254,255,258 Criminal code Art. 147,145, Criminal Code (definitions) ||

SI || Art. 241, 242 Criminal Code || Art.20(1), Criminal Code.

SK || Section 131(3), 328, 329, 330, 331, 332, 333, 334, 335, 336 Criminal code. ||

FI || Chapter 30 section 7 and 8 Criminal code ||

SE || Chapter 17 – Section 7 and Chapter 20 – section 2, Criminal Code ||

UK || Section 1, Prevention of Corruption Act,1906 || Bribery Act 2010

1.1.3. Summary account of the transposition

As in 2007, implementation of the Article 2 proved highly problematic for Member States. In 2007, only 2 Member States (BE, UK) correctly transposed every element of the offence. Currently 9 Member States (BE, BG, CZ, FR, IE, CY, PT, FI, UK) have correctly transposed all of them.

There was a particular difficulty for Member States in capturing 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.

The seven component requirements of the Article 2(1) are listed below.

Article 2(1)(a) – active corruption || Article 2(1)(b) – passive corruption

· "Promising, offering or giving" · "Directly or through an intermediary" · "A person who in any capacity directs or works" · "For a private-sector entity" · "An undue advantage of any kind" · "For that person or for a third party" · "Perform or refrain from performing any act, in breach of that person's duties" || · "Directly or through an intermediary" · "Requesting or receiving or accepting the promise of" · "An undue advantage of any kind" · "For oneself or for a third party" · "While in any capacity directing or working" · "For a private-sector entity" · "Perform or refrain from performing any act, in breach of that person's duties"

1.1.4. Detailed analysis 1.1.4.1. Article 2(1)(a) – active corruption

12 Member States (BE, BG, CZ, DK, IE, EL, FR, CY, PT, FI, SI, UK) meet seven requirements of the definition of active corruption.

The most problematic elements of transposing Article2 (1)(a) appear to be covering the full scope of "promising, offering or giving" and "perform or refrain from performing any act, in breach of that person's duties."

NL limited the offence to instances in which the employer or principal was not informed of this case. LU requires that the employer is not aware and does not approve the criminal behaviour. DE, AT, IT and PL had limited the scope of application of this requirement in line with the Article 2(3). DE limited the scope to acts relating to purchase of goods or commercial services; AT limited the offence to "legal acts" and PL limited the offence to behaviour resulting in losses, unfair competition or inadmissible preferential action. DE informed that new legislation to meet this requirement of the Framework Decision is pending.

1.1.4.2. In addition the Commission notes the following problems in transposition:

– EE does not cover offering, intermediaries, performing/refraining from performing of the duties in breach of one’s duties

– IT does not cover offering of a bribe, intermediaries, persons who work in the private sector, as well as third party to whom the bribe is destined

– LV does not cover the element of promising a bribe, it also establishes a limitation on the offence to cases when offer/promise was accepted. A responsible employee ... or a person authorised", as noted in the 2007 assessment, does not seem to include all employees, and thus does not fully address the wording "any person who in any capacity directs or works(…)".

– HU does not refer to “offering” an advantage or to “directly or indirectly”

– RO does not make reference to a third part advantage

– SK does not address specifically offering of the bribe or advantage.

1.1.4.3. Article 2(1) (b) – passive corruption

12 Member States (BE, BG, CZ, IE, FR, CY, MT, PT, SI, SK, FI, UK) are fully compliant with the Article 2(1) (b).

In addition, the following was noted:

– DE makes a declaration which is not valid anymore

– EE does not refer to intermediary, to “requesting” a bribe and undue advantage

– EL does not cover the third party advantage

– IT does not cover intermediaries, third party advantage, “working” and “requesting” a bribe

– LV – acceptance of an offer is not included in LV legislation

– LU limits the scope of this article (see Article 2(1) (a))

– HU does not address "directly or indirectly"

– NL – advantage is to be concealed from the employer (narrower than the Framework Decision)

– AT – more information is needed on intermediaries. In addition, "servant/agent" of a private sector entity does not seem to cover those who direct such an entity.

1.1.4.4. Article 2(2)

Article 2(2) establishes that Article 2(1) applies to business activities in both profit and non-profit entities. Some Member States make explicit reference to the inclusion of non-profit entities in their legislation while others have worded their legislation in such a broad way that non-profit entities are not excluded. Overall, 16 Member States transposed fully this provision (BE, BG, CZ, DE, EE, IE, FR, CY, HU, MT, NL, PL, PT, RO, FI, UK). In some cases, the wording of the legislation appears broad enough to cover this provision, but additional explanation would be necessary (EL, IT, LV, MT, AT, SK, SE).

1.1.4.5. Article 2(3)

Under Article 2(3), four Member States made a Declaration (DE, IT, AT, PL) and submitted it already for the previous report. The declaration was valid until 22 July 2010 (Article 2(4) of the Framework Decision). Under Article 2(5) of the Framework Decision, the Council was to review Article 2 in due time before 22 July 2010 with a view to considering whether it is to be possible to renew declarations made under paragraph 3. As the Council did not take the decision to extend the possibility of renewing the declarations, the Commission considers that the declarations expired and that Member States need to amend their legislation accordingly.

1.1.4.6. Summary table of transposition of Article 2

MS || Article 2 (1) (a) || Article 2 (1) (b) || Article 2.2 || Article 2.3 || Comments

BE || Meets the requirements || Meets the requirements || Meets the requirements || Does not make a Declaration || BE has transposed Article 2

BG || Meets the requirements || Meets the requirements || Meets the requirements || Does not make a Declaration || BG has transposed Article 2

CZ || Meets the requirements || Meets the requirements || Meets the requirements || Does not make a Declaration || CZ has transposed Article 2

DK (2007) || Meets the requirements || Meets partly the requirements || Meets the requirements || Does not make a Declaration || DK has partly transposed Article 2

DE || Meets partly the requirements || Meets partly the requirements || Meets the requirements || Declaration expired 22 July 2010. || DE has partly transposed Article 2.

EE || Meets partly the requirements || Meets partly the requirements || Meets the requirements || Does not make a Declaration || EE has partly transposed Article 2

IE || Meets the requirements || Meets the requirements || Meets the requirements || Does not make a declaration || IE has not fully transposed Article 2

EL || Meets the requirements || Meets partly the requirements || Insufficient information for assessment || Does not make a declaration || EL has partly transposed Article 2

ES || - || - || - || - || Insufficient information for assessment

FR || Meets the requirements || Meets the requirements || Meets the requirements || Does not make a Declaration || FR has transposed Article 2

IT || Meets partly the requirements || Meets partly the requirements || Insufficient information for assessment || Declaration expired 22 July 2010. || It has partly transposed Article 2

CY || Meets the requirements || Meets the requirements || No specific provision || Does not make a declaration || CY has not fully transposed Article 2

LV || Meets partly the requirements || Meets partly the requirements || Insufficient information for assessment || Does not make a declaration || LV has partly transposed Article 2

LT (2007) || Meets partly the requirements || Meets partly the requirements || Insufficient information for assessment || Does not make a Declaration || LT has partly transposed Article 2

LU || Meets partly the requirements || Meets partly the requirements || Insufficient information for assessment || Does not make a declaration || LU has partly transposed Article 2

HU || Meets partly the requirements || Meets partly the requirements || Meets the requirements || Does not make a declaration || HU has partly transposed Article 2

MT || Meets the requirements || Meets the requirements || Insufficient information for assessment || Does not make a declaration || MT has partly transposed Article 2

NL || Meets partly the requirements || Meets partly the requirements || Meets the requirements || Does not make a declaration || NL has partly transposed Article 2

AT || Meets partly the requirements || Meets partly the requirements || Insufficient information for assessment || 'in as far as art.2 is not transposed, the exception clause of paragraph 3 is used' Declaration expired 22 July 2010. || AT has partly transposed Article 2

PL || Meets partly the requirements || Meets partly the requirements || Meets the requirements || Made a Declaration in 2007, reported in Article 296 (a) Declaration expired 22 July 2010. || PL has partly transposed Article 2

PT || Meets the requirements || Meets the requirements || Meets the requirements || Does not make a Declaration || PT has transposed Article 2

RO || Meets partly the requirements || Meets partly the requirements || Meets the requirements || Does not make a Declaration || RO has partly transposed Article 2

SI || Meets the requirements || Meets the requirements || Amendments to the Criminal Code in preparation to include non-profit entities || Does not make a Declaration || SI has partly transposed Article 2

SK || Meets partly the requirements || Meets the requirements || Insufficient information for assessment || Does not make a Declaration || SK has partly transposed Article 2

FI || Meets the requirements || Meets the requirements || Meets the requirements || Does not make a Declaration || FI has transposed Article 2

SE || Meets partly the requirements || Meets partly requirements || Insufficient information for assessment || Does not make a Declaration || SE has partly transposed Article 2

UK || Meets the requirements || Meets the requirements || Meets the requirements || Does not make a Declaration || UK has transposed Article 2

1.1.5. Analysis of Member States

The discussion below builds on the observations and assessment made in the 2007 implementation report. In case no further changes or additional explanations have been communicated to the Commission, the assessment of the 2007 report is assumed to hold.

Belgium

BE informed the Commission that Article 504bis of the Belgian Penal Code indicates active and passive corruption. BE did not supply the text of the legislation, and the Commission assumes that no further changes have been effected from the 2007 report. BE is therefore assumed to be compliant with the requirements of Art.2 of the FD.

Article 2(1)

Article 2(1)(a) of the FD, defining active corruption in the private sector, is included under Article 504bis § 2 of the Belgian Penal Code. Article 2(1)(b) of the FD, defining passive corruption in the private sector, is included in the Belgian Penal Code under Article 504bis §1 er. The Article contains the relevant provisions of the FD, as discussed in the 2007 assessment.

