Initiative of the Kingdom of Denmark with a view to the adoption of Council Framework Decision on combating corruption in the private sector
Date: 2002-08-02
Institutions: Denmark
Subjects: EC Decision, corruption, judicial cooperation in criminal matters in the EU, organised crime, penalty, private sector

2.8.2002

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Official Journal of the European Communities

C 184/5

Article 4

Implementation

Council shall assess, by [. . .] (**) at the latest, the extent to
which Member States have taken the necessary measures in
order to comply with this Framework Decision.

1. Member States shall adopt
comply with this Framework Decision by [. . .] (*).

the necessary measures to

2. Member States shall transmit to the General Secretariat of
the Council of the European Union and to the Commission of
the European Communities, at the latest by the same date, the
text of the provisions transposing into their national law the
obligations imposed on them under this Framework Decision.
In accordance with a report established on the basis of this
information and a written report from the Commission, the

Article 5

Entry into force

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

Done at . . .

For the Council

The President

. . .

(*) Two years after the date on which the Framework Decision is

adopted.

(**) Three months after the date on which the Framework Decision is

implemented.

Initiative of the Kingdom of Denmark with a view to the adoption of Council Framework
Decision on combating corruption in the private sector

(2002/C 184/04)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in
particular Articles 29, 31(e) and 34(2)(b) thereof,

Having regard to the initiative of the Kingdom of Denmark,

Having regard to the opinion of the European Parliament,

Whereas:

(1) Along with globalisation, recent years have brought an
increase in cross-border trade in goods and services. Any
corruption in the private sector within a Member State is
thus not just a domestic problem but also a transnational
problem, most effectively tackled by means of EU joint
action.

(2) On 26 May 1997 the Council approved a Convention on
the fight against corruption involving officials of
the
European Communities or officials of Member States of
the European Union (1). However, a number of Member
States have not yet ratified that Convention.

(3) On 22 December 1998, the Council also adopted Joint
Action 98/742/JHA on corruption in the private sector (2).

(1) OJ C 195, 25.6.1997, p. 2.
(2) OJ L 358, 31.12.1998, p. 2.

In connection with the adoption of that Joint Action, the