Explanatory Report on the Protocol to the Convention on the protection of the European Communities' financial interests (Text approved by the Council on 19 December 1997)
Date: 1997-12-19
Institutions: Council of the European Union
Subjects: European official, Intergovernmental Convention (EU), civil servant, corruption, financial interests of members, fraud

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on  the  Protocol  to  the  Convention  on  the  protection  of  the  European  Communities’  financial
interests

EXPLANATORY  REPORT

(Text  approved  by  the  Council  on  19  December  1997)

(98/C  11/02)

I. INTRODUCTION

Various  studies  and  other  projects  undertaken  in  the
Member  States  and  the  Community  institutions (1)  have
highlighted the fact that the legislation of Member States
contains  provisions  which  can  be  used  to  combat  fraud
and  active  and  passive  corruption  of  national  officials.

While  the  specific  characteristics  of  such  legislation  vary
from  one  Member  State  to  another,  all  have  common
elements  which  make  it  possible  to  arrive  at  a  common
definition.

It  has  also  been  established  that  the  Member  States’
criminal  laws  are  far  from  complete  in  their  applicability
to  the  international  dimension  of  corruption,  involving
Community  officials  or  the  officials  of  other  Member
States,  actually  or  potentially  affecting  the  European
Communities’  financial  interests.

The  fact  that  there  are  these  common  elements  in  the
national  laws  points  up  the  need  for  action  to  promote
an  adequate  response  at  European  Union  level  and  to
secure  greater  convergence  in  the  manner  in  which  the
laws  apprehend  forms  of
Member  States’  criminal 
corruption  with  international  ramifications.

The  present  Protocol  on  corruption  of  officials  was
proposed  at  the  request  of  the  Spanish  Presidency  as  an

(1)  Notably:

—  draft Treaty of 10 August 1976 (OJ C 222, 22.9.1976, p.

13),

—  European Parliament resolution of 11 March 1994 (OJ C

91,  28.3.1994,  p.  334),

—  Council  resolution  of  6  December  1994  (OJ  C  355,

14.12.1994,  p.  2),

—  European  Parliament  resolution  of  15  December  1995.
The Spanish Presidency asked the Commission to present the
findings  of  the  comparative  study  of  the  matter.  The  work
was completed on 1 December 1994; it was found that each
legal system had coherent measures of its own but that there
were inevitable, and counter-productive, divergences between
Member  States  as  regards  the  definition  both  of  corruption
itself  and  of  the  persons  against  whom  measures  to  combat
corruption  among  public  servants  were  directed.

additional  instrument  to  complement  the  Convention (2)
drawn  up  on  26  July  1995  and  to  reinforce  the
protection of the Communities’ financial interests. It is in
particular a response to point 7h of the resolution of the
Council  of  6  December  1994  on  the  legal  protection  of
the  financial  interests  of  the  Community (3)  according  to
which  the  ‘Member  States  should  take  effective  measures
to  punish  bribery  involving  officials  of  the  European
Communities  in  relation  to  the  financial  interests  of  the
Communities’.

II. COMMENTARY  ON  THE  ARTICLES

Article  1

This  introductory  provision  defines  the  terms  ‘official’
and  ‘Convention’  for  the  purposes  of  the  Protocol
wherever  the  terms  are  used  in  it.

1.1. 

‘Official’  means  any  of  various  categories  of
persons,  Community  officials,  national  officials  or
officials  of  another  Member  State,  to  ensure  a
broad  and  homogeneous  application  of 
the
substantive  provisions  of  the  Protocol  in  the  fight
against  corruption.

These  categories  are  defined  in  relation  to  their
respective  statuses.

1.2.  Point (b) of paragraph 1, based on the formulation
in  the  1976  draft  Treaty,  applies  to  ‘Community
officials’,  which  means  not  only  permanent
officials,  stricto  sensu,  covered  by 
the  Staff
Regulations  of  Officials  of 
the  European
Communities,  but  also  the  various  categories  of
staff  engaged  on  contract  under  the  Conditions  of
Employment of Other Servants. It includes national

(2)  OJ  C  316,  27.11.1995,  p.  48.
(3)  OJ  C  355,  14.12.1994,  p.  2.

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experts  seconded  to  the  European  Communities  to
carry  out  functions  equivalent  to  those  performed
by  Community  officials  and  other  servants.