Belgian legislation, it should be noted, specifies "breach of that person's duties" must occur without the knowledge or authorisation of the offender's superiors, which seems to be narrower than the scope of the Framework Decision. BE was considered as compliant with the FD in this respect in 2007 however, the Commission would welcome further comment on this particular provision.

BE meets the requirements of Art. 2(1) of the FD.

Article 2(2)

BE indicated Article 504bis of the Belgian Penal Code as the relevant provision applying to both profit and non-profit entities without supplying the text. No explicit mention is made of profit/non-profit entities, but rather the text refers generally to legal persons. Provisions on legal persons and those related to ASBLs allow to conclude that BE meets this requirement.

BE meets the requirements of Art.2(2) of the FD.

Bulgaria

Bulgaria informed the Commission that the relevant legislation is Article 225(c) of the Bulgarian Penal Code. This legislation indicates that Bulgaria has fully transposed Article 2 of the FD, as discussed below.

Article 2(1)(a) – active corruption

Article 225c(2) defines active corruption, whereas paragraphs (3) and (4) respectively establish that the benefit may be for third persons and that the act may occur through intermediaries.

"Promising, offering or giving" is covered by "offers, promises or gives."

"Directly or through an intermediary" is not explicitly noted, albeit 225c(4) notes that "whoever mediates in the perpetration of one of the acts under the preceding paragraphs ... shall be punished."

"A person who in any capacity directs or works" is covered by "a person who works."

"For a private-sector entity" is covered by "a legal person or sole trader."

"An undue advantage of any kind" is covered by "a gift or an undue advantage of any kind."

"For that person or for a third party" is covered by 225c(3) "shall also be imposed when, with the consent ... the gift or advantage is offered, promised or given to another person."

"Perform or refrain from performing any act, in breach of that person's duties" is covered by "performing or refraining from performing any act in breach of their duties."

BG meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

Article 225c(1) defines passive corruption, whereas paragraphs (3) and (4) respectively establish that the benefit may be for third persons and that the act may occur through intermediaries.

"Directly or through an intermediary" is not explicitly noted, albeit 225c(4) notes that "whoever mediates in the perpetration of one of the acts under the preceding paragraphs ... shall be punished."

"Requesting or receiving or accepting the promise of" is covered by "requests or accepts ... or accepts an offer or promise of."

"An undue advantage of any kind" is covered by "a gift or an undue advantage of any kind."

"For oneself or for a third party" is covered by 225c(3) "shall also be imposed when, with the consent ... the gift or advantage is offered, promised or given to another person."

"While in any capacity directing or working" is covered by "while working for."

"For a private-sector entity" is covered by "a legal person or sole trader."

"Perform or refrain from performing any act, in breach of that person's duties" is covered by "perform or refrain from performing any act, in breach of that person's duties."

BG meets the requirements of Art. 2(1)(b) of the FD.

Article 2(2)

Bulgarian legislation does not make reference to profit or non-profit organization, only to legal person and sole trader in a general way, but it is the Commission understanding that the legal person concept covers also non profit entities, such as associations or foundations. Further clarification of this matter would ne welcome by the Commission.

BG appears to meet the requirements of Art. 2(2) of the FD.

Czech Republic

CZ informed the Commission that the following legislation transposes Art 2(1) of the FD: Section 331, 333, 334 (1)(3) Act 40/2009 Criminal Code; section 160, 161 and section 162, 162a Act 140/1961 Crime Act, section 332 Act 40/2009 Criminal Code. As discussed below, these legal provisions indicate that CZ has fully transposed Article 2 of the FD.

Article 2(1)(a) – active corruption

"Promising, offering or giving" is covered by "provides, offers or promises" (Section 161(1) Crime Act; Section 332, Criminal Code).

"Directly or through an intermediary" appears to be covered by the wording "a bribe to or for another" (Section 332(1) Criminal Code).

"A person who in any capacity directs or works" is covered by "attending to matters of general interest" (Section 161(1) Crime Act; Section 332, Criminal Code) which, as CZ points out, also encompasses "the maintenance of an obligation, imposed by law or assumed contractually, intended to ensure that, in business relations, there is no damage to or unjust favouritism of participants in these relations or of persons acting on their behalf" (Section 162a, Crime Act; Section 334, Criminal Code).

"For a private-sector entity" is also covered through "attending to matters of general interest," which include business relations (see above).

"An undue advantage of any kind" is covered by the definition of "bribe" (Section 161(1) Crime Act; Section 332, Criminal Code), which is defined as "an undue advantage consisting of direct material enrichment or other advantage ... to which he is not entitled" (Section 162a, Crime Act; Section 334, Criminal Code).

"For that person or for a third party" is covered in the definition of "bribe" – "to be received by the bribed person or, with that person's consent, another person" (Section 162a, Crime Act; Section 334, Criminal Code).

"Perform or refrain from performing any act, in breach of that person's duties" is addressed in a generic manner, relating to "attending to matters of general interest" (see above). It appears that the general obligations in business relations cover the performance/non-performance of acts and the element of breach of duty.

CZ meets the requirements of Art. 2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

"Directly or through an intermediary" is covered by "himself or through another" (Section 331, Criminal Code).

"Requesting or receiving or accepting the promise of" is covered by "accepts or secures the promise of ... [or] seeks" (Section 160(1)-(2), Crime Act; Section 331, Criminal Code).

"An undue advantage of any kind" is covered by the definition of "bribe" (see discussion on active corruption").

"For oneself or for a third party" is covered through "for himself or for another" (Section 331(1), Criminal Code).

"While in any capacity directing or working" is covered by "attending to matters of general interest" (see discussion on active corruption).

"For a private-sector entity" is also covered through "attending to matters of general interest," which include business relations (see above).

"Perform or refrain from performing any act, in breach of that person's duties" is addressed in a generic manner, relating to "attending to matters of general interest" (see discussion on active corruption).

In addition to the elements required by the FD, Czech legislation also explicitly specifies differential punishments for actions committed "with the intention of causing significant damage or other particularly serious consequence to another" (Act 140/1961, Section 161(2)).

CZ meets the requirements of Art. 2(1)(b) of the FD.

Article 2(2)

The relevant legislation is section 334 of the Criminal Code which states "(3) Attending to matters of general interest shall also encompass the maintenance of an obligation, imposed by law or assumed contractually, intended to ensure that, in business relations, there is no damage to or unjust favouritism of participants in these relations or of persons acting on their behalf." Czech authorities informed that " in terms of meeting the constituent elements, it is irrelevant whether the entity is a for-profit or not-for-profit entity."

CZ meets the requirements of Art. 2(2) of the FD.

Germany

The relevant provision in German legislation relating to Article 2 of the FD is Article 299 of the Strafgesetzbuch (Criminal Code, StGB). While the provision itself remains unchanged since the previous assessment, DE provided comments on a number of clarifications requested by the Commission. Also worth noting is the fact that DE's declaration under Article 2(3), limiting the scope of application of Article 2(1) only to such conduct which involves, or could involve, a distortion of competition in relation to the purchase of goods or commercial services has expired, in line with the provision of the art 2(3). The discussion below addresses the pertinent elements.

Article 2(1)(a) – active corruption

In the 2007 assessment, COM noted that German legislation did not address the requirement "directly or indirectly." DE clarified that while intermediaries are not expressly referred to, established case law points to the fact that such conduct is nonetheless covered.

DE also explained that the reference to "employee" and "agent" encompass employees, managers and board members and thus meets the FD reference to "who in any capacity works or directs."

"An undue advantage of any kind," DE explains, is understood as the component element of "advantage" (Vorteil). The same term is used in public sector corruption and Introductory Law of the Criminal Code of 1974 specifies that this term includes both material and immaterial advantages.

The German provision "giving unfair preference to him or another person in relation to the purchase of goods or commercial services" is linked to the declaration under Art.2(3) of the FD. However, given that the declaration can no longer be considered valid, it should be noted that this definition is narrower than the FD requirement "perform or refrain from performing any act, in breach of that person's duties." Independently of this declaration, the Federal Government has put before the German Bundestag a Bill (Entwurf eines … Strafrechtsänderungsgesetzes vom 4. Oktober 2007 [Bill for a … Law to amend the criminal law of 4 October 2007], Parliamentary Record 16/6658), which provides for an amendment of the constituent element of the offence in § 299 StGB which is consistent with Article 2(1) of the Framework Decision. It is proposed that in future the acceptance and grant of advantages in return for breaches of duty against the undertaking are also to constitute criminal offences (see § 299(1)(2) and (2)(2) StGB in the version of the Government Bill, ‘principals model’).

DE partly meets the requirements of Art. 2(1)(a) of the FD.

Article (2)(1)(b) – passive corruption

"Through an intermediary" requirement is met in consideration with case law (see discussion on active corruption).

"An undue advantage of any kind" is met in consideration of the explanation offered by DE (see discussion on active corruption).

"While in any capacity directing or working" is met in consideration of the explanation offered by DE (see discussion on active corruption).

Given the expiry of DE's declaration and pending the entry into force of new legislation (see discussion on active corruption), "perform or refrain from performing any act, in breach of that person's duties" is only partly met.

DE partly meets the requirements of Art. 2(1)(b) of the FD.

Article 2(2)

The relevant legislation cited by the German authorities applies only to "the purchase of goods or commercial services" and "in the course of business." As such, it does not appear to apply to non-profit entities.However, DE explains that the term "geschäftlicher Betrieb" (business enterprise) in section 299 German CC not only covers entities which have the intention of making profits but also entities that do not persue this intention, including social, charitable, cultural, clerical and all other non-profit entities (DE refers to the decision of the Federal Court (BGH) of 9 October 1990, para. 67, concerning "clerical entities"). This view is also reflected in commentary literature to secton 299. Taking into account the explanation,

DE meets the requirements of Art.2(2) of the FD.

