Explanatory Report on the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (Text approved by the Council on 3 December 1998)
Date: 1998-12-03
Institutions: Council of the European Union
Subjects: European convention, European official, civil servant, corruption, fraud, judicial cooperation in criminal matters in the EU

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(Acts  adopted  under  Title  VI  of  the  Treaty  on  European  Union)

on  the  Convention  on  the  fight  against  corruption  involving  officials  of  the  European
Communities  or  officials  of  Member  States  of  the  European  Union

EXPLANATORY  REPORT

(Text  approved  by  the  Council  on  3  December  1998)

(98/C  391/01)

I.  INTRODUCTION

The  criminal  law  in  the  Member  States  of  the  European  Union,  as  virtually  everywhere  in  the
world,  contains  provisions  to  combat  the  active  and  passive  corruption  of  national  officials.
While the definitions of offences of corruption may vary from Member State to Member State,
they  have  elements  in  common  which  make  it  possible  to  arrive  at  a  common  definition.

From an international rather than the national perspective, it has long been recognised that the
principal  weakness  in  the  fight  against  corruption  with  transnational  features  has  been  the  fact
that criminal law in the Member States has often failed to address the issue of the corruption of
foreign  officials  and  officials  employed  by  international  organisations.  Indeed,  the  definition  of
‘public  officer’  or  official,  for  the  purposes  of  applying  internal  criminal  law,  is  in  many
Member  States  only  applicable  to  national  officials;  even  if  the  term  is  not  more  narrowly
defined,  it  is  often  interpreted  restrictively.

Thus, the criminal law in most Member States does not extend to the criminalisation of conduct
aimed  at  corrupting  officials  of  other  Member  States,  even  where  it  took  place  in  their  own
territory or at the instigation of one of their own nationals (1). Even if the criminal conduct can
in  certain  circumstances  be  prosecuted  using  charges  other  than  corruption  such  as  fraud  or
breach  of  trust,  the  chances  are  that  the  corruption  itself  would  go  unpunished.

This situation, which had long been the focus of attention in international forums (in particular
the  OECD (2)  and  the  Council  of  Europe)  and  the  subject  of  numerous  recommendations  and
resolutions, has become increasingly intolerable in the European Union owing to the tightening
links between its Member States and their common membership of the European Community, a
supranational  organisation  founded  on  the  rule  of  law,  with  its  own  institutions  and  a  large
staff  of  officials.

Quite  apart  from  the  question  of  principle,  this  state  of  affairs  frequently  hampers  the  process
of judicial cooperation between Member States, where the double criminality condition has not
been  fulfilled.

An initial response to this state of affairs was the drawing up by the Council on 27 September
1996  of  the  Protocol (3)  to  the  Convention  of  26  July  1995  on  the  protection  of  the  European
Communities’  financial  interests (4);  the  said  Protocol  was  also  a  response  to  point  7(h)  of  the

(1)  See Commission communication to the European Parliament and the Council on a Union policy against

corruption  (COM(97)  192  final),  p.  3.

(2)  After  the  conclusion  of  this  Convention,  an  OECD  Convention  on  combating  bribery  of  foreign  public
officials  in  international  transactions  was  concluded  and  opened  for  signature  on  17  December  1997.

(3)  OJ  C  313,  23.10.1996,  p.  1.
(4)  OJ  C  316,  27.11.1995,  p.  49.

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Council  resolution  of  6  December  1994  on  the  legal  protection  of  the  financial  interests  of  the
Communities (1), which stated: ‘Member States should take effective measures to punish bribery
involving  officials  of  the  European  Communities  in  relation  to  the  financial  interests  of  the
Communities’.

However, owing to the subject matter of the parent Convention, the Protocol could only require
Member  States  to  punish  conduct  relating  to  fraud  against  the  financial  interests  of  the
European Communities, i. e.  according  to  the  definition  in  Articles  2  and  3  of  the  Protocol,  an
act  or  omission  ‘which  damages  or  is  likely  to  damage  the  European  Communities’  financial
interests’.

In  1996  the  Italian  Government  tabled  a  draft  Convention  in  order  to  ensure  that  all  corrupt
conduct  involving  Community  officials  or  Member  States’  officials,  and  not  just  that  which  is
linked  to  fraud  against  the  Communities’  financial  interests,  was  criminalised.  While  based
largely  on  the  provisions  and  definitions  on  which  delegations  had  agreed  in  the  earlier
discussions  on  the  Protocol,  it  was  nonetheless  a  proposal  for  a  free-standing  act  of  general
application  and  contained  the  requisite  additional  provisions  on  judicial  cooperation  and
jurisdiction  of  the  Court  of  Justice.  Following  this  initiative,  on  26  May  1997  the  Council
adopted  the  Act  drawing  up  the  Convention  on  the  fight  against  corruption  involving  officials
of  the  European  Communities  or  officials  of  Member  States  of  the  European  Union (2).

The operation of that Convention will also contribute to the proper functioning of the internal
market  and  to  the  implementation  of  political  guideline  No  13  of  the  action  plan  of  28  April
1997  to  combat  organised  crime (3),  approved  by  the  1997  Amsterdam  European  Council.