—  the  European  Agency  for  the  Evaluation  of

Medicinal  Products (10),

Members  of  the  Community 
institutions,  the
Commission,  the  European  Parliament,  the  Court
of  Justice  of  the  European  Communities  and  the
European  Court  of  Auditors,  are  not  covered  by
this  definition  (see  comments  on  Article  4(2)).

1.3.  The  last  sentence  of  point  (b)  brings  the  staff  of
bodies  established  under  Community  law  within
the  definition  of 
‘Community  official’.  This
concerns  at  present:

—  the  European  Agency  for  Cooperation (1),

—  the  European  Investment  Bank (2),

—  the  European  Centre  for  the  Development  of

Vocational Training (3),

—  the  European  Foundation  for  the  Improvement

of  Living  and  Working  Conditions (4),

—  the  European  University  Institute (5),

—  the  European  Investment  Fund (6),

—  the  European  Environment  Agency (7),

—  the  European  Training  Foundation (8),

—  the European Monitoring Centre for Drugs and

Drug  Addiction (9),

(1)  Council  Regulation 
16.11.1981,  p.  1).

(EEC)  No  3245/81 

(OJ  L  328,

(2)  Articles  198d  and  198e  of  the  EC  Treaty.
(3)  Council  Regulation  (EEC)  No  337/75  (OJ  L  39,  13.2.1975,
p.  1).  Regulation  altered  by  Council  Regulation  (EC)  No
354/95  (OJ  L  41,  23.2.1995,  p.  1).

(4)  Council  Regulation 

(OJ  L  139,
30.5.1975,  p.  1),  as  last  amended  by  Regulation  (EEC)  No
1947/93  (OJ  L  181,  27.7.1993,  p.  13).

(EEC)  No  1365/75 

(5)  Convention setting up a European University Institute (OJ C

29,  9.2.1976,  p.  1).

(6)  Statute  of  the  European  Investment  Fund  (OJ  L  173,
7.7.1994,  p.  1)  see  also  Article  30  of  the  Protocol  on  the
Statute  of  the  European  Investment  Bank  and  Article  239  of
the  EC  Treaty.

(EEC)  No  1210/90 

(OJ  L  120,

(7)  Council  Regulation 
11.5.1990,  p.  1.).
(8)  Council  Regulation 

(OJ  L  131,
23.5.1990,  p.  1).  Regulation  altered  by  Regulation  (EC)  No
2063/94  (OJ  L  216,  20.8.1994,  p.  9).

(EEC)  No  1360/90 

(9)  Council  Regulation  (EEC)  No  302/93  (OJ  L  36,  12.2.1993,
p.  1).  Regulation  as  amended  by  Regulation  (EC)  No
3294/94  (OJ  L  341,  30.12.1994,  p.  7).

—  the  European  Agency  for  Safety  and  Health  at

Work (11),

—  the  Office  for  Harmonisation  in  the  Internal

Market  (Trade  Marks  and  Designs) (12),

—  the  European  Monetary  Institute (13),

—  the  Community  Plant  Variety  Office (14),

—  the  Translation  Centre  for  the  Bodies  of  the

Union (15),

—  the  European  Monitoring  Centre  on  Racism

and  Xenophobia (16).

This  provision  concerns  the  personnel  of  bodies
responsible  in  a  very  broad  sense  for  applying
Community  legislation,  already  enacted  or  yet  to
be  enacted  under  the  Community  Treaties,  whose
activities  are  such  that  corruption  of  them  could
have  an  adverse  effect  on  protection  of  the
Community’s  financial  interests.

1.4.  Point  (c)  of  paragraph  1  defines  the  concept  of
‘national  official’  in  terms  of  an  official  or  public
officer  as  defined  in  the  national  law  of  each
Member State for the purposes of its own criminal
law.  The  criminal  law  definition  is  thus  given
priority.  Where  a  national  official  of 
the
prosecuting  State  is  involved,  this  means  that  its
national  definition  is  applicable.  Where  an  official
of another Member State is involved, it means that
the  definition  in  the  law  of  that  Member  State  is
not  conclusive  where  the  person  concerned  would

(10) Council  Regulation 
24.8.1993,  p.  1).