Estonia

While EE did not submit the cited articles of legislation, an explanation as to how relevant articles transpose the FD was provided to the Commission, addressing some of the concerns noted in the 2007 assessment. Where additional information was provided by EE, it is discussed below. In other respects the observations made in the 2007 report hold. These observations indicate that EE has partially transposed Art.2 of the FD.

Article 2(1)(a) – active corruption

EE provided an elaboration of "an official," to whom private sector corruption pertains, explaining that "'an official' is also a person who directs a legal person in private law or acts on behalf of such a person or acts on behalf of another natural person" (§288(2), Penal Code). This provision appears to meet the requirements of "who in any capacity works or directs."

The above elaboration also indicates that EE meets the requirement "in the private sector."

While no definition of "bribe" or "gratuity" were provided, making it impossible to assess whether EE meets the requirement of "an undue advantage of any kind," EE did, however, inform the Commission that revised definitions of "bribe" and "gratuity" make explicit reference to third party advantage, indicating that EE now meets the requirements of "for that person or for a third party."

The following requirements were not fully met in the previous assessment, nor were any further explanations offered: "offering," "through an intermediary," "perform or refrain from performing any act, in breach of that person's duties."

EE partly meets the requirements of Art. 2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

As discussed with reference to active corruption, EE informs that the new reference to "bribe" and "gratuity" makes explicit reference "for a third party."

As discussed with reference to active corruption, EE appears to meet "who in any capacity works or directs."

"Lawful acts ... a lawful omission ... an unlawful act ... an unlawful omission" meet the requirement "perform or refrain from performing any act, in breach of that person's duties."

The following requirements were not fully met in the previous assessment, nor was any further explanation offered: "through an intermediary," requesting," "an undue advantage."

Notably, for passive corruption, Estonian legislation makes a distinction in the penalties for an advantage (gratuity) which comprises a lawful act or omission on the one hand, or an advantage (a bribe) which comprises unlawful act or omission on the other, with the latter carrying a higher penalty than the former.

EE partly meets the requirements of Art. 2(1)(b) of the FD.

Article 2(2)

Estonian authorities informed about the relevant legislation is § 288(2) Penal Code, which makes no distinction between profit and non-profit private law legal persons.

EE meets the requirements of Art.2(2) of the FD.

Ireland

IE informed the Commission that Article 2(1) is transposed in Irish legislation by means of the Prevention of Corruption Act 1906 and its 2001 Amendment Act. In the meantime, the Prevention of Corruption (amendment) Act 2010 addressing the outstanding issue (gift/consideration/advantage) was adopted,

Article 2(1)(a) – active corruption

In the 2007 report, the wording "any gift or consideration" was considered as not fully compliant with "an undue advantage of any kind." The 2010 Act has changed the wording to "gift, consideration or advantage" which meets the requirement.

IE meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

As noted in the 2007 assessment.

IE meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

As noted in the 2007 assessment,

IE meets the requirements of Art.2(2) of the FD.

Greece

EL informed the Commission that the relevant legislation is Article 5 of Law 3560, Ratification and application of the Criminal Law Convention on Corruption and the Additional Protocol thereto and provided a translation of this legislation. This legislation indicates that EL has partially transposed Art.2 of the FD – the element of third party advantage is missing in the definition of passive corruption, and it is unclear whether the provisions apply to non-profit entities.

Article 2(1)(a) – active corruption

"Promising, offering or giving" is met by "promises, offers or gives"

"Directly or through an intermediary" is met by "directly or indirectly"

"A person who in any capacity directs or works" is met by "any person who, in any capacity, directs or works"

"For a private-sector entity" is met by "for a private sector entity"

"An undue advantage of any kind" is met by "an undue advantage or exchange of any kind"

"For that person or for a third party" is met by "for that person or a third party"

"Perform or refrain from performing any act, in breach of that person's duties" is met by "Perform or refrain from performing any act, in breach of that person's duties"

EL meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

"Directly or through an intermediary" is met by "directly or indirectly"

"Requesting or receiving or accepting the promise of" is met by "requests or receives ... any undue advantage or the promise of such an advantage"

"An undue advantage of any kind" is met by "an undue advantage"

"For oneself or for a third party" is not addressed

"While in any capacity directing or working" is met by "any person who directs or works"

"For a private-sector entity" is met by "for private sector entities"

"Perform or refrain from performing any act, in breach of that person's duties" is met by "perform or refrain from performing any act in breach of his/her duties"

EL partly meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

No mention of Article 2(2) of the FD is made in Greece's communication to the Commission, nor is there any mention of non-profit entities.

There is insufficient information to assess whether EL meets the requirements of Art.2(2) of the FD.

France

FR provided the Commission with the relevant Articles of French legislation – Article 445-1 and 445-2 of the criminal code. In addition to the observations made in the 2007 assessment, the inclusion of third party advantage for this report entail that France has fully transposed Art.2 of the FD.

Article 2(1)(a) – active corruption

"For that person or for a third party" is met by "pour elle-même ou pour autrui"

FR meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

"For that person or for a third party" is met by "pour elle-même ou pour autrui"

FR meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

As noted in the 2007 assessment, the scope of application of the French legislation is sufficiently broad to encompass both profit and non-profit entities.

FR meets the requirements of Art.2(2) of the FD.

Italy

IT supplied the Commission with Article 2635 of the Civil Code, which stipulates criminal sanctions for private section corruption. As noted in the 2007 assessment, a number of elements of FD articles are not fully transposed in Italian legislation. Furthermore, again as noted previously, the overall context for these provisions is a situation in which private sector corruption has caused harm to the company and, accordingly, only the person sustaining a loss can initiate a claim.

Article 2(1)(a) – active corruption

As noted in the 2007 report, the elements "offering," "through an intermediary," "works" and "for a third party" are not provided for in Italian legislation.

IT partly meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

As noted in the 2007 report, the elements "through an intermediary," "for a third party" and "working" are not provided for in Italian legislation.

Furthermore, it should be noted that "as the consequence of the giving or promising of a benefit" does not appear sufficient to cover the element of "requesting" in the FD.

IT partly meets the requirements of Art.2(1)(a) of the FD.

Article 2(2)

As noted in the 2007 assessment, no express mention of profit or non-profit entities is made in the Italian legislation forwarded to the Commission.

There is insufficient information to assess whether IT meets the requirements of Art.2(2) of the FD.

Cyprus

Section 4 of Law 23(III)/2000 criminalizes both active and passive bribery in the private sector and explicitly refers to Articles 7 and 8 of the Council of Europe Criminal Law Convention on Corruption, providing that the acts and conduct, which are referred to therein constitute criminal offences. Thus, all the elements of these offences, as these elements are provided by the Convention, are adopted and embodied in Cyprus legal system and in particular in Law 23(III)/2000.

According to Section 2 of Cap. 161, the offence of passive and active corruption, without any distinction between the private and the public sector is also criminalized.

Article 2(1)(a) – active corruption

CY explicitly refers to the art. 7 of the Council of Europe Convention Criminal Law Convention on Corruption.

CY meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

CY explicitly refers to the art. 8 of the Council of Europe Criminal Law Convention on Corruption.

CY the requirements of Art.2(1)(a) of the FD.

Article 2(2)

According to the information provided by CY there is no distinction between private sector entities (profit or non profit) and therefore CY legislation applies to business activities within profit and non-profit entities.

CY meets the requirements of Art.2 (2) of the FD.

Latvia

The Latvian authorities provided the Commission with the relevant extracts of the Criminal Law pertaining to the FD, noting that Chapter XIX on Criminal Offences in the National Economy transposes Art. 2 of the FD. LV informed the Commission that, since the previous assessment, the Criminal Law has been amended more than ten times. Accordingly, the constituent elements of Art.2 of the FD are discussed again below. This assessment indicates, as noted in 2007, that Art.2 remains only partly transposed in Latvian legislation.

Article 2(1)(a) – active corruption

The provisions on active corruption are contained in Section 199 of the Latvian Criminal Law.

"Promising, offering or giving" is partially addressed by "offers or gives ... if the offer is accepted." This phrasing omits "promising" and appears to establish a limitation on the offence (that the offer or promise is accepted) not foreseen in the FD. Whether or not such instances would be considered an attempted criminal offence under Section 15 of the Criminal Law remains unclear.

"Directly or through an intermediary" is met by "personally or through intermediaries."

"A person who in any capacity directs or works" is partially addressed through "a responsible employee ... or a person authorised." As was noted in the 2007 assessment, such a definition does not include all employees, and thus does not fully address "works."

"For a private-sector entity" is met by "an undertaking (company) or organisation"

"An undue advantage of any kind" is met by "material value, property or benefits of another nature"

"For that person or for a third party" is met by "irrespective of whether the material value, property or benefits of another nature is intended for this or any other person"

"Perform or refrain from performing any act, in breach of that person's duties" is met by "using his or her authority in bad faith, performs or fails to perform some act in the interests of the giver of the benefit or he or she who proposed it".

LV partly meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

"Directly or through an intermediary" is met by "him or herself or through an intermediary"

"Requesting or receiving or accepting the promise of" is not fully met, as the provision reads "requests and receives," suggesting that an unfulfilled request or acceptance of a promise are not included in the offence definition

"An undue advantage of any kind" is met through "property of material value or benefits of another nature"

"For oneself or for a third party" is met through "irrespective of whether the material value, property or benefits of another nature received is intended for this or any other person"

"While in any capacity directing or working" is met through "an employee ... or another person ... authorised." Unlike the case in active corruption, there is no requirement that the person working is a responsible employee.

"For a private-sector entity" is met by "an undertaking (company) or organisation"

"Perform or refrain from performing any act, in breach of that person's duties" is met by "for performing or failing to perform an act, in the interests of the giver of the benefit, using his or her authority in bad faith"

LV partly meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

No express mention of profit or non-profit entities is made in the Latvian legislation. However, the reference to an "undertaking (company) or organisation" could be broad enough to also encompass non-profit entities.