It  should  be  noted  that  parts  of  this  Explanatory  Report  have  been  elaborated  on  the  basis  of
the  comments  in  the  Explanatory  Reports  on  the  1995  Convention  on  the  protection  of  the
European  Communities’  financial  interests (4)  and  on  the  1996  Protocol  thereto (5).

II.  COMMENTARY  ON  THE  ARTICLES

Article  1

Definitions

These  categories  are  defined  by  reference  to  their
respective  statuses.

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

1.1.  The  general  definition  of  ‘official’  in  point  (a)
covers  various  categories  of  persons,  Community
officials  and  national  officials,  including  national
officials  of  another  Member  State,  in  order  to
the  broadest  and  most  homogenous
ensure 
application  possible  of  the  substantive  provisions
of  the  Convention  in  the  fight  against  corruption.

(1)  OJ  C  355,  14.12.1994,  p.  2.
(2)  OJ  C  195,  25.6.1997,  p.  1.
(3)  OJ  C  251,  15.8.1997,  p.  1.
(4)  OJ  C  191,  23.6.1997,  p.  1.
(5)  OJ  C  11,  15.1.1998,  p.  5.

1.2.  Point  (b)  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 experts seconded to the European
Communities  to  carry  out  functions  equivalent  to
those performed by Community officials and other
servants.

Members  of  the  Community 
institutions,  the
Commission,  the  European  Parliament,  the  Court

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of  Justice  of  the  European  Communities  and  the
European  Court  of  Auditors,  are  not  covered  by
this definition but are dealt with in Article 4 of the
Convention.

—  the  European  Agency  for  Safety  and  Health  at

Work (11),

—  the  Office  for  Harmonisation  in  the  Internal

Market  (Trade  Marks  and  Designs) (12),

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

—  the  European  Central  Bank (13),

—  the  Community  Plant  Variety  Office (14),

—  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 

in

Florence (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),

—  the  European  Agency  for  the  Evaluation  of

Medicinal  Products (10),

(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  as  last  amended  by  Regulation  (EC)  No
354/95  (OJ  L  41,  23.2.1995,  p.  1).

(4)  Council  Regulation 

(OJ  L  139,
30.5.1975,  p.  1).  Regulation  as  amended  by  Regulation
(EEC)  No  1947/93  (OJ  L  181,  23.7.1993,  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 as amended 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).

(10) Council  Regulation 

(OJ  L  214,
24.8.1993, p. 1). Regulation as amended by Regulation (EC)
No  649/98  (OJ  L  88,  24.3.1998,  p.  7).

(EEC)  No  2309/93 

—  the  Translation  Centre  for  the  Bodies  of  the

Union (15),

—  the  European  Monitoring  Centre  on  Racism

and  Xenophobia (16).

This  provision  concerns  personnel  of  existing  or
future bodies responsible in a very broad sense for
applying  Community  legislation,  already  enacted
or  yet  to  be  enacted  under  the  Community
Treaties.

1.4.  Point (c) 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 definition in
the criminal law of the official’s home State is thus
given  priority.  Where  a  national  official  of  the
prosecuting  Member  State  is  involved,  this  clearly
means  that  its  national  definition  is  applicable.
Where,  however,  an  official  of  another  Member
State  is  involved,  this  means  that  the  definition  in
the  law  of  that  Member  State  should  normally  be
applied  by  the  prosecuting  Member  State.  If  the
person concerned would not have had the status of
official  under  the  law  of  that  State,  that  definition
may  not  be  decisive.  This  is  clear  from  the  second
subparagraph  of  point  (c),  according  to  which  a
Member  State  is  not  bound  to  apply  another
Member  States’  definition  of  ‘national  official’

(11) Council  Regulation 

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

(EEC)  No  2062/94 

(12) Council  Regulation  (EC)  No  40/94  (OJ  L  11,  14.1.1994,  p.
1).  Regulation  as  amended  by  Regulation  (EC)  No  2868/95
(OJ  L  303,  15.12.1995,  p.  1).

(13) Article  4a  of  the  EC  Treaty;  Protocol  on  the  Statute  of  the
European  System  of  Central  Banks  and  of  the  European
Central  Bank,  annexed  to  the  Treaty  on  European  Union.
(14) Council  Regulation  (EC)  No  2100/94  (OJ  L  227,  1.9.1994,
p.  1).  Regulation  as  amended  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  as  amended  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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except  in  so  far  as  that  definition  is  compatible
with  its  national  law  and  may  therefore  opt  to
determine 
involving
that  corruption  offences 
national  officials  of  another  Member  State  refer
only  to  such  officials  whose  status  is  compatible
with  its  own  definition  of  national  officials.  While
there  is  no  specific  obligation  to  do  so,  a  Member
State  may  make  a  declaration  to  the  effect  that  it
has  decided  to  make  general  use  of  this  option.