(EEC)  No  2309/93 

(OJ  L  214,

(11) Council Regulation (EC) No 2062/94 (OJ L 216, 20.8.1994,
p.  1).  Regulation  as  last  amended  by  Regulation  (EC)  No
1643/95  (OJ  L  156,  7.7.1995,  p.  1).

(12) Council  Regulation  (EC)  No  40/94  (OJ  L  11,  14.1.1994,  p.
1). Regulation altered by Regulation (EC) No 3288/94 (OJ L
349,  31.12.1994,  p.  83).

(13) Article 109f of the EC Treaty; Protocol on the Statute of the
European  Monetary  Institute,  annexed  to  the  Treaty  on
European  Union.

(14) Council  Regulation  (EC)  No  2100/94  (OJ  L  227,  1.9.1994,
p. 1). Regulation altered by Regulation (EC) No 2506/95 (OJ
L  258,  28.10.1995,  p.  3.

(15) Council Regulation (EC) No 2965/94 (OJ L 314, 7.12.1994,
p. 1). Regulation altered by Regulation (EC) No 2610/95 (OJ
L  268,  10.11.1995,  p.  1).

(16) Council Regulation (EC) No 1035/97 (OJ L 151, 10.6.1997,

p.  1).

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not have had the status of official under the law of
the  prosecuting  Member  State.  This  follows  from
subparagraph  2  of  point  (c),  according  to  which  a
Member  State  may  determine  that  corruption
offences  involving  national  officials  of  another
Member  State  refer  only  to  such  officials  whose
status  is  compatible  with  that  of  national  officials
according  to  the  national  law  of  the  prosecuting
Member  State.

The  reference  to  the  law  of  the  official’s  Member
State  means  that  due  account  can  be  taken  of
specific  national  situations  regarding  the  status  of
persons  exercising  public  functions.

Article  4(2)  and  (3)  show  that  the  notion  of
‘national  official’  does  not  automatically  include
members  of  parliament,  ministers,  members  of  the
highest courts or members of a court of auditors in
the  Member  States.  However,  this  does  not
preclude  any  Member  State  from  extending  its
definition  of  ‘national  official’  to  one  or  more  of
these  categories  of  persons.

1.5.  Article  1(2)  defines  ‘Convention’  for  the  purposes
of  the  Protocol  to  the  Convention  drawn  up  at
Brussels  on  26  July  1995  on  the  protection  of  the
European  Community’s 
interests,
published  in  Official  Journal  of  the  European
Communities  C  316  of  27  November  1995.

financial 

Reference  to  the  relevant  provisions  of  that
Convention  is  made  in  Article  4(1),  Article  7  and
Article  9(3).

Article  2

Article  2  defines  the  elements  of  the  offence  of  passive
the
corruption  actually  or  potentially  damaging 
Communities’ financial interests. This definition links the
Protocol  to  the  Convention  it  supplements.

The  expression  ‘likely  to  damage’  is  used  to  cover  cases
of corruption whose effect on the Communities’ financial
interests  has  not  attained  the  objective  pursued.

2.1.  Paragraph  1  enumerates  a  series  of  elements
constituting  corruption  of  an  official,  of  which
intent  is  a  necessary  component.

2.2.  The  material  components  of  corruption  include
requesting,  accepting  and  receiving  certain  things,
‘directly  or  through  an  intermediary’.

This  includes:

—  a  unilateral  act  by  an  official  who  requests  a
benefit  for  himself  by  letting  it  be  known  to
another  person,  explicitly  or  implicitly,  that  he
will  have  to  ‘pay’  to  have  some  official  act
done  or  abstained  from; 
immaterial
whether  the  request  is  acted  on,  the  request
itself  being  the  core  of  the  offence,

is 

it 

—  acceptance or receipt by the offender of certain
things pursuant to a meeting of minds between
himself  and  the  giver;  the  offence  is  complete
when  consents  have  been  exchanged,  even  if
the official subsequently waives performance of
the  agreement  or  returns  the  thing  received.

The  Protocol  makes  no  distinction  between  direct
and indirect means of corruption. The fact that an
intermediary may be involved, which would extend
the  scope  of  passive  corruption  to  include  indirect
action by the official, necessarily entails identifying
the  criminal  nature  of  the  official’s  conduct
irrespective  of  the  good  or  bad  faith  of  the
intermediary involved.