There is insufficient information to assess whether LT meets the requirements of Art.2(2) of the FD.

Luxembourg

LU made reference to the law of 23 May 2005, communicated to the Commission for the previous evaluation and of a draft law establishing criminal liability of legal persons and amending the Criminal Code being examined by the Conséil d'Etat since 2007. Since then, the law was adopted (law of 3 March 2010 on criminal liability of legal persons).

Article 2(1)(a) – active corruption

In the 2007 report, LU was considered as not fully addressing the elements of "giving," "works" or "private sector." Further analysis allows concluding that these elements are covered respectively by the art. 301-1 of the Criminal Code "proposer (…) une offre, une promesse ou un avantage de toute nature… and "une personne qui a la qualité d’administrateur ou de gérant d’une personne morale, de mandataire ou de préposé d’une personne morale ou physique".

LU limits the scope of the art. 2 to situations where the employer is not aware and does not approve the criminal behaviour. It is not foreseen by the FD.

LU partly meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

In the 2007 report, LU was not considered as properly addressing the elements "works" and "private sector". Further analysis (see above) allows concluding that these provisions are covered. However, additional clarifications and comments from LU in this respect would be welcomed.

In addition, LU limits the scope of the art. 2 to situations where the employer is not aware and does not approve the criminal behaviour. It is not foreseen by the FD.

LU partly meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

No express mention of profit or non-profit entities is made. The concept of legal entity and of a non profit organization allow to suppose that non profit entities are covered, but the Commission invites Luxembourg to provide more clarifications in this respect.

At this stage, there is insufficient information to assess whether LU meets the requirements of Art.2(2) of the FD.

Hungary

HU informed the Commission that Art.2(1) of the FD is transposed by the means of articles 251, 252 and 254 of the criminal code. HU also provided the Commission with further explanations with reference to the 2007 assessment, which are addressed below. In view of these explanations, HU has partly transposed Art.2 of the FD.

Art.2(1)(a) – active corruption

"Promising, offering or giving" is partly met by "granting or promising." This wording does not appear to make offering an undue advantage an offence in and of itself.

"Directly or through an intermediary" - the Commission understands that this provision could be fully covered in connection with the provision on complicity in the Criminal Code. However, clarification would be welcomed as to how these provisions transpose the FD.

It should also be noted that the offence definition is not limited to the private sector, but extends to "budgetary authority, business or social organisation." The private sector corruption does not generally require the existence of a business relation, in addition, private sector corruption is not only linked to bribery but also covers trading in influence (section 256, paragraph 3 and 4), at least as regards the passive side of this offence. As such, HU goes beyond the minimum requirements of the FD.

HU noted that its reference to "breach his/her obligations" is wider than the FD "perform or refrain from performing any act, in breach of that person's duties," but that it also includes the FD requirement. This element is thus covered by HU legislation.

HU partly meets the requirements of Art.2(1)(a) of the FD.

Art.2(1)(b) – passive corruption

"Directly or through an intermediary" (see the discussion above).

In 2007, "for oneself or for a third party" was considered as not addressed in the provisions submitted by HU. It appears to be transposed by "entering into an agreement….". However, further clarification as to that interpretation is needed.

"Perform or refrain from performing any act, in breach of that person's duties" is met through "breaching his/her obligations"

HU partly meets the requirements of Art.2(1)(b) the FD.

Art.2(2)

There is no specific provision for non-profit activities, but the relevant article mentions "budget authority, business or social organization". The Hungarian authorities informed that the term "social organization" transposes exactly the definition of non-profit organizations.

HU meets the requirements of Art.2(2) of the FD.

Malta

The concordance table provided by MT includes Articles 121(3) and 121D of the Criminal Code, which extend the crime of corruption to the private sector. Furthermore, these articles only relate to passive corruption. Art.120 (1) defines this offence, but was not mentioned by the Maltese authorities as relevant. The Commission has considered the provisions of legislation not expressly mentioned by MT, but would require further clarification on the matter.

Article 2(1)(a) – active corruption

"Promising, offering or giving" is addressed in "any reward or promise or offer" of Art.115 of the Criminal Code, given its application through articles120 (1) (relating Art.115 to the private sector) and 121(3) (relating Art.115 to active corruption).

"Directly or through an intermediary" is covered by "directly or through an intermediary" mentioned in Art.121(3), Criminal Code – given the fact that the scope of Art.120(1) on active corruption extends to articles 115-118 "in accordance with any provision under this Code or under any other law."

"A person who in any capacity directs or works" is covered by "directing or working in any capacity" of Art.121(3), if this applies to active corruption (see discussion on the scope of Art.120(1) above).

"For a private-sector entity" appears to be covered by "in the private sector" of Art.121(3), if this applies to active corruption (see discussion on the scope of Art.120(1) above).

"An undue advantage of any kind" appears to be covered by "any reward in money or other valuable consideration or of any other advantage" of Art.115 of the Criminal Code, given its application through articles120(1) (relating it to active corruption) and 121(3) (relating it to the private sector).

"For that person or for a third party" appears to be covered by "for himself or for any other person" of Art.115 of the Criminal Code, in light of Art.120(1) (relating it to active corruption) and 121(3) (relating it to the private sector).

"Perform or refrain from performing any act, in breach of that person's duties" appear to be covered by "to do what he is in duty bound to do" (Art.115(a), Criminal Code), "to forbear from doing what he is in duty bound to do" (Art.115(b), Criminal Code) and "in breach of his duties" (Art.121(3), Criminal Code) when interpreted in conjunction with Art.120(1), Criminal Code.

MT meets the requirements of Art.2 (1)(a), FD

Article 2(1)(b) – passive corruption

"Directly or through an intermediary" is met by "directly or through an intermediary" (Art.121(3), Criminal Code).

"Requesting or receiving or accepting the promise of" is covered by "requests, receives, or accepts" (Art.115, Criminal Code).

"An undue advantage of any kind" is covered by "any reward in money or other valuable consideration or of any other advantage" (Art.115, Criminal Code).

"For oneself or for a third party" is covered by "for himself or for any other person" (Art.115, Criminal Code).

"While in any capacity directing or working" is covered by "when directing or working in any capacity" (Art.121(3), Criminal Code).

"For a private-sector entity" is covered by "in the private sector" (Art.121(3), Criminal Code).

"Perform or refrain from performing any act, in breach of that person's duties" is covered by "to do what he is in duty bound to do" (Art.115(a), Criminal Code), "to forbear from doing what he is in duty bound to do" (Art.115(b), Criminal Code) and "in breach of his duties" (Art.121(3), Criminal Code)

MT meets the requirements of Art.2(1)(a) of the FD.

Article 2(2)

Maltese legislation does not mention non-profit activities; the legislation applies generically to "a natural or legal person operating in the private sector

There is insufficient information to assess whether MT meets the requirements of Art.2(2) of the FD.

Netherlands

NL supplied the Commission with the relevant articles of national legislation (Article 328ter, Criminal Code, subsequently amended), as well as a commentary on the 2007 assessment, making reference to established case law. These provisions are discussed below.

Article 2(1)(a) – active corruption

In the 2007 assessment, the Commission noted that Dutch legislation did not cover the element of "offering" in active corruption. NL informs the Commission that, a submitted amendment proposal includes this provision in the Criminal Code. This new provision includes "offering". The Commission notes that in the meantime the law has been adopted, therefore this requirement is met.

In the 2007, the Commission observed a lack of provisions for "through an intermediary." NL explained that, as established by case law, this is indeed the meaning of the legislation. NL thus meets the requirement of this provision.

The Commission enquired, in the previous assessment, whether the "gift" and "promise" in Dutch legislation cover "undue advantage of any kind." NL explained that this is the interpretation in case law, and NL is thus deemed to meet this requirement.

Similarly, NL explains that, while the law makes no explicit reference to third party advantage, established case law indicates that this is the case. NL meets the requirement of third party advantage.

However, the Commission's final remark, that Dutch law introduces a specific limitation – that the offence not be declared to the employer or principal – which is not foreseen in the FD has not been addressed. Hence NL is considered to partly meet the requirements of Art.2(1)(a).

NL partly meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

As discussed above with reference to active corruption, NL clarified that the role of intermediaries, the inclusion of "undue advantage of any kind" and the possibility of third party advantage are contained in Dutch case law and thus meet these requirements of the FD.

"Requesting" is covered by the amended provisions contained in the art. 328ter.

As noted with regard to the definition of active corruption, the requirement that the advantage be concealed from the employer or principal is narrower than the provisions of the FD and does thus not meet fully its requirements.

NL partly meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

As noted in the 2007 assessment,

NL meets the requirements of Art.2(2) of the FD.

Austria

AT informed the Commission that articles 168c, d and e; 153 and 153a; and 304 to 308 of the Criminal Code as well as Article 10 of the Law on Unfair Competition transpose Article 2 of the FD. As noted in the 2007 assessment, articles 304 to 308 of the Criminal Code appear to relate to public sector corruption only and thus were not assessed. In view of the legislation provided, AT appears to have partly transposed Art.2 of the FD.

Article 2(1)(a) – active corruption

The provisions relating to the elements "through an intermediary" and "directs" in active corruption do not appear to have changed since the 2007 assessment, leading to the conclusion that they have not been fully transposed.

It should also be noted that AT issued a declaration under Art.2(3), limiting the scope of application of Art.2(1). The declaration is not valid anymore; therefore the scope of the application of this article should be widened.

AT partly meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

Similarly to what was noted in the 2007 assessment and discussed above with reference to active corruption, Austrian legislation only partly meets the elements "intermediary," "undue advantage of any kind" and "perform or refrain from performing any act, in breach of that person's duties."