It  should  be  noted  that  in  general  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.

does 

Article  4(2)  and  (3),  however,  shows  that  the
‘national 
concept 
not
of 
official’ 
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 own definition of
‘national  official’ 
these
categories  of  persons.

to  one  or  more  of 

Article  2

Passive  corruption

Article  2  defines  the  elements  of  the  offence  of  passive
the  Convention’s  other
corruption.  Like  many  of 
provisions,  the  wording  is  substantially  modelled,  with
the  necessary  adjustments,  on  that  of  the  corresponding
articles  of  the  Protocol  to  the  Convention  on  the
protection  of  the  European  Communities’  financial
interests  (hereinafter  ‘the  first  Protocol’).

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  Convention  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 cases where an 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 elements that constitute the material substance
of  the  corruption 
include  offers,  promises  or
advantages  of  any  kind  whatsoever  for  the  benefit
of  the  official  or  of  any  other  person.

‘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  list  is  not
exhaustive.  The  concept  of  advantage,  requested,
received  or  promised,  covers  all  kinds  of  material
or  intangible  advantages.

indirect 

For  the  purposes  of  the  Convention,  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,
paragraph  1  catches  deferred  payments,  provided
their  origin  lies  in  a  criminal  agreement  between
the  corrupted  and  the  corruptor.

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2.5.  The  provision  is  worded  so  that  the  request  or
acceptance  must  predate  the  official’s  act  or
omission  since  the  text  states  clearly  that:  ‘the  . . .
action  of  an  official  who  . . .  requests,  or  receives
advantages  . . .  or  accepts  a  promise  . . .  to  act  or
refrain  from  acting  . . .’.

Article  3

Active  corruption

Within  the  meaning  of  this  provision,  therefore,
where  an  advantage  is  received  after  an  act  has
been  performed  without  there  having  been  a  prior
request  or  acceptance,  there  will  be  no  obligation
on  Member  States  to  introduce  criminal  liability.
This  Article  does  not  apply  either  to  gifts  that  are
not related to any subsequent act by the official in
the  performance  of  his  duties.

Under  Article  11  of  the  Convention,  there  is  of
course  nothing  to  prevent  Member  States  who  so
wish 
that
from  also  criminalising  corruption 
consists  in  receiving  an  advantage  requested  or
accepted after the official has performed the act in
breach  of  his  official  duties.

This  Article  describes  the  components  of  the  offence  of
active  corruption  of  an  official.

The  provision  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 
from  possible
to  protect  officials 
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.

Paragraph  1  identifies  forms  of  punishable  conduct  on
the part of the corruptor that constitute active corruption
of  an  official.

2.6.  The  Convention  applies  to  conduct  that  is  related
to an official’s functions or duties. The Convention
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  the
acts  are  carried  out  in  breach  of  the  official’s
duties.

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

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

Whether  or  not  the  offence  exists  in  cases  where
the  corruptor  acts  deliberately  but  is  mistaken  as
to  the  authority  which  he  believes  is  vested  in  the
official  will  be  a  matter  for  determination  in
accordance  with  Member  States’  national  law.

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

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.

3.2.  The corruptor’s action may consist in promising or
giving,  directly  or  through  an  intermediary,  a
material  or  intangible  advantage  of  any  kind
whatsoever,  irrespective  of  whether  the  offer  is
acted  on  and  the  advantage  materialises.

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

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The  Article  makes  no  distinction  between  the
means,  direct  or  indirect,  whereby  the  corrupt
manoeuvre  is  undertaken.  It  includes  any  kind  of
corrupt manoeuvre directed at the official, whether
directly  or  through  a  third  party.

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.  Active  corruption  pursues  the  same  objective  as

passive  corruption;  see  at  2.6.

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

2(2);  see  at  2.7.

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.

Clearly,  the  rule  does  not  require  special  offences
necessarily  to  apply  in  respect  of  these  individuals
in a Member State. Where a Member State already
applies  the  same  provisions  to  the  corruption  of
ministers,  members  of  parliament  or  members  of
the  judiciary  as  it  applies  to  the  corruption  of
officials, then it will merely be required in addition
to  criminalise  corruption  of  members  of  the
Community 
those  general
provisions.

institutions  using 

Article  4

Assimilation

This  Article  is  designed  to  broaden  and  strengthen  the
scope  of  the  anti-corruption  measures  introduced  by  the
Convention,  by  requiring  that  each  Member  State’s
criminal law be adjusted to accommodate certain offences
committed  by  individuals  occupying  specific  posts  in  the
Community  institutions.  As  with  the  first  Protocol,  a
principle  of  assimilation  is  introduced  whereby  Member
States  will  be  bound  to  apply  to  members  of  the
Community 
same  descriptions  of
the 
corruption  offences  as  apply  to  individuals  occupying
similar  posts  within  their  own  institutions.

institutions 

4.2.  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,

—  the  Rigsrevisionen  in  Denmark,

—  the  Riksrevisionsverket  in  Sweden,

—  the  Valtiontalouden 

tarkastusvirasto/Statens

revisionsverk  in  Finland.