2.3.  The  offence  also  covers  the  case  where  the  official
for  example  requests  a  gift  or  another  advantage
not  for  himself  but  for  a  third  party,  such  as  a
spouse or a partner, a close friend, a political party
or  other  organisation.

2.4.  The things that constitute the material substance of
the 
include  offers,  promises  or
advantages  of  any  kind  whatsoever  for  the  benefit
or  the  official  or  of  any  other  person.

corruption 

‘Advantages  of  any  kind  whatsoever’ 
is  a
deliberately  broad  concept,  embracing  not  only
material objects (money, precious objects, goods of
all  kinds,  services  rendered)  but  also  anything  that
might  represent  an 
interest,  such  as
settlement  of  the  corrupted  person’s  debts,  work
on property belonging to him. This enumeration is
not  exhaustive.  The  concept  of  advantage,
requested, received or promised, covers all kinds of
material  or  intangible  advantages.

indirect 

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For the purposes of the Protocol, the point in time
at  which  things  constituting  the  substance  of  the
corruption  are  given  or  provided  is  immaterial.  By
expressly  covering  the  acceptance  of  promises,
Article  2(1)  catches  deferred  payments,  provided
their  origin  lies  in  a  criminal  agreement  between
the  corrupted  and  the  corruptor.

It  is  therefore  up  to  the  Member  States  to  see
whether  their  current  criminal  law  does  indeed
cover  all  the  relevant  categories  of  persons  and
forms  of  conduct  and,  if  not,  to  enact  measures
establishing one or more offences corresponding to
them.  They  may  do  so  either  by  establishing  one
offence  of  a  general  nature  or  by  establishing
several  specific  offences.

2.5. 

It is essential that the request or acceptance should
predate  the  act  or  abstention  offered  or  accepted
by  the  official.

Article  3

The  text  is  unequivocal:  ‘the  . . .  action  of  an
official  who  . . .  requests,  or  receives  advantages
. . . or accepts a promise . . . to act or refrain from
acting . . .’.

This  Article  describes  the  components  of  an  offence  of
active  corruption  of  an  official  which  actually  or
potentially  damages  the  Communities’  financial  interests.

It is thus clear that, chronologically speaking, there
must  first  be  the  request  or  acceptance  and  then
the  act  or  refraining  therefrom  by  the  official.

A benefit received after the act but without a prior
request  or  acceptance  therefore  does  not  generate
criminal liability under the Protocol. Moreover, the
Article  does  not  apply  to  the  gifts  that  are  not
related  to  any  subsequent  act  in  the  performance
of  duties  by  the  official.

2.6.  The  official’s  duties  or  functions  are  the  target  of
the  practices  to  which  the  Protocol  applies.

The  Protocol  applies 
to  performance  of,  or
abstention  from  performing,  any  act  within  the
powers  of  the  holder  of  the  office  or  function  by
virtue of any law or regulation (official duty) in so
far  as  they  are  carried  out  in  breach  of  the
official’s duties. In addition this behaviour must be
such  that  it  causes  or  is  likely  to  cause  damage  to
the  Communities’  financial  interests.

The  laws  of  certain  Member  States  cover  cases
where  an  official,  contrary  to  his  official  duty  to
act impartially, receives an advantage in return for
acting  in  accordance  with  his  function  (e. g.  by
giving  preferential  treatment  by  accelerating  or
suspending  the  processing  of  a  case).  These  cases
are  covered  by  the  present  Article.

It is the corollary of the offence defined in Article 2, seen
from  the  corruptor’s  side;  it  is  in  particular  intended  to
ensure  that  public  administration  functions  properly  and
to  protect  officials  from  possible  manoeuvres  targeting
them,  on  the  understanding  that  in  most  Member  States
active  and  passive  corruption  are  distinct,  autonomous
offences  for  which  distinct,  autonomous  prosecutions
may  be  brought.

Article  3(1)  identifies  a  series  of  reprehensible  forms  of
conduct  by 
that  constitute  active
corruption  of  an  official.

the  corruptor 

3.1.  Any  ‘deliberate  action  of  whosoever  promises  or
gives . . . an advantage . . .’ refers to the corruptor,
whatever  the  capacity  (business,  public  service,
etc.)  in  which  he  acts;  the  corruptor  may  be  a
private individual acting as such or for a company,
or  a  person  exercising  a  public  function.