"Requesting or receiving or accepting the promise of" is met by "requests, receives or accepts the promise of."

The provision "a servant or agent" does not appear to address the full scope of "directs." However, it appears that this element is included in Art.3(4) of the Law on the liability of associations, which notes that "[A]n association's liability for an act and the possibility of punishing decision-makers or employees on account of the same act shall not be mutually exclusive."

"For oneself or for a third party" is covered by "for himself or a third party" (Art.169c).

AT partly meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

Art. 168c and 168d refer to corruption in the scope of business activities. It is unclear whether the offence definition extends to business activities within non-profit entities also.

There is insufficient information to assess whether AT meets the requirements of Art.2(2) of the FD.

Poland

Poland provided the Commission with Article 296a (1) of the Criminal code, which defines passive corruption. However, the Commission understands that active corruption is likewise an offence under Article 296a(2), the Article 115 covers the element of third party advantage and art 18(1) and (3) and 19(1) cover the liability of the intermediary.

Article 2(1)(a) – active corruption

"Promising, offering or giving" – in 2007 assessment the element "offering" was considered not covered by "gives a material or personal benefit or a promise thereof" (Art.296a(2), Criminal Code). However Polish authorities explained that this article is interpreted as covering offers as well. In the light of this explanation, this provision is considered to be met.

"Directly or through an intermediary" did not appear to be covered in 2007. PL explains that although art 296a does not cover the liability of the intermediary, this liability is provided for in the general part of the Criminal Code. Depending on the form of intermediary activity and the extent of his involvement in the offence, the intermediary may be liable for aiding and abetting or as an accomplice. Therefore the art 296a is to be read in conjunction with articles 18(1) and (3) and 19 (1) of the Criminal Code. In light of the above the provision is considered to be met.

"A person who in any capacity directs or works" is covered by "Persons who perform a leading function ... or who are employed by or working under a fee-for-task agreement or service contract" (Art.296a (1), Criminal Code).

"Perform or refrain from performing any act, in breach of that person's duties" was considered in 2007 as partly covered by "behaviour which may cause material losses to that organisation, an act of unfair competition or inadmissible preferential action." PL explains that the concept of behaviour contained in the art 296a covers both action and omission (including refraining from action) which lead to a situation in which the economic entity is exposed to material loss. This explanation allows to conclude that the "refraining" is addressed in PL legislation. However, while PL made a declaration under Art.2(3), such a declaration is no longer valid, and Polish legislation thus does not cover the more comprehensive scope of "any act, in breach of that person's duties."

PL partly meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

"Requesting or receiving or accepting the promise of" is covered by "requests, receives such benefits or accepts the promise thereof"

"While in any capacity directing or working" is covered by "Persons who perform a leading function ... or who are employed by or working under a fee-for-task agreement or service contract."

"Perform or refrain from performing any act, in breach of that person's duties" is partly covered (see the discussion above on active corruption).

PL partly meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

Art. 296a of the Criminal Code relates to "organisation[s] engaging in economic activity." In 2007 the Commission was not in a position to assess the conformity of this provision with the FD, due to lack of additional information. PL explains that the Act on the freedom of economic activity provides that any entity conducting gainful activity OR organized professional activity is an undertaking. The undertaking does not have to make profit, and therefore the art 296a applies equally to non-profit entities as far as they engage in economic activity. Further analysis of PL legal framework allows to conclude that the requirement of the art 2 (2) is met.

PL meets the requirements of Art.2(2) of the FD.

Portugal

PT states that it has transposed this Article by means of Articles 4, 8 and 9 of Law No 20/2008 of 21 April and Articles 4, 5, 26 and 27 of the Criminal Code. Bearing in mind the assessment made in 2007 the Commission offers the following additional comments:

Article 2.1 (a) active corruption

Article 9 of Law No 20/2008 criminalises active corruption in the private sector.

- "offers or promises" omits the aspect of "giving". However, following explanations provided by PT, the Commission understands that the words prometer and dar that are contained in the original text cover promising, offering or giving.

PT meets the requirements of Art.2(1)(a) of the FD.

Article 2.1 (b) passive corruption

Article 8 of Law No 20/2008 criminalises passive corruption in the private sector. It covers all the elements of the offence, similarly to the provisions of the art 41-B of the Decree-Law No. 28/84 assessed in 2007 (repealed by currently assessed text).

PT meets the requirements of Art.2(1)(b) of the FD.

Article 2.2

In 2007, in the context of Article 1 of the Framework Decision, PT informed the Commission that Portuguese law did not contain a separate definition of "legal person", but that legal person was defined by a number of Articles, including Article 157, Civil Code which provides for associations which do not have for their object the profit of the partners, social foundations and similar bodies.

In addition, the art 2e of the Law No 20/2008 states that private sector entity shall be understood as a private law legal person, a civil company and a de facto association.

PT meets the requirements of Art 2.2 of the FD.

Article 2.3

PT does not make a declaration

Romania

The provisions RO provided in its transposition table refer to corruption of "civil servants" – a wide definition, encompassing, according to Art. 147 of the Criminal Code, both public officials and "any other employee fulfilling a duty in the interest of a legal entity." Articles 254, 255 and 258 of the Romanian Criminal Code relate to Art.2(1) of the FD. Given the absence of mention of third party advantage in the Romanian legislation, the Commission considers that

RO only partly meets the requirements of Art.2 of the FD.

Article 2(1)(a) – active corruption

"Promising, offering or giving" is covered by "Promising, offering or giving" (Art.255).

"Directly or through an intermediary" is covered by "directly or indirectly" (Art.254).

"A person who in any capacity directs or works" is covered by the definition of civil servant as "any other employee fulfilling a duty in the interest of a legal entity" (Art.147).

"For a private-sector entity" is incorporated in the wide scope of "legal entity," to which these provisions apply.

"An undue advantage of any kind" is covered by "money or other gains which are undue to that person" (Art.254).

"For that person or for a third party" appears to be only partly covered, as no reference to third party advantage is made.

"Perform or refrain from performing any act, in breach of that person's duties" is covered by "to commit, not to commit or delay the commitment of an act with regard to its duties or in order to commit an act contrary to such duties." (Art.254).

RO partly meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

"Directly or through an intermediary" is covered by "directly or indirectly" (Art.254).

"Requesting or receiving or accepting the promise of" is covered by "claims or receives ... or accepts the promise... or does not reject" (Art.254).

"An undue advantage of any kind" is covered by "money or other gains which are undue to that person" (Art.254).

"For oneself or for a third party" appears to be only partly covered, as no reference to third party advantage is made.

"While in any capacity directing or working" is covered by the definition of civil servant as "any other employee fulfilling a duty in the interest of a legal entity" (Art.147).

"For a private-sector entity" is incorporated in the wide scope of "legal entity," to which these provisions apply.

RO partly meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

RO explained that the provisions for private sector corruption, referring to any civil servants, encompasses all legal entities and thus makes no difference between profit and non-profit entities. The legislation applies to both.

RO meets the requirements of Art.2(2) of the FD.

Article 2.3

RO does not make a declaration

Slovenia

SI informed the Commission that since 2007 its legislation had undergone amendments in November 2008, and forwarded the relevant provisions – Articles 241 and 242 – of the new Criminal Code (KZ-1) with explanatory comments. Given the ambiguity over whether Slovenian legislation addresses the full scope of "perform or refrain from performing any act, in breach of that person's duties," the Commission considers that SI partly meets the requirements of Art.2 of the FD.

Article 2(1)(a) – active corruption

"Promising, offering or giving" is covered by "promises, offers or gives."

"Directly or through an intermediary" is covered. Although no direct reference to intermediary is contained in the provisions SI cited as relevant to Art.2(1), Art. 20(1) of the Criminal Code states that "A perpetrator of a criminal offence is whoever commits a criminal offence personally or by using and directing another (indirect perpetrator)."

"A person who in any capacity directs or works" is subsumed under the broad concept of "a person performing an economic activity."

"For a private-sector entity" is covered under "economic activity."

"An undue advantage of any kind" appears to be covered by "an unlawful award, gift or other benefit."

"For that person or for a third party" is covered by "for his benefit or the benefit of another."

"Perform or refrain from performing any act, in breach of that person's duties": there is no specific mention whether the offence could be committed also by omission. However, the notions of "concluding or maintaining a transaction or other unlawful benefit by neglecting the interests of the organisation or causing it damage" seem broad enough to cover not only "performing" but also "refraining from act". According to SI explanations, Article 17 of the SI Criminal Code is relevant in this respect. According to this article the criminal offence may be committed not only by voluntary act, but also by omission. This general provision also refers to Articles 241 and 242 on which the offences Unauthorised Acceptance of Gifts and Unauthorised Giving of Gifts could be committed also by omission. Breach of duty is not expressly mentioned, however SI explains that it is defined as an element of the offence in the art 241 and 242 (neglecting the interests of the organization, favor in exchange of a transaction or service, giving/obtaining advantages or conclude a transaction).

SI meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

"Directly or through an intermediary" is covered. Although no direct reference to intermediary is contained in the provisions SI cited as relevant to Art.2(1), Art. 20(1) of the Criminal Code states that "A perpetrator of a criminal offence is whoever commits a criminal offence personally or by using and directing another (indirect perpetrator)."

"Requesting or receiving or accepting the promise of" is covered by "requests or accepts an [advantage] or a promise or an offer of such a benefit."

"An undue advantage of any kind" appears to be covered by "an unlawful award, gift or other benefit."

"For oneself or for a third party" is covered by "for himself or another."

"While in any capacity directing or working" is covered by "a person performing an economic activity."

"For a private-sector entity" is likewise subsumed under "economic activity."

"Perform or refrain from performing any act, in breach of that person's duties" - see discussion above.