4.1.  Paragraph  1 

states 

that 
the  principle 
the  offences  applicable 

the
descriptions  of 
to
government  ministers,  members  of  parliament,
members of the highest courts and members of the
courts  of  auditors  shall  be  extended  to  include
their  counterparts  acting  in  the  exercise  of  their
duties  within  the  Community  institutions  (member
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).

of 

corruption,  members 

It  follows  that  for  the  purposes  of  punishable
the
offences 
Commission  will  be  assimilated  to  government
ministers,  members  of  the  European  Parliament  to
members  of  national  parliaments,  members  of  the
Court  of  Justice  of  the  European  communities  to

of 

4.3.  Paragraph  2  allows 

for 

liability  of  government  ministers 
legislation  applicable 

the  possibility  of
derogating  from  the  assimilation  principle  of
paragraph  1  in  those  Member  States  where  the
criminal 
is
in
governed  by  special 
specific  national  situations.  Use  of  the  option  of
derogation does not, however, preclude the need to
introduce  a  form  of  criminal  liability  for  offences
the
committed  against  or  by  members  of 
Commission  under  the  common  rules  of  national
criminal law.

This possibility may prove useful in Member States
like  Denmark,  where  the  rules  of  criminal  law
governing  ministers’ 
in  specific
situations  (e.g.  those  where  the  minister  can  be

liability  apply 

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held  criminally 
for  acts  done  by  his
subordinates)  in  which  other  persons  with  leading
positions  would  not  normally  be  criminally  liable.

liable 

defined  in  Articles  2  and  3  are  always  punishable
by  criminal  penalties,  in  other  words  triable  by
courts.

4.4.  Under  paragraph  3,  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’.

likewise  to  participation 

This  applies 
in  and
instigation  of  those  offences,  to  be  interpreted  in
accordance  with  the  definitions  given 
in  the
criminal  laws  of  each  Member  State.

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

law, 

With  particular  reference  to  persons  covered  by
paragraph 1, with regard to whom the assimilation
principle  generally  and  without  exclusions  implies
the
treatment  under  criminal 
an  equal 
following  should  be  noted.  Where  a  special  law  of
a  Member  State  confers  on  a  special  court  (or  a
specific  composition  of  an  ordinary  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  then  also  have  jurisdiction
in  similar  cases  concerning  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,  but  without  prejudice  to  national
provisions  governing  jurisdiction.

4.5.  Paragraph  4  provides  that  the  convention 

is
without  prejudice  to  provisions  governing  the
withdrawal  of 
the
Community  institutions.

immunity 

staff  of 

for 

the 

Withdrawal  of  immunity  continues  thus  to  be  a
prior  condition  for  exercising  jurisdiction.  In  this
the
convention 
connection 
obligation  of  each  of  the  institutions  concerned  to
give  effect  to  the  provisions  governing  privileges
and immunities, subject to existing procedures and
ordinary  means  of  redress  under  Community
law (1).

recognises 

Since  the  offences  of  active  and  passive  corruption
include  conduct  that  consists  in  making  promises
irrespective  of  whether  such  promises  are  actually
kept or fulfilled, it was not considered necessary to
impose  an  obligation  to  criminalise  the  attempt  to
commit  active  or  passive  corruption.  It  is  clear,
however,  that  Member  States  which  so  wish,  may
also  make  attempts  to  commit  the  offences  in
question  punishable.

Penalties  must  be  effective,  proportionate  and
dissuasive,  in  accordance  with  the  well-known
judgment  of  the  Court  of  Justice  of  the  European
Communities,  which  in  Case  68/88 (2)  stated:  (the
Member  States)  ‘must  ensure  in  particular  that
infringements  of  Community  law  are  penalised
under conditions, both procedural and substantive,
which  are  analogous 
to
infringements  of  national  law  of  a  similar  nature
and importance and which, in any event, make the
penalty  effective,  proportionate  and  dissuasive’.

those  applicable 

to 

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:  it  will  also  be  possible  to
impose  fines  in  addition  or  as  an  alternative  to
imprisonment.

5.2. 

In  serious  cases,  the  Convention  does,  however,
require  the  Member  States  to  provide  for  penalties
involving deprivation of liberty which can give rise
to  extradition.  In  any  event,  it  will  be  for  the
Member  States  to  decide  what  criteria  or  factual
elements  are  to  determine  the  seriousness  of  an
offence 
legal
traditions.

light  of  their  respective 

in  the 

Article  5

Penalties

5.1.  Article  5(1)  requires  the  Member  States  to  ensure
that  the  offences  of  active  and  passive  corruption

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

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

and  immunities  of  the  European  Communities.

(2)  Judgment  of  21  September  1989,  ECR  p.  2965.

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principle  of  the 
independence  of  national  or
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  official  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

Criminal  liability  of  heads  of  businesses

6.1.  This  Article  is  almost  completely  drawn  from
Article  3  of  the  Convention  on  the  protection  of
interests.
the  European  Communities’  financial 
Like  that  provision,  its  purpose  is  to  ensure  that
heads  of  businesses  or  other  persons  exercising
legal  or  effective  power  within  a  business  are  not
automatically  exempt  from  all  criminal  liability
where  active  corruption  has  been  committed  by  a
person  under  their  authority  acting  on  behalf  of
the  business.

The Convention leaves Member States considerable
freedom  to  establish  the  basis  for  criminal  liability
of  heads  of  businesses  and  decision-makers.