The  act  constituting  the  corruption  must  be  done
intentionally, that is to say from a deliberate desire
to  have  acts  performed  contrary  to  the  duties
attached  to  public  service.

Whether  the  offence  exists  where  the  corruptor
acts deliberately but is mistaken as to the authority
which  he  believes  the  official  to  enjoy,  will  be  a
in  accordance  with
matter  for  determination 
national law.

2.7.  Article  2(2)  requires  Member  States  to  enact  the
criminal 
law  measures  needed  to  ensure  that
conduct  of  the  type  described  in  paragraph  1  is
made  a  criminal  offence.

3.2.  The  corruptor’s  action  would  consist  of  promising
or  giving,  directly  or  through  an  intermediary,  an
advantage  (material  or  intangible)  of  any  kind
whatsoever,  whether  or  not  the  offer  is  acted  on
and  whether  or  not  any  advantage  materialises.

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The  corrupt  manoeuvre  could  be  unilateral  or
bilateral;  it  could  relate  to  a  material  or  an
immaterial thing: the concept of advantage must be
taken  in  its  broadest  possible  sense,  subject  to
points  2.4  and  2.5.

The  Article  makes  no  distinction  between  the
means,  direct  or  indirect,  whereby  the  corrupt
manoeuvre  is  undertaken.  It  includes  manoeuvres
targeted at the official, whether directly or through
an intermediary.

3.3.  Active  corruption  is  targeted  at  a  person  who
must,  by  definition,  be  an  official,  irrespective  of
whether the advantage is for the official himself or
for  some  other  person.

3.4.  The  objective  pursued  by  the  corruption  is  the
same  as  that  concerned  by  passive  corruption;  see
2.6.

3.5.  Article  3(2)  is  drafted  in  the  same  terms  as  Article

2(2);  see  2.7.

Article  4

This  Article  reinforces  the  anti-fraud  and  anti-corruption
measures  by  requiring  adjustment  of  the  criminal  law  of
the  Member  States  relating  to  relevant  conduct  by  its
national  officials  so  as  to  cover  similar  conduct  by
Community  officials  that  actually  or  potentially  affects
the  Community’s  revenue  and  expenditure.

4.1.  Paragraph  1  concerns  offences  which  in  each
Member  State 
fraudulent  conduct
affecting  the  Community’s  finances,  as  defined  by
Article 1 of the Convention, and are committed by
national  officials  in  the  exercise  of  their  functions.

relate 

to 

Here,  the  criminal  law  of  all  the  Member  States  is
to  apply  the  assimilation  principle  to  punishability
of offences in the same manner as in relation to the
offences  referred  to  in  Articles  2  and  3,  so  that
whatever  is  an  offence  when  done  by  officials  of
one  category  (national)  is  also  an  offence  when
done  by  officials  of 
category
(Community).

the  other 

The  effect  of  the  principle  is  that  Member  States
are  also  required  to  take  measures  to  extend  the
application  of  their  fraud  offences  to  similar
conduct  attributable  to  Community  officials  acting
in  the  exercise  of  their  functions.  The  extension  is
not related to the conduct itself but to the category
of  offenders.

The  manner  in  which  this  extension  is  effected  is
left  to  the  discretion  of  each  Member  State.

4.2.  At the Council meeting of 23 November 1995, the
Member  States  and  the  Commission  were 
in
agreement  that  for  the  purposes  of  this  Protocol
national government ministers and members of the
Commission,  should  be  treated  similarly.