SI meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

SI explained that, on the basis of the Companies Act, companies may pursue profit and, partially, also non-profit activities. It is however not clear to which extent this provision covers a situation of a non profit organization engaging in a business activity. The SI is invited to provide more clarification on this issue.

There is insufficient information to assess whether SI meets the requirements of Art.2(2) of the FD.

Slovak Republic

SK forwarded the amended provisions of its Criminal Code as they relate to the FD. These provisions appear to cover the majority of the requirements of the FD, albeit some ambiguities persist. Overall, the provisions supplied relate to breaches in connection with "employment, job, status or function." While these appear to cover private sector entities, both profit and non-profit, further clarification could serve to affirm this observation. Given the lack of reference to "offering," and pending clarification on the application of the offence definition to non-profit entities, SK partly meets the requirements of Art.2 of the FD.

Article 2(1)(a) – active corruption

"Promising, offering or giving" is partly covered by "gives ... or promises to give" in Section 332(1). While Sections 333(1), 334(1) and 335(1) include the element of offering, these relate to general interest procurement, foreign public office holders and employees of international organizations and thus fall outside the scope of this FD.

"Directly or through an intermediary" is covered by "directly or through an intermediary" (Section 332(1)).

"A person who in any capacity directs or works" appears to be covered by "to another person ... in breach of his duties arising in connection with his employment, job, status or function" (Section 332(1)).

"For a private-sector entity" appears to be covered by the provision sited above.

"An undue advantage of any kind" is covered by the definition of a bribe according to Section 131(3): "an item or other consideration of a pecuniary or non-pecuniary nature, to which there is no legal entitlement."

"For that person or for a third party" appears to be covered by "gives a bribe ... to another person ... or give a bribe ... to another person to that end" (Section 332(1)).

"Perform or refrain from performing any act, in breach of that person's duties" is covered by "to act or refrain from action in breach of the duties arising in connection with his employment, job, status or function" (Section 332(1)).

SK partly meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

"Directly or through an intermediary" is covered by "directly or through an intermediary" (Section 328(1)).

"Requesting or receiving or accepting the promise of" is covered by "accepts or requests a bribe or requests the promise thereof" (Section 328(1)).

"An undue advantage of any kind" is covered by the definition of a bribe according to Section 131(3): "an item or other consideration of a pecuniary or non-pecuniary nature, to which there is no legal entitlement."

"For oneself or for a third party" is covered by "for himself or for a third person" (Section 328(1)).

"While in any capacity directing or working" appears to be covered by "in connection with his employment, job, status or function" (Section 328(1)).

"For a private-sector entity" appears to be covered by the provision sited above.

"Perform or refrain from performing any act, in breach of that person's duties" is covered by to act or refrain from action in breach of the duties arising in connection with his employment, job, status or function" (Section 328(1)).

SK meets the requirements of Art.2(1)(a) of the FD.

Article 2(2)

No specific mention of for profit and non profit entities was made. It seems that the vague wording of duties in relation to "employment, job, status or function" would also cover these, but clarification on the matter is needed.

There is insufficient information to assess whether SK meets the requirements of Art.2(2) of the FD.

Finland

Though not indicating legislative changes since the previous assessment, FI provided a more detailed explanation of its transposition of the FD. While the explanations offered by FI would have benefited from more detailed references regarding their bases, FI appears to have transposed the provisions of Art.2 of the FD.

Article 2(1)(a) – active corruption

As noted in the 2007 assessment, FI meets the FD requirements "promising, offering or giving," "a person who in any capacity directs or works," "private sector entity," "for that person or for a third party" and "perform or refrain from performing any act, in breach of that person's duties."

As regards the requirement "directly or through an intermediary," in the 2007 report COM noted that it was unclear whether Finnish legislation criminalized the bribe giver as well as intermediary. FI explained that the legislation should be interpreted so that the intermediary is an accessory to the crime (if intent is present) and the person providing the bribe as the bribe giver although this is not explicit in the provisions cited. FI thus appears to meet this requirement of the FD.

With reference to the definition in Finnish law "an undue advantage (bribe)," FI informs that a bribe can be a material or immaterial advantage. FI thus appears to meet the requirement "an undue advantage of any kind."

FI meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

FI was found, in the 2007 assessment, to meet the FD requirements "for oneself or for a third party," "while in any capacity directing or working," "private sector entity" and "perform or refrain from performing any act, in breach of that person's duties."

As discussed above with reference to active corruption, FI explained that accepting undue advantages is criminalized both when the bribe is given directly and when it is given through an intermediary, though this is not explicitly specified in the provisions cited. FI thus appears to meet the requirement "directly or through an intermediary."

Finnish legislation criminalizes requesting a bribe, taking an initiative towards receiving a bribe, or receiving or accepting a bribe. FI is thus deemed to meet the requirement "requesting or receiving ... or accepting the promise of."

As discussed above with reference to active corruption, FI explained that a bribe can be either material or immaterial advantage and that the definition "undue advantage (bribe)" in active corruption (Section 7, Chapter 30, Criminal Code) and "bribe" in passive corruption (Section 8, Chapter 30, Criminal Code) are identical. FI thus appears to meet the requirement "an undue advantage of any kind."

FI meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

FI informed that the word "business" covers both for profit and non-profit activities, without providing further details.

FI appears to meet the requirements of Art.2(2) of the FD.

Sweden

SE informed the Commission that, although the relevant legislation has undergone certain amendments since the last assessment, no measures had been taken to implement the FD other than those set out in Sweden's notification in 2005. SE attached certain provisions in their current wording, albeit not those pertaining to Art.2. As such, the observations of the 2007 on Swedish transposition of Art.2 of the FD remain valid.

SE partly meets the requirements of Art.2(1) of the FD.

No further clarification on the definition of a "legal person" was offered.

There is insufficient information to assess whether SE meets the requirements of Art.2(2) of the FD.

United Kingdom

The UK Prevention of Corruption Acts (1889-1916), which have been cited to the Commission in previous communications, have recently been repealed by the 2010 Bribery Act. Although UK did not notify these changes to the Commission, the analysis below pertains to the new Bribery Act 2010.

Article 2(1)(a) – active corruption

"Promising, offering or giving" is met by "offers, promises or gives" (Article 1(2)(a) and Article 1(3)(a)).

"Directly or through an intermediary" is covered by "it does not matter whether the advantage is offered, promised or given ... directly or through a third party" (Article 1(5)).

"A person who in any capacity directs or works" is covered by the offence definition covering "any activity connected with a business," "any activity performed in the course of a person's employment" and "any activity performed by or on behalf of a body of persons (whether corporate or unincorporated)" (Article 3(2)(b)-(d)).

"For a private-sector entity" is covered by the provisions cited above relating to working and directing.

"An undue advantage of any kind" is covered by "a financial or other advantage" (Article 1(2)(a) and 1(3)(a)).

"For that person or for a third party" is covered by "it does not matter whether the person to whom the advantage is offered, promised or given is the same as the person who is to perform, or has performed, the function or activity concerned" (Article 1(4)).

"Perform or refrain from performing any act, in breach of that person's duties" is covered by "perform improperly a relevant function or activity" (Article 1(2)-(3)). "Improperly" is defined in Article 4, which refers to an activity performed or not performed in breach of relevant expectations.

UK meets the requirements of Art.2(1)(a) of the FD.

Article 2(1)(b) – passive corruption

"Directly or through an intermediary" is covered by "it does not matter ... whether R requests, agrees to receive or accepts ... the advantage directly or through a third party" (Article 2(6)(a)).

"Requesting or receiving or accepting the promise of" is covered by "requests, agrees to receive or accepts" (Article 2).

"An undue advantage of any kind" is covered by "a financial or other advantage" (Article 2).

"For oneself or for a third party" is covered by "it does not matter ... whether the advantage is (or is to be) for the benefit of R or another person" (Article 2(6)(b)).

"While in any capacity directing or working" is covered by the offence definition covering "any activity connected with a business," "any activity performed in the course of a person's employment" and "any activity performed by or on behalf of a body of persons (whether corporate or unincorporate)" (Article 3(2)(b)-(d)).

" For a private-sector entity" is covered by the provisions cited above relating to working and directing.

"Perform or refrain from performing any act, in breach of that person's duties" is covered by "perform improperly a relevant function or activity" (Article 2). "Improperly" is defined in Article 4, which refers to an activity performed or not performed in breach of relevant expectations.

UK meets the requirements of Art.2(1)(b) of the FD.

Article 2(2)

The wide range of functions to which the Bribery Act pertains, enumerated in Article 3(2) - "any activity connected with a business," "any activity performed in the course of a person's employment" and "any activity performed by or on behalf of a body of persons (whether corporate or unincorporated)" – is sufficiently broad to cover both profit and non-profit sectors.

UK meets the requirements of Art.2(2) of the FD.

1.2. Article 3 – Instigation, aiding and abetting 1.2.1. General comments

This Article focuses on secondary participation in corruption through instigation, aiding and abetting. It does not address attempted offences.