As  well  as  covering  the  criminal  liability  of  heads
of  businesses  or  decision-makers  on  the  basis  of
their  personal  actions  (as  authors  of,  associates  in,
instigators  of,  or  participants  in  the  fraud),  Article
6  allows  Member  States  to  consider  making  heads
of  businesses  and  decision-makers  criminally  liable
on  other  grounds.

Within  the  meaning  of  Article  6,  a  Member  State
may make heads of businesses and decision-makers
criminally  liable  if  they  have  failed  to  fulfil  a  duty
of  supervision  or  control  (culpa  in  vigilando).  In
this  connection  the  criminal  liability  of  heads  of
businesses  could  be  based  on  an  offence,  distinct

from  the  corruption,  of  failure  to  fulfil  an
obligation  under  national 
exercise
supervision  or  control.

law 

to 

The  criminal  liability  of  the  head  of  a  business  or
decision-maker  could  also  attach  to  negligence  or
incompetence.

Lastly, nothing in Article 6 prevents Member States
from  providing  for  objective  criminal  liability  to
attach  to  heads  of  businesses  and  decision-makers
by  virtue  of  others’  actions,  without  it  being
necessary  to  prove  fault,  negligence  or  failure  to
exercise  supervision  on  their  part.

The  Convention  does  not  however  deal  directly
with the problem of the liability of legal persons. It
should be borne in mind however that Article 3 of
the  Second  Protocol  to  the  Convention  on  the
protection of the European Communities’ financial
interests  requires  Member  States  to  provide  for
various  forms  of  liability  on  the  part  of  legal
persons,  including  liability  for  active  corruption
involving the financial interests of the Community.
A  similar  provision  is  incorporated  in  the  recent
OECD  Convention.  Thus  it  is  safe  to  say  that
Member  States  will  in  any  event  be  required  to
consider  the  matter  in  the  light  of  the  obligations
arising  from  those  legal  instruments.

Article  7

Jurisdiction

7.1.  This  Article  establishes  a 

series  of  criteria
conferring  jurisdiction  to  prosecute  and  try  cases
involving  the  offences  covered  by  the  Convention,
i.e.  active  and  passive  corruption  and  any  offences
introduced  under  the  principle  of  assimilation
specified in Article 4, on national enforcement and
judicial  authorities.  By  analogy  with  the  solution
already  adopted  in  the  context  of  instruments
relating  to  the  protection  of  the  Community’s
financial  interests,  four  criteria  for  jurisdiction  are
proposed,  only  one  of  which 
(territoriality
principle)  is  however  compulsory  for  all  Member
States,  since  a  derogation  may  be  made  from  each
of  the  other  three  criteria  by  virtue  of  the
possibility  of  a  declaration  provided 
in
paragraph  2.

for 

7.2.  Pursuant to paragraph 1, each Member State is, in
principle,  required  to  establish  its  jurisdiction  at
least  in  four  kinds  of  situation,  i.e.:

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

corruptor  or 

the  official 

(active  personality  principle): 

(b) where  the  offender  is  a  national  or  one  of  its
officials 
the
criterion  of  the  offender’s  status  means  that
jurisdiction can be established regardless of the
lex loci delicti. It is then up the 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,
or  Member,  of  a  Community 
institution
(passive  personality  principle).  This  principle  is
in  cases  of  active
of  particular 
corruption  abroad  by  persons  who  are  not
nationals  of  the  relevant  Member  State;

interest 

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

7.3.  As  has  already  been  mentioned,  paragraph  2
allows  any  Member  States  which  so  wishes  not  to
accept or to accept subject to conditions any of the
rules  in  points  (b),  (c)  and  (d)  by  making  a
the
declaration 
notification  provided  for  in  Article  13(2)  of  the
Convention.

that  effect  when  giving 

to 

It  should  be  borne  in  mind  that,  in  accordance
with Article 15 of the Convention, this provision is
one  of  only  two  in  respect  of  which,  as  will  be
seen,  reservations  may  be  entered.

Article  8

Extradition  and  prosecution

financial 

interests,  and 

European  Communities’ 
in
particular  on  Article  5  thereof,  modifying  it  only  as
required;  both  provisions  were  in  fact  expressly  made
applicable  also  to  the  first  Protocol  in  accordance  with
the  referral  clause  provided  for  in  Article  7  of  the  latter
instrument. As in Article 5 of the Convention referred to
above,  the  rules  contained  in  this  Article  are  intended  to
supplement,  in  regard  to  corruption  offences  involving
Community  officials  and  officials  of  the  Member  States,
the provisions on extradition of own nationals which are
already  in  force  between  the  Member  States  and  which
arise 
extradition
agreements.

from  bilateral  or  multilateral 

It  should  first  be  specified  that  a  number  of  Member
States do not extradite their own nationals. Article 8 lays
down rules to prevent persons alleged to have committed
acts  of  corruption  going  scot-free  because  extradition  is
refused  on  principle.

For  the  purposes  of  Article  8 
is  to  be
interpreted in the light of the declarations made in Article
6(1)(b) of the European Convention on Extradition of 13
December  1957  by  the  parties  to  that  Convention.

