Initiative of the Federal Republic of Germany with a view to the adoption of a Council Framework Decision on criminal law protection against fraudulant or other unfair anti-competitive conduct in relation to the award of public contracts in the common market
Date: 2000-09-04
Institutions: Germany
Subjects: Germany, award of contract, competition law, criminal procedure, fraud, public contract

4.9.2000

EN

Official Journal of the European Communities

C 253/3

(Preparatory acts pursuant to Title VI of the Treaty on European Union)

Initiative of the Federal Republic of Germany with a view to the adoption of a Council
fraudulant or other unfair
Framework Decision on criminal

law protection against

anti-competitive conduct in relation to the award of public contracts in the common market

(2000/C 253/02)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in
particular Articles 31(e) and 34(2)(b) thereof,

contracts by Community

of
and their
protection by the criminal law will therefore also serve to
safeguard
European
the
Communities,

interests of

institutions

financial

the

On the initiative of the Federal Republic of Germany (1),

HAS ADOPTED THIS FRAMEWORK DECISION:

After consultation of the European Parliament (2),

Whereas:

Article 1

Definitions

(1)

It is necessary to strengthen the protection of both the
financial
fair
competition.

interests of contracting entities and of

For the purposes of this Framework Decision:

(2) Contracts concluded in Member States by public entities,
including entities operating in the water, energy, transport
and telecommunications
are awarded above
certain thresholds in accordance with the requirements of
Community law.

sectors,

(3) The general offences of fraud in Member States have only
a limited effect in enforcing Community law on awarding
contracts in this field.

(4) The established possibilities under Community law for
imposing competition law sanctions are aimed only at
undertakings.

(5) The enforcement of Community law on the award of
contracts must be
effective
secured by
sanctions which, in the case of fraudulent or other unfair
anti-competitive conduct by natural persons, should form
part of criminal law.

additional

(6)

the provisions of Community law on
In practice
procurement are applied mutatis mutandis to the awarding

(a)

(cid:145)public contract(cid:146) shall mean a supply, works, or service
contract falling within the scope of the Council Directives
coordinating procurement procedures for such contracts
less than the thresholds
insofar as their value is not
it shall cover a
designated in each of
corresponding
European
Communities or by the institutions set up in accordance
with the Treaties establishing the European Communities;

these Directives;
by
awarded

contract

the

(b)

(cid:145)undertaking(cid:146) shall mean a tenderer or candidate pursuant
to the Council Directives
coordinating procurement
procedures for the award of public contracts;

(c)

(cid:145)legal person(cid:146) shall mean any legal entity having such status
under the applicable national
for States or
other public bodies acting in the exercise of their sovereign
rights and for public international organisations.

law, except

Article 2

Fraudulent or other unfair anti-competitive conduct in
relation to the award of public contracts in the Common
Market

(1) OJ C (cid:133)
(2) OJ C (cid:133)

1.
of

For the purposes of this Framework Decision the offence
in

fraudulent or other unfair anti-competitive conduct

C 253/4

EN

Official Journal of the European Communities

4.9.2000

relation to the award of public contracts shall have been
committed if a person acting for an undertaking intentionally
makes an offer based on an unlawful agreement or concerted
practice
the
between
contracting entity:

undertakings

causing

aimed

at

(a) as a result of a direct or indirect promise, offer or grant of
an advantage to a person, for that person himself or for a
third person, in return for the award of a public contract
in breach of duty, or

(b) as a result of other collusive combination with the person

responsible for the award of the contract, or

(c) by concealing such an agreement

to accept a particular offer.

Every Member State shall take the necessary measures to
2.
ensure that the conduct referred to in paragraph 1 shall be a
criminal offence.

as well as for involvement as accessories to, or instigators of,
the commission of such a criminal offence.

2.
Apart from the cases provided for in paragraph 1, each
Member State shall take the necessary measures to ensure that
a legal person can be held liable, pursuant to Article 5(2),
where the lack of supervision or control by a person referred
to in paragraph 1 of
this Article has made possible the
commission of a criminal offence within the meaning of
Article 2 for the benefit of that legal person by a person under
its authority.

Liability of a legal person under paragraphs 1 and 2 shall
3.
not exclude criminal proceedings against natural persons who
are involved as perpetrators or instigators of, or accessories to,
a criminal offence within the meaning of Article 2.

Article 5

Penalties for legal persons

Article 3

Penalties

Each Member State shall take the necessary measures to
1.
ensure that a legal person held liable pursuant to Article 4(1) is
punishable by effective, proportionate and dissuasive penalties,
which shall
include criminal or non-criminal fines and may
include other penalties such as:

Each Member State shall take the necessary measures to ensure
that
the criminal offence referred to in Article 2, and the
acting as an accessory to, or instigator of, such an offence, are
punishable by effective, proportionate and dissuasive criminal
penalties including, at least in serious cases, penalties involving
deprivation of liberty which can give rise to extradition.

(a) measures for exclusion from entitlement to public aid;

(b) measures for temporary or permanent disqualification from

the exercise of commercial activities;

Article 4

Liability of legal persons

(c) placing under judicial supervision;

(d) a judicial winding-up order.

1.
Each Member State shall take the necessary measures to
ensure that legal persons can be held liable, pursuant to Article
5(2), for a criminal offence within the meaning of Article 2
committed for
their benefit by any person acting either
individually or as part of an organ of the legal person, who
has a leading position within the legal person, based on:

(a) a power of representation of the legal person, or

2.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 4(2) is
punishable by effective, proportionate and dissuasive penalties
or measures.

Article 6

Subsidiarity of Articles 4 and 5

(b) an authority to take decisions on behalf of

the legal

person, or

(c) an authority to exercise control within the legal person,

Articles 4 and 5 shall not apply to the extent that provisions
under the law of the European Communities concerning the
liability of legal persons and penalties for legal persons apply
to a criminal offence pursuant to Article 2.

4.9.2000

EN

Official Journal of the European Communities

C 253/5

Article 7

Jurisdiction

Article 8

Implementation of this Framework Decision

Each Member State shall take the necessary measures to
1.
establish its jurisdiction with regard to a criminal offence
pursuant to Article 2 where the criminal offence has been
committed:

the necessary measures to
1. Member States shall adopt
comply with the provisions of this framework Decision by
(cid:133) (*).

(a)

in whole or in part within its territory; or

(b) by one of

its nationals, provided that

that
Member State may require the offence to be punishable
also in the country where it occurred; or

the law of

(c)

for the benefit of a legal person that has its head office in
the territory of that Member State.

2.
Any Member State may decide that it will not apply, or
will apply only in specific cases or circumstances, the rule set
out in paragraph 1(b) and paragraph 1(c).

3. Member States shall inform the General Secretariat of the
Council where they decide to invoke paragraph 2, where
appropriate with an indication of
the specific cases or
circumstances in which that decision applies.

Any Member State which, under

law, does not
4.
extradite its own nationals shall take the necessary measures to
establish its jurisdiction with regard to the criminal offences
referred to in Article 2, when committed by its own nationals
outside its territory.

its

2. Member States shall send the General Secretariat of the
Council and the Commission of the European Communities
the text of the provisions by means of which their obligations
under this framework Decision have been transposed into
national law.

The Council will assess, on the basis of appropriate
their

3.
information,
obligations under this Framework Decision by (cid:133) (**).

fulfilment by Member States of

the

Article 9

Entry into force

This Framework Decision shall enter into force on the date of its
publication in the Official Journal of the European Communities.

Done at (cid:133)

For the Council

The President

(cid:133)

(*) Three years after entry into force of this Framework Decision.
(**) Four years after entry into force of this Framework Decision.