1.2.2. Summary table of the transposing legislation adopted by Member States

MS || Legislation || Measures which appeared relevant to Commission's analysis (where different to MS' citations)

BE || Art. 66 – 69 Criminal Code ||

BG || Art. 20-21 penal code ||

CZ || 140/1961 Crime Act Section 24 of act 40/2009, Criminal Code ||

DK (2007) || No reply || Sections 23 and 299(2), Criminal Code (2007 report)

DE || Sections 26, 27 Criminal Code ||

EE || Art. 22, 24 and 60 Criminal Code ||

IE || Section 1(1) to 1(3) of the 1906 Act (inserted by section 2 of the Act of 2001), in conjunction with section 7(1) of the Criminal Law Act 1997 and section 22 of the Petty Sessions (Ireland) Act 1851. Section 7(1) of the Criminal Law Act 1997. Section 22 of the petty Sessions (Ireland) Act 1851 ( the same provision as section 7(1) in respect of minor offences) ||

EL || Art. 45,46,47,48,49 Criminal Code ||

ES || No reply ||

FR || Articles 121-6, 121-7, Criminal Code ||

IT || Section 110, 115 and 378, Criminal Code ||

CY || Law 23 (III)/2000 ||

LV || Chapter I and Chapter II of the General part "Criminal Offences" ||

LT (2007) || No reply || Articles 22-26, Criminal Code (2007 report)

LU || No specific provisions || Articles 66,67 Criminal Code

HU || Art. 19, 21 act IV of 1978 on the Criminal Code ||

MT || Art. 41, 42 cap. 9 Criminal Code ||

NL || No specific provisions || Sections 47,48, 48a Criminal Code

AT || No specific provisions || Section 12,15, code of Criminal Procedure as indicated in the previous report

PL || Art. 13, 18 Criminal Code ||

PT || Articles 26, 27 Criminal Code ||

RO || Articles 25, 26 Criminal Code ||

SI || Article 37, 38,39, 40 General part of the Criminal Code Articles 241 242 Criminal Code ||

SK || Section 14, 19, 20, 21, 337 criminal code ||

FI || Criminal code, chapter 5, section 5 and 6 ||

SE || Chapter 23, chapter 4, Criminal Code ||

UK || A: with respect to England, Wales and Northern Ireland: section 8 accessories and abettors act 1861. B: with respect to Scotland: criminal procedure act, 1995 ||

1.2.3. Summary account of the transposition

The overall level of transposition was already high in 2007, when 18 MS have transposed this Article. Currently all 26 MS (except ES which did not supply any information) are compliant with the provisions of Article 3. Those countries which did not provide any or provided scarce information, but found compliant in 2007 evaluation are still considered as fully compliant. The Commission assumed that no changes have occurred in their legislation.

Summary table of transposition

MS || Comments

BE || BE meets the requirements

BG || BG meets the requirements.

CZ || CZ meets the requirements.

DK || DK did not submit a response, but was found to meet the requirements in the 2007 report.

DE || DE meets the requirements.

EE || EE meets the requirements.

IE || IE meets the requirements.

EL || EL meets the requirements

ES || -

FR || FR meets the requirements.

IT || IT meets the requirements.

CY || CY meets the requirements

LV || LV meets the requirements.

LT || LT did not submit a response, but was found to meet the requirements in the 2007 report.

LU || LU did not submit specific provisions, but was found to meet the requirements in the 2007 report.

HU || HU meets the requirements.

MT || MT meets the requirements.

NL || NL did not submit specific provisions, but was found to meet the requirements in the 2007 report.

AT || AT did not submit specific provisions, but was found to meet the requirements in the 2007 report.

PL || PL meets the requirements.

PT || PT meets the requirements

RO || RO meets the requirements.

SI || SI meets the requirements.

SK || SK meets the requirements.

FI || FI meets the requirements.

SE || SE meets the requirements.

UK || (1) England, Wales and Northern Ireland : appear to meet the requirements (legislation was not provided). (2) Scotland appears to meet the requirements (as well the text of the legislation was not provided).

1.2.4. Analysis of Member States

Belgium

BE informed that the art 3 is transposed by the art 66 to 69 of the Penal Code. These articles criminalize participation in criminal acts, co-operation, aid, assistance, use of gifts/promises/threats, and abuse of authority or power.

BE meets the requirements of Article 3

Bulgaria

The art 20 and art 21 of the Criminal code clearly delineates the difference between perpetrator, instigator and accessory person and the penalties are allocated taking into consideration the nature and the degree of their participation to the deed.

BG meets the requirements of Article 3

Czech Republic

CZ stated that it had transposed this article by means of article 140/1061 Crime Act and section 24 of Act n. 40/2009 of the new Criminal Code (legislation effective as of 1 January 2010). Both Crime Act 40/1961 and Section 24 of Act 40/2009 relate to organizer, instigator and aider. An organizer is someone who devises or controls the committing of the offence; an instigator may involve someone encouraging someone else to decide to commit an offence. An aider is someone who allows or facilitates the offences, particularly by procuring funds, removing obstacles, luring the victim to the scene of the offence, acting as lookout during the offence, providing advice, hardening resolve, or promising to contribute after the offence.

A party's criminal liability may cease if the person voluntarily refrains from further abetting in a criminal offence. Where an offence involves more than one person, this shall not prevent the cessation of the criminal liability of a party who has thus acted.

CZ meets the requirements of Article 3

Denmark

In 2007 report DK was considered compliant with the Art. 3

Germany

DE did not provide the text of the legislation mentioned § 26 (Anstiftung, instigating) and 27 (Beihilfe, aiding and abetting) StGB. However, as the mentioned Articles are the same as those reported for the previous evaluation, and DE clearly pointed out all the modifications the national law has undergone in the meanwhile, the Commission considers that DE is compliant with the art. 3.

DE meets the requirements of Article 3

Estonia

EE stated that it has transposed this Article by means of Sections 22, 24 and 60 for the Criminal Code entered into force 01.09.2002, which are the same as those reported for the previous evaluation.

EE informs that a clear distinction between abettors and aiders is made in the national legislation. An abettor is a person who intentionally induces another person to commit an intentional unlawful act; an aider is a person who intentionally provides physical, material or moral assistance to an intentional unlawful act of another person. The same provisions apply to the principal offender and to the accomplice.

EE meets the requirements of the Article 3

Ireland

IE informed that the relevant legislation is Section 1(1) to 1(3) of the 1906 Act (inserted by section 2 of the Act of 2001), in conjunction with section 7(1) of the Criminal Law Act 1997 and section 22 of the Petty Sessions (Ireland) Act 1851. Section 7(1) of the Criminal Law Act 1997 provides that any person who aids, abets, counsels or procures the commission of an indictable offence is liable to be indicted, tried and punished in the same way as the principal offender. Section 22 of the petty Sessions (Ireland) Act 1851 makes the same provision as section 7(1) in respect of minor offences.

IE meets the requirements of Article 3

Greece

EL stated that it has transposed Article 3 by means of Articles 45, 46, 47, 48 and 49 of the Criminal Code. Art. 45 covers accomplices, Art. 46 – instigators and primary accessories, Art 47 – Secondary accessories (aiding),

EL meets the requirements of Article 3

Spain

Spain did not notify its transposition measures

There is insufficient information to assess whether ES meets the requirements.

France

FR stated that it has transposed Article 3 by means of Articles 121-6, 121-7, Criminal Code. Article 121-6 applies to accomplices, who have the same liability as the main offender is punished in the same way as the perpetrator of the offence, in the meaning of the article 121-7." Article 121-7 applies to aiders, abettors and instigators

FR meets the requirements of Article 3

Italy

IT stated that it has transposed Article 3 by means of Art 110, 115 and 378, Criminal Code.

Section 110 provides that where several persons are jointly involved in the commission of an offence, each of them shall be liable to the penalty, unless otherwise provided. This appears to relate to aiding and abetting, a concept which can include being present at the scene of the crime. Section 115(1), Criminal Code, provides that agreeing to commit an offence, which is then not carried out, is not punishable; similarly for instigation of an offence which is not carried out (subsection 3). Section 378(1), criminal Code, applies to a particular serious crime, for which the law prescribes life imprisonment or imprisonment, everyone who helps a person elude investigation by the authorities or hides from them, is punishable by a term of imprisonment.

IT meets the requirements of Article 3

Cyprus

CY explicitly refers to the art. 15 of the CoE Convention establishing participatory acts as a criminal offence. CY explains that it also covers instigation.

CY meets the requirements of Article 3

Latvia

LV declared that it has transposed Article 3 by means of Chapter I and Chapter II of the General part "Criminal Offences".

Chapter I is very general in nature and does not appear directly relevant to article 3, FD. Section 15 (Chapter II: General Part "Criminal Offences") deals with completed and uncompleted criminal offences. Subsection 2 provides that preparation for a crime and an attempted crime are uncompleted criminal offences; subsection 3 addresses the meaning of "preparation for a crime" and subsection 4 that of "attempt," while subsection 5 provides that liability for these shall apply on the same basis as that of the provision relating to the specific offence.

Section 17-20 (Chapter II: General Part "Criminal Offences") deals with the perpetration and joint perpetration of an offence. In particular, section 20 addresses joint participation, organising or directing the commission of an offence, inducing another person to commit an offence and advising or providing practical or other form of assistance.

LV meets the requirements of Article 3

Lithuania (2007)

In 2007 LT states it transposed the article by means of its legislation in art 22, 24 and 25 and 26 of the Criminal Code. They deal with attempt, complicity, including instigation, abetting/helping and with accomplices. Art 25 expands the notion of complicity to organized groups.

In 2007 it was considered that LT met the requirements of the Article 3

Luxembourg

LU did not provide any specific provision for this particular article, however the internal legislation does not seem to have changed from the previous report, where LU was considered compliant with Article 3.

LU meets the requirements of Article 3.

Hungary

HU stated that it has transposed Article 3 by means of Art. 19, 21 act IV of 1978 on the Criminal Code.

Art. 19 provides a clear definition of main offenders and co-perpetrators "Persons committing criminal acts are: the person committing the act and any accomplices (perpetrators), and any instigators and accessories (participants)." Art. 21 defines abettor and accessory "(1) An instigator is anyone who deliberately incites another person to commit a crime. (2) An accessory is anyone who deliberately provides assistance in committing a crime. The penalty specified to perpetrators shall also apply to participants".

HU meets the requirements of Article 3.

Malta

MT stated that it has transposed Article 3 by means of Art. 41, 42 cap. 9 Criminal Code.

Art. 41 deals with attempted crimes, which are liable on conviction, with a possible decrease in case of voluntary determination of the offender not to complete the crime, if eventually the crime is not completed. An attempt to commit contravention is not liable for punishment.