‘national’ 

Article  8  firstly  requires  a  Member  State  which  does  not
extradite  its  nationals  to  take  the  necessary  measures  to
establish  its  jurisdiction  over  the  offences  defined  and
punished within the meaning of Articles 2, 3 and 4 of the
Convention  when  committed  by  its  own  nationals  in
another  Member  State.

In  addition,  if  an  act  of  corruption  has  been  committed
in  the  territory  of  one  Member  State  by  a  national  of
another  Member  State  who  cannot  be  extradited  for  the
sole  reason  that  the  latter  Member  State  does  not
extradite 
its  own  nationals,  Article  8  requires  the
requested  Member  State  to  submit  the  case  to  its  legal
authorities  for  the  purpose  of  prosecution.  Thus,  Article
8(2) plainly sets out the principle aut dedere aut judicare.
This  provision 
intended  to  affect
national  rules  regarding  criminal  proceedings.

is  not,  however, 

In  order  to  apply  this  principle,  the  requesting  Member
State  undertakes  to  transmit  the  files,  information  and
exhibits  relating  to  the  offence  to  the  Member  State
its  national.  The  requesting
which 
Member  State  will  be  kept  informed  of  the  prosecution
and  its  outcome.

is  to  prosecute 

Article  8  too,  as  indeed  also  Articles  9,  10  and  11,  is
based largely on the Convention on the protection of the

(1)  In  this  respect  it  should  be  noted  that  although  Community
officials  as  a  general  rule  will  have  the  nationality  of  one  of
the  Member  States,  exceptions  to  this  principle  are  possible.

Article  8  sets  no  prior  conditions  on  the  proceedings
brought  by  the  requested  Member  State.  No  application
from  the  requesting  Member  State  is  needed  for  the
requested  Member  State  to  initiate  the  prosecution.

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It  should  also  be  stressed  that,  as  at  the  time  of
conclusion  of  the  first  Protocol,  it  was  not  considered
necessary  in  this  case  to  incorporate  the  provision,
contained  in  Article  5(3)  of  the  Convention  on  the
protection  of  the  European  Communities’  financial
interests,  which  prohibits  refusal  of  extradition  solely  on
account  of  the  fiscal  nature  of  the  offence.  Unlike
offences  against  the  protection  of  the  Community’s
financial  interests,  such  an  exception  cannot  be  relevant
in  the  case  of  corruption  offences.

Article  9

Cooperation

As  has  already  been  observed,  the  Convention 
is
concerned  with  providing  for  charges  against  both  cases
of  domestic  corruption  and  those  involving  Community
officials  or  officials  from  other  Member  States.  This
second  category  of  cases  is,  however,  by  far  the  more
innovative section of Convention and necessarily involves
aspects  of  transnationality.  In  the  face  of  the  particular
complexity of cross-border investigations into this matter,
cooperation  is  of  fundamental  importance.

The  forms  of  cooperation  in  paragraph  1  are  cited  as
examples.  The  expression  ‘for  example’  was  inserted  in
this provision to take account of the situation of Member
States  which  are  not  parties  to  all  the  relevant  European
Conventions  on  cooperation  in  criminal  matters.  The
forms of cooperation listed as examples are: mutual legal
assistance  in  criminal  matters,  extradition,  transfer  of
proceedings  and  the  enforcement  of  sentences  passed  in
another  Member  State,  allowing  the  most  appropriate
means  of  cooperation  to  be  chosen  in  each  specific  case.
The relevant Conventions currently applying between the
the  present
Member  States  are  not  affected  by 
Convention.

Paragraph  2  allows  for  the  situation  in  which  more  than
one  Member  State  has  jurisdiction  to  prosecute  an
offence  connected  with  the  same  facts.

In  such  cases,  this  paragraph  requires  Member  States  to
cooperate 
is  to  have
in  deciding  which  of  them 
jurisdiction  to  prosecute.  This  provision  should  improve
efficiency  by  enabling  prosecution  to  be  centralised  in  a
single  Member  State  wherever  possible.

Member  States  will  be  able  to  settle  such  conflicts  of
jurisdiction  by  reference,  for  example,  to  the  scale  of  the
corruption  committed  in  their  respective  territories,  the
place  where  the  advantages  in  question  were  provided,
the  place  where  the  suspects  were  arrested,  their
nationalities,  previous  prosecutions,  and  so  on.

Article  10

Ne  bis  in  idem

Paragraph  1  establishes  the  ne  bis  in  idem  rule.

This  rule  assumes  particular  importance  in  cases  of
international  corruption  which  are  liable  for  prosecution
in  courts  of  more  than  one  Member  State,  when  it  has
not been possible to centralise the prosecution in a single
Member  State  by  applying  the  principle  laid  down  in
Article  9(2).

This  Article  is  based  largely  on  the  Convention  on  the
application  of  the  ne  bis  in  idem  rule,  signed  in  Brussels
on  25  May  1987  in  the  context  of  European  Political
Cooperation.  Similar  provisions  are  contained  in  Article
54  and  onwards  of  the  1990  Convention  implementing
the  Schengen  Agreement.