This  view  is  reflected  in  paragraph  2  as  regards
fraud  offences  actually  or  potentially  damaging  to
the  Community’s  financial  interests  and  active  and
passive  corruption  offences  as  defined  by  the
Protocol.  At  national  level  it  concerns  government
ministers,  members  of  parliament,  members  of  the
highest  courts  and  members  of  the  court  of
it
auditors;  at  Community 
concerns  their  counterparts  acting  in  the  exercise
of  their  duties  (members  of  the  Commission,
members  of  the  European  Parliament,  members  of
the  Court  of  Justice  of  the  European  Communities
and  members  of 
the  European  Court  of
Auditors).

institution 

level, 

It  follows  that  for  the  purposes  of  punishable
offences  of  fraud  and  corruption,  members  of  the
Commission  will  be  assimilated  to  government
ministers,  members  of  the  European  Parliament  to
members  of  national  parliaments,  members  of  the
Court of Justice to members of the highest national
courts  and  members  of  the  European  Court  of
Auditors  to  their  national  counterparts.  By  this
assimilation,  national  provisions  in  so  far  as  they
cover  such  offences  committed  by  members  of
national  parliaments,  government  ministers,  etc.,
have to be extended to include the aforementioned
members  of  the 
institutions  of  the  European
Communities.

As  certain  Member  States  do  not  have  a  court  of
auditors  as  such,  the  counterpart  bodies  will  be:

—  the  National  Audit  Office 

in  the  United

Kingdom,

—  the  Office 

of 

the  Comptroller 

and

Auditor-General  in  Ireland,

—  Rigsrevisionen  in  Denmark,

—  Riksrevisionsverket  in  Sweden,

—  Valtiontalouden tarkastusvirasto/Statens

revisionsverk  in  Finland.

4.3.  Paragraph  3  allows 

the  possibility  of
derogating  from  the  assimilation  principle  of
paragraph  2  in  those  Member  States  where  the

for 

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liability  of  government  ministers 
legislation  applicable 

is
criminal 
governed  by  special 
in
specific  national  situations.  This,  however,  shall
not  preclude  criminal 
for  offences
the
committed  against  or  by  members  of 
Commission  under  the  common  rules  of  national
criminal law.

liability 

the  rules  of  criminal 

This  possibility  is  especially  useful  in  Denmark,
where 
law  governing
ministers’  liability  apply  in  specific  situations  (e. g.
those  where  the  minister  can  be  held  criminally
liable  for  acts  done  by  his  subordinates)  in  which
other  persons  occupying  leading  positions  would
not  be  criminally  liable.

4.4.  Under  paragraph  4,  the  preceding  paragraphs  on
assimilation  as  regards  punishability  are  ‘without
prejudice  to  the  provisions  applicable  in  each
Member State concerning criminal proceedings and
the  determination  of  the  competent  court’.

For  the  purposes  of  the  various  paragraphs  of
Article  4  taken  together,  the  Protocol  clearly
jeopardise  national  rules  of
cannot  affect  or 
criminal  procedure  or 
rules  conferring
jurisdiction  on  courts  to  try  cases  relating  to  the
relevant  offences.  But  this  does  not  prevent  the
Article  from  having  full  effect  in  the  national  legal
systems.

the 

law, 

With  particular  reference  to  persons  covered  by
paragraph 2, with regard to whom the assimilation
principle  generally  and  without  exclusions  implies
an  equal 
the
treatment  under  criminal 
following  should  be  noted.  Where  a  special  law  of
a  Member  State  confers  on  a  specific  court  the
jurisdiction  to  try  government  ministers,  members
of  parliament,  members  of  the  highest  courts  or
members  of  the  court  of  auditors  accused  of  an
offence,  that  court  may  also  have  jurisdiction  in
the
similar 
Commission, members of the European Parliament,
members  of  the  Court  of  Justice  of  the  European
Communities and members of the European Court
of  Auditors,  but  without  prejudice  to  national
provisions  governing  jurisdiction.

concerning  members  of 

cases 

4.5.  Paragraph  5  provides  that  the  Protocol  is  without
prejudice  to  provisions  governing  the  withdrawal
of 
the  Community
institutions.

immunity 

staff  of 

for 

Withdrawal  of  immunity  is  thus  a  prior  condition
for  exercising  jurisdiction.  The  Protocol  recognises
the obligation of each of the institutions concerned
to give effect to the provisions governing privileges

and immunities, subject to existing procedures and
redress  facilities  under  Community  law (1).