Article 42 applies to complicity in crime, instigators, aiders and abettors are all deemed to be accomplice in crime.

MT meets the requirements of Article 3

The Netherlands

NL did not provide any specific provision for this particular Article, however the internal legislation does not seem to have changed from the previous report.

NL meets the requirements of Article 3

Austria

AT did not provide any specific provision for this particular Article. However, the internal legislation does not seem to have changed from the previous report.

AT meets the requirements of Article 3, FD.

Poland

PL declared that it has transposed Article 3 by means of Art. 13, 18 Criminal Code.

The offence of instigating a crime is provided for by Article 18 (1), instigation by subsection 2 and aiding and abetting the commission of an offence by subsection 3.

PL meets the requirements of Article 3

Portugal

PT stated that it has transposed Article 3 by means of Articles 26, 27 Criminal Code, without providing the text of the mentioned legislation. However, the Articles in question are the same as those mentioned in the previous evaluation.

PT meets the requirements of Article 3, FD

Romania

RO stated that it has transposed Article 3 by means of Articles 25, 26 Criminal Code.

Art. 25 applies to the instigator where "the instigator is the person who willingly makes another person commit an act provided for the criminal law." Article 26 deals with the aider or abettor "the accessory is the person who willingly facilitates or helps by any means in the commitment of an act referred to by the criminal law. An accessory is also a person who promises, before or during the commitment of the act, that he/she would conceal the goods in connection with that act or that he/she would encourage the perpetrator even if after the act has been committed, the promise is not fulfilled."

RO meets the requirements of Article 3

Slovenia

SI declared that it has transposed Article 3 by means of Articles 37, 38, 39, 40 General part of the Criminal Code and Articles 241, 242 Criminal Code.

SI informs the Commission that in the Republic of Slovenia, a prosecution is possible of an accomplice, instigator and aide of criminal offences in Articles 241 and 242 of the Criminal Code. Instigation, aiding and abetting are defined in the General Part of the Criminal Code as follows:

‘Perpetrator and accomplice

Article 20

(1) A perpetrator of a criminal offence is whoever commits a criminal offence personally or by using and directing another (indirect perpetrator).

(2) A perpetrator of a criminal offence is also whoever, together with another, commits a criminal offence by willfully participating in the offence or in some other way decisively participating in the offence (accomplice).’

‘Instigation

Article 37

(1) Whoever intentionally instigates another person to commit a criminal offence shall be punished as if he himself had committed it.

(2) Whoever intentionally instigates another person to commit a criminal offence for which a sentence of three years of imprisonment or more may be imposed, shall be punished for the criminal attempt, even when there was no attempt to commit a criminal offence.’

‘Aiding

Article 38

(1) Whoever intentionally supports another person in intentionally committing a criminal offence shall be punished as if he himself had committed it; he may also be punished leniently.(2) Aiding in committing a criminal offence shall be deemed to include: giving advice or instructions to the perpetrator on how to carry out the criminal offence; providing the perpetrator with instruments or removing obstacles for committing the criminal offence; giving a promise to conceal the criminal offence, the perpetrator, the instruments used for committing the criminal offence, the traces of the criminal offence, the objects resulting from the criminal offence or gains obtained by committing the criminal offence.’

‘Punishability of Instigators and Aides for Criminal Attempt

Article 39

If the perpetration of a criminal offence falls short of the intended consequence, the instigator or aids shall be punished for the criminal attempt.’

‘Limits of Punishability of Participants

Article 40

(1) A perpetrator, instigator and aide shall be punished for criminal offences within the limits of their intent.

(2) If the instigator or the aide voluntarily prevented the intended criminal offence from being accomplished, his sentence may be remitted.

(3) Personal relations, attributes and circumstances, on the basis of which the guilt or punishability are excluded by law or sentence is remitted, reduced or extended, may be taken into consideration only with respect to the participant by whom such relations, attributes and circumstances were determined.’

Concealment, as laid down in the Council Framework Decision, is defined in Article 38(2) of the KZ-1 as a form of aiding in committing a criminal offence. Article 217 of the Criminal Code also provides for a criminal offence of Concealment which includes a liability of a legal person.

‘Concealment

Article 217

(1) Whoever purchases, takes as a pledge or otherwise acquires, conceals or disposes either movable or immovable property which he knows to have been acquired by means of a criminal offence shall be sentenced to imprisonment for not more than two years. (2) Whoever commits the offence under the preceding Paragraph, and should and could have known that the property had been acquired by means of a criminal offence, shall be punished by a fine or sentenced to imprisonment for not more than one year.(3) If the offences referred to in Paragraphs 1 or 2 were committed by at least two persons who colluded with the intention of concealment, or if the property referred to in Paragraphs 1 or 2 is of high value, or the property is either of special cultural significance or a natural curiosity, the perpetrator shall be sentenced to imprisonment for not more than three years for the offence referred to in paragraph 1, and to imprisonment for not more than two years for the offence referred to in paragraph 2.(4) If the concealed property was acquired by means of a criminal offence for which the perpetrator is prosecuted by a private action or complaint, the prosecution of offences under paragraphs 1 and 2 shall be initiated upon the private action or complaint.(5) If the offence referred to in paragraphs 1, 2 or 3 was committed by a criminal association for committing such criminal offences, the perpetrator shall be sentenced to imprisonment for not more than five years.’

SI meets the requirements of Article 3

Slovakia

SK stated that it has transposed Article 3 by means of Section 14, 19, 20, 21, 337 Criminal Code.

Section 14 deals with attempted offence, where an attempted criminal is liable as a perpetrator, with the exception of the voluntary refrain to commit the crime. Sections 19 and 20 deal with the perpetrator "whosoever commits a criminal offence on his own" and the accessory "if the criminal offence is committed through the joint action of two or more perpetrators, they shall each be liable as if they had committed the offence on their own."

Section 21 deals with aider and abettor. Section 337 as well as section 21 a) b) deal with instigation

SK meets the requirements of Article 3

Finland

FI informed that it has transposed Article 3 by means of Section 5 and 6 Chapter 5, Criminal code, without however submitting the text of the mentioned legislation. The Articles reported are nonetheless the same as those referred to in the previous evaluation.

FI meets the requirements of Article 3

Sweden

SE informed that the acts referred to in Article 3 – instigation, aiding and abetting the conduct referred to in Article 2 – are criminal acts in Sweden pursuant to the provisions of Chapter 23, Section 4 of the Penal Code.

SE meets the requirements of Article 3

United Kingdom

UK informed the Commission that it has transposed Article 3 by means of:

A: in respect of England, Wales and Northern Ireland: section 8 accessories and abettors act 1861.

B: in respect of Scotland: criminal procedure act, 1995.

Article 3 on instigation, aiding and abetting is covered under section 8 of the Accessories and Abettors Act 1861 (which applies to England, Wales and Northern Ireland). It lays down that any person who aids, abets, counsels, or procures an indictable offence (and the offences under the 1906 Act are indictable) may be prosecuted and punished as a principal. (‘Counsel’ and ‘procure’ would cover instigation). In addition to the 1861 Act, an accessory will, in most cases, be able to be charged with the full offence as a secondary party. Incitement to commit any crime is also a separate common law offence in itself.

In Scotland, participating or instigating is covered under the Criminal Procedure (Scotland) Act 1995. Instigation to commit crimes is also a common law offence. Attempting is covered under the Criminal Attempts and Conspiracy Procedure (Scotland) Act 1995.

UK meets the requirements of Article 3

1.3. Article 4 – Penalties and other sanctions 1.3.1. General Comments

This Article of the Framework Decision requires that private sector corruption offences be punishable by criminal penalties which are "effective, proportionate and dissuasive". It also requires MS to ensure that passive and active corruption in the private sector is punishable by a penalty of a maximum of at least one to three years of imprisonment. Article 4(3) sets out a requirement that MS, in accordance with their constitutional rules and principles, provide in certain circumstances for the temporary prohibition of natural persons from carrying on that particular or comparable business activity in a similar position or capacity.

1.3.2. Summary table of the transposing legislation adopted by Member States

MS || Legislation || Measures which appeared relevant to Commission's analysis (where different to MS' citations)

BE || Art. 504 ter Criminal Code Art. 2 Law 26/06/2000 in relation to the introduction of Euro in the legislation concerning the subject covered by art. 78 Constitution. Law 5 March 1952 AR No. 22 of 24 October 1934, Art.1(f) Art. 19 of the Act of March 20, 1991 on employers' organization and art. 20 Law 15 June 2006 on public procurement and some works, supplies and services ||

BG || Article 225c of the Bulgarian Penal Code Article 301, paragraph 4 PC in conjunction with Article 7(6) and (7) PC Art. 37. (1) Article 93 of the Penal Code ||

CZ || Section 49, 73 of Act No 140/1961, the Crime Act ||

DK (2007) || No reply || Sections 26, 27(2), 299(2), Criminal Code (2007 report)

DE || §299 §300 Criminal Code §70 Criminal Code ||

EE || §§ 293(2), 294(2), 297(2), 298(2), Penal Code, entered into force 01.09.2002 §§209-213, 217, 280, 281, 295-298 or Chapter 19 of the Penal Code. §§49-49, Penal Code, as amended on 22.12.2008 ||

IE || Section 1(4) of the 1906 Act, as inserted by section 2 of the Act of 2001, Section 7(1) of the Criminal Law Act 1997 and section 22 of the Petty Sessions (Ireland) Act 1851. Section 1 of the 1906 Act, Section 160 of the Companies Act 1990. ||

EL || Penal code art. 67, 61, 63 Art. 4 law 3560/2007 ||

ES || No reply ||

FR || Art. 445-1, 445-2, 445-3 Penal Code ||

IT || Art. 2635 Civil code Art. 35bis, 32bis, 378 Criminal Code ||

CY || No spec