Paragraph  2  limits  to  only  a  few  specified  cases  the
possibility  for  the  Member  States  to  draw  up  a
declaration. Such cases coincide with the three hypotheses
provided  for  in  Article  2  of  the  Convention  on  the
application of the ne bis in idem rule. In accordance with
paragraph  4,  however,  the  exceptions  considered  in  such
declarations  will  not  apply  if  the  Member  State  which
made  them  has  nevertheless  taken  action  against  the
person in question, requesting the other Member State to
bring  the  prosecution  or  granting  him  extradition.

Special  attention  must  be  paid  to  the  possibility  of  an
exception  provided  in  paragraph  2(c),  relating  to  facts
which were the subject of the judgement rendered abroad
and which were committed by an official contrary to the
duties of his office. Although taken from the Convention
on the application of the ne bis in idem rule, this does in
fact  seem  particularly  relevant 
in  the  case  of  this
Convention,  which 
is  concerned  exclusively  with
corruption  offences,  since,  in  all  the  cases  in  which  the
subject  of  the  judgement  rendered  abroad  was  acts  of
passive  corruption  by  the  foreign  official,  these  facts
would  certainly  have  been  committed  by  this  official
contrary  to  the  duties  of  his  office.  Paragraph  2(c)  may
therefore  be  of  particular  importance  in  the  context  of
this  Convention  depending  on  the  declarations  which
Member  States  may  make  at  the  time  of  ratification.

Paragraph  3  provides  that  periods  of  deprivation  of
liberty  served  in  another  Member  State  are  in  all  cases
taken  into  consideration  by  the  State  which  has  brought
a  further  prosecution.

Finally,  paragraph  5  states  that  the  principles  applying
between Member States and the declarations contained in
bilateral  or  multilateral  agreements  remain  unaffected  by
this  Article.

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Article  11

Internal  provisions

Article  11  allows  the  Member  States  to  adopt  internal
legal  provisions  which  go  further  than  those  of  the
Convention.  Like  the  Conventions  adopted  on  the
protection  of  financial  interests,  this  Convention  also
constitutes  a  set  of  minimum  standards.

Article  12

Court  of  Justice

This  Article  specifies  the  jurisdiction  conferred  on  the
Court  of  Justice  of  the  European  Communities  to  settle
disputes  between  Member  States  and,  in  certain  cases,
between  Member  States  and  the  Commission  relating  to
the  interpretation  or  application  of  the  Convention;  it
also provides for the Court of Justice to have jurisdiction
to  interpret  some  of  the  Articles  of  the  Convention  by
way  of  preliminary  rulings  at  the  request  of  national
courts.  The  Article  refers  in  part  to  similar  provisions
already  introduced  in  the  other  instruments  adopted  to
date in the context of Title VI of the Treaty on European
Union;  it  must  however  be  stressed  that  this  is  the  first
time  the  question  of  the  competence  of  the  Court  of
Justice  to  give  preliminary  rulings  has  been  dealt  with
and  resolved  directly  in  a  Convention,  instead  of  being
referred  to  a  separate  Protocol  as  was  the  case  with  the
Convention  on  the  establishment  of  a  European  Police
Office  (Europol) (1),  the  Convention  on  the  protection  of
the  European  Communities’  financial  interests  and  the
Convention  on  the  use  of  information  technology  for
customs  purposes (2).

Paragraph  1  specifies  the  conditions  under  which  the
Court  of  Justice  has  jurisdiction  to  rule  on  disputes
interpretation  or
between  Member  States  on 
application  of  the  Convention.

the 

It  is  stipulated  in  that  paragraph  that  any  dispute  will  in
an initial stage be examined by the Council in accordance
with  the  procedure  set  out  in  Title  VI  of  the  Treaty  on
European Union with a view to reaching a solution. If no
solution  is  found  within  six  months,  a  Member  State
party  or  the  Member  States  parties  to  the  dispute  may
refer  the  dispute  to  the  Court  of  Justice  for  a  ruling.

As  with  the  Convention  on  the  protection  of  the
European  Communities’  financial  interests,  the  provision
concerning disputes between one or more Member States
and  the  Commission  is  limited  to  those  provisions  of  the
Convention  where  such  a  dispute  may  possibly  occur.
Those  provisions  are  Article  1,  ‘Definitions’,  with  the
express  exclusion  of  point  (c)  which  defines  ‘national
official’  with  reference  only  to  the  national  law  of  each

Member  State,  and  the  Articles  on  the  charge  of  passive
and  active  corruption  and  the  assimilation  of  corruption
of  Members  of  the  Community  institutions  in  so  far  as
questions  of  Community  law,  the  Community’s  financial
interests  or  Community  members  or  officials  are
involved.

As  regards  procedure,  paragraph  2  provides  that,  in
disputes between Member States and the Commission, an
attempt must first be made to reach a settlement through
negotiation.  If  negotiation  fails,  the  dispute  may  be
submitted  to  the  Court  of  Justice.