Article  5

5.1.  Article  5(1)  requires  the  Member  States  to  ensure
that  the  offences  of  active  and  passive  corruption
defined  in  Articles  2  and  3  are  always  punishable
by  criminal  penalties,  in  other  words  triable  by
criminal courts.

likewise  to  participation 

This  applies 
instigation  of  offences, 
accordance  with  the  definitions  given 
criminal  laws  of  each  Member  State.

to  be 

interpreted 

in  and
in
in  the

Since  the  offences  of  active  and  passive  corruption
include  conduct  consisting  of  making  promises
independent  of  whether  such  promises  are  actually
kept or fulfilled, it was not considered necessary to
impose  an  obligation  to  criminalise  attempts  to
commit  active  or  passive  corruption.  However,
Member  States  which  so  wish,  may  also  make
attempted  offences  punishable.

Penalties  must  be  effective,  proportionate  and
dissuasive,  the  expression  being  taken  over  from  a
judgment  of  the  Court  of  Justice  of  the  European
Communities.  In  the  case  68/88  (judgment  of  21
September 1989, ECRp. 2965) the Court of Justice
expressed  itself  as  follows,  (the  Member  States)
‘must  ensure  in  particular  that  infringements  of
Community  law  are  penalised  under  conditions,
both  procedural  and  substantive,  which  are
analogous  to  those  applicable  to  infringements  of
national  law  of  a  similar  nature  and  importance
in  any  event,  make  the  penalty
and  which, 
effective,  proportionate  and  dissuasive’.

In  complying  with  this  ruling,  the  Member  States
have some discretion in determining the nature and
severity  of  the  penalties  which  may  be  provided
for.  These  need  not  always  necessarily  involve
deprivation  of  liberty.  Fines  might  be  imposed  in
addition  or  as  an  alternative  to  imprisonment.

to  provide 

for  penalties 

5.2.  The  Protocol  does,  however,  require  the  Member
States 
involving
deprivation  of  liberty,  which  can  give  rise  to
extradition, in the most serious cases. It will be for
the  Member  States  to  decide  what  criteria  or
factual  elements  determine  the  seriousness  of  an
offence 
legal
traditions.

light  of  their  respective 

in  the 

(1)  See  in  particular  Article  18  of  the  Protocol  on  the  privileges

and  immunities  of  the  European  Communities.

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5.3.  Paragraph  2  deals  with  the  link  between  criminal
law  and  disciplinary  rules  where  the  circumstances
are  such  that  one  and  the  same  act  of  corruption
may  be  subject  to  both;  priority  is  given  to  the
independence  of  national  or
principle  of  the 
European  disciplinary  systems  in  that  the  conduct
of criminal proceedings is ‘without prejudice to the
exercise  of  disciplinary  powers  by  the  competent
authorities against national officials or Community
officials’.

To take account of certain national legal traditions,
the  paragraph  further  allows  national  authorities
to  give  effect  to  the  principles  of  their  own
legislation  whereby,  in  determining  the  criminal
penalty  to  be  imposed,  account  may  be  taken  of
disciplinary  penalties  already  imposed  on  the  same
person  for  the  same  offence.  This  is  a  specific
provision  that  will  not  be  mandatory  in  Member
States  not 
to
disciplinary sanctions.

recognising  or  giving  effect 

Article  6

6.1.  This  Article  establishes  a 

series  of  criteria
conferring  jurisdiction  to  prosecute  and  try  cases
involving  the  offences  covered  by  the  Protocol,
active  and  passive  corruption  and  the  offences
specified in Article 4, on national enforcement and
judicial authorities.

6.2.  Pursuant  to  paragraph  1,  a  Member  State  is  to
establish  its  jurisdiction  in  four  situations:

its  territory, 

(a)  where  the  offence  is  committed  in  whole  or  in
part  on 
i. e.  the  corruption
manoeuvre  takes  place  there,  the  advantage  is
given  there  or  the  offending  agreement  is
reached  there,  irrespective  of  the  status  or  the
nationality  of  the  corruptor  or  the  official
involved (territoriality principle);

(active  personality  principle): 

(b) where  the  offender  is  a  national  or  one  of  its
the
officials 
criterion  of  the  offender’s  status  means  that
jurisdiction can be established regardless of the
lex  loci  delicti.  It  is  then  up  to  Member  States
to  prosecute  for  offences  committed  abroad,
including  in  non-member  countries.  This  is
particularly 
for  Member  States
which  do  not  extradite  their  own  nationals.

important 

(c)  where  the  offence  is  committed  against  a
national of the Member State, being an official,
institution
or  member,  of  a  Community 
(passive  personality  principle).  This 
is  of
particular  interest  in  cases  of  active  corruption

abroad by persons who are not nationals of the
relevant  Member  State;

(d) where  the  offender  is  a  Community  official
working  for  a  Community  institution  with  its
headquarters in the relevant Member State. The
headquarters  criterion  is  useful  for  exceptional
cases  not  covered  by  other  competence  rules,
notably  where  an  offence  is  committed  outside
the  Community  by  a  Community  official  who
is  not  a  national  of  a  Member  State (1).

6.3.  Paragraph  2  allows  any  Member  State  which  so
wishes  not  to  accept  or  to  accept  subject  to
conditions  any  of  the  rules  in  paragraph  1  (b),  (c)
and  (d)  by  making  a  declaration  to  that  effect
when giving the notification provided for in Article
9(2)  of  the  Protocol.

The  effect  of  Article  11(1),  as  will  be  seen,  is  that
Article  6(1)(b),  (c)  and  (d)  are  the  only  provisions
in  respect  of  which  reservations  may  be  entered.

Article  7

Article  7  refers  to  specific  provisions  of  the  Convention
declaring 
to  active  and  passive
corruption  as  defined  in  the  Protocol  and  to  the  offences
defined  in  Article  4.

them  applicable 

The  relevant  provisions  of  the  Convention  may  be
summarised  as  follows:

—  Article  3  establishes  that  business  managers  may  be

criminally liable,

—  Article 5(1), (2) and (4) deals with extradition and the

aut  dedere  aut  judicare  rule,

—  Article 6 establishes the principle of close cooperation
between  Member  States  in  cases  of  fraud  against  the
Community’s  financial  interests.

These three principles all apply without restriction to the
conduct  to  which  the  Protocol  applies.

(1)  Although Community officials as a general rule will have the
nationality  of  one  of  the  Member  States,  exceptions  to  this
principle  are  possible.

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—  Article  7  establishes  the  ne  bis  in  idem  rule,  which  is
also  applicable  in  Protocol  matters.  It  is  to  be  noted
that  the  enforcement  of  a  sentence  does  include  cases
where  enforcement  is  suspended  on  probation,

Detailed  commentaries  are 
the
Explanatory  Report  to  the  Convention.  This  Article  of
the  Protocol  reproduces  Article  8  of  the  Convention  in
order 
two
instruments.

consistency  between 

to  be 

ensure 

found 

the 

to 

in 

—  Article 9 allows the Member States to enact provisions
of  national  law  that  are  more  demanding  than  those
of the Convention. The Protocol likewise constitutes a
set  of  minimum  standards,

Article  8(2)  deals  with  the  question  in  which  cases  the
Court  of  Justice 
is  competent  concerning  disputes
between  Member  States  and  the  Commission.

—  Article  10  establishes,  inter  alia,  arrangements  for  the
provision of information by the Member States to the
Commission,  which  also  applies  in  Protocol  matters.

One  noteworthy  point  is  that  the  Court  of  Justice  has
specific 
concept  of
the 
Community  official  as  defined  in  Article  1.

jurisdiction 

interpret 

to 

Details  about  the  content  of  these  rules  are  given  in  the
Explanatory  Report  on  the  Convention.

This Article concerns the entry into force of the Protocol,
which  may  not  precede  that  of  the  Convention.

Article  9

Article  8

Article  10

This Article concerns the accession of new Member States
of  the  European  Union  to  this  Protocol.

Article  11

This  Article  specifies  the  jurisdiction  conferred  on  the
Court of Justice to settle disputes between Member States
and between Member States and the Commission relating
to  the  interpretation  or  application  of  the  Protocol (1).

This  Article  provides  that  reservations  may  be  entered  in
relation to Article 6(1)(b), (c) and (d) only. A reservation
may  be  withdrawn  at  any  time  by  notice  given  to  the
Secretary-General  of  the  Council.

(1)  It is noted that the Council by Act of 29 November 1996 has
drawn up the Protocol concerning the interpretation, by way
of  preliminary  rulings,  by  the  Court  of  Justice  of  the
European Communities, of the Convention on the Protection
of the European Communities’ financial interests (OJ C 151,
20.5.1997,  p.  1).  This  Protocol  covers  not  only  the
Convention  but  also  the  present  Protocol.