The  Court’s  jurisdiction  to  give  preliminary  rulings  on  a
matter  concerning  the  interpretation  of  the  Convention,
provided  for  in  paragraph  3,  is  not  extended  to  all  the
provisions of the Convention but is limited to the Articles
which  involve  questions  of  relevance  to  Community  law
and  excludes  those  Articles  concerning  penalties,  liability
of  heads  of  businesses,  rules  governing  jurisdiction,
provisions  on  legal  cooperation  and  provisions  on  the
application of the ne bis in idem principle. This approach
may  be  said  to  constitute  a  further  innovation  compared
with  the  solution  adopted  previously  in  the  case  of  the
to  Conventions,  which
abovementioned  Protocols 
provided for the possibility of interpretation extending to
all  provisions,  without  exception,  of  such  Convention
and  Protocols.

Paragraphs  4,  5  and  6  are  based  on  the  provisions  on
preliminary rulings in the Protocol of 29 November 1996
on  the  interpretation,  by  way  of  preliminary  rulings,  by
the Court of Justice of the European Communities of the
Convention  on 
the  European
the  protection  of 
Communities’ financial interests (3). Paragraph 4 provides
that  the  competence  of  the  Court  of  Justice  in  respect  of
preliminary  rulings  is  subject  to  acceptance  by  the
Member  State  concerned  by  a  declaration.  On  the  basis
of  paragraph  5, 
the
possibility  of  asking  for  preliminary  rulings  to  the  courts
against  whose  decision  there  is  no  judicial  remedy  under
national law. Paragraph 6 provides that the Statute of the
Court  of  Justice  and  its  Rules  of  Procedure  shall  apply
concerning  proceedings  pursuant  to  Article  12.

the  declaration  may  restrict 

Article  13

Entry  into  force

13.1.  This  Article  concerns  the  entry  into  force  of  the
Convention  in  accordance  with  the  relevant  rules

(1)  OJ  C  316,  27.11.1995,  p.  2.
(2)  OJ  C  316,  27.11.1995,  p.  34.

(3)  OJ  C  151,  20.5.1997,  p.  2.

C  391/12

EN

Official  Journal  of  the  European  Communities

15.12.98

established  by  the  Council.  The  Convention  will
enter  into  force  90  days  after  the  notification
referred  to  in  paragraph  2  by  the  last  Member
State  to  fulfil  that  formality.

13.2.  As with the conclusion of some other Conventions
between  the  Member  States,  it  must  further  be
pointed  out  that  paragraph  4  provides  for  the
application  of  the  provisions  of  the  Convention,
before  its  entry  into  force,  in  mutual  relations
between 
those  Member  States  which  have
deposited  the  relevant  declaration.  There  seems  to
be justification for the provision of such a clause in
the  Convention  which  does  not  appear  in  the
Convention  on  the  protection  of  the  European
Communities’ 
that
Convention  it  is  essential  that  all  Member  States
are  equally  committed  to  protecting  a  common
interest.  However,  under  the  present  Convention,
which  does  not  have  as  its  sole  objective  the
protection  of  an  interest  common  to  all  Member
States  but  also  the  protection  of  the  interests  of
individual  Member  States,  there  is  no  objection  to
allowing two or more Member States to rely on it,
in  anticipation  of  its  adoption  by  all  Member
States.

interests. 

financial 

For 

As  regards  cases  which  may  involve  Community
officials,  it  should  be  borne  in  mind  that,  in  the
event of early application of the Convention under
paragraph  4,  the  Member  States  which  make  such
a declaration will also be obliged to implement the
Convention 
in  cases  of  active  and  passive
corruption  of  such  officials.

This  analysis  seems  to  be  confirmed  by  paragraph
5  which  stipulates  that,  even  in  the  absence  of  the
declaration  of  early  application,  the  provisions  of
the  Convention  may 
in
relations  between  two  Member  States,  simply  on

likewise  be  applied 

the  basis  of  bilateral  agreements.  The  provision
appears  essentially  to  open  up  the  possibility  for  a
Member  State  to  apply  the  Convention  on  a
bilateral  basis  with  another  Member  State  without
necessarily  having  to  allow  application  thereof  to
its  own  relations  with  other  Member  States  or  in
respect  of  Community  officials.

In  any  case,  the  provisions  of  Article  12  on  the
Court  of  Justice  only  apply  once  the  Convention
has  entered  into  force  after  its  ratification  by  all
Member  States.

Article  14

Accession  of  new  Member  States

This  Article  concerns  the  accession  to  the  Convention  of
future  Member  States  in  accordance  with  the  rules
already  laid  down  in  other  Union  instruments.  The  only
special  feature  to  be  noted  concerns  paragraph  5,  which
provides  for  the  possibility  for  acceding  States  also  to
have  recourse  to  the  clause  allowing  early  application  in
the  event  that  the  Convention  has  not  yet  entered  into
force  at  the  time  of  their  accession.

Article  15

Reservations

This  Article  stipulates  that  no  reservation  is  authorised,
with  the  exception  of  those  expressly  referred  to  in  the
text  of  the  Convention  with  regard  to  determination  of
jurisdiction  other  than  the
various  rules  governing 
principle of strict territoriality (Article 7) and application
of the ne bis in idem principle (Article 10). A reservation
may  be  withdrawn  at  any  time  by  notice  given  by  the
General  Secretariat  of  the  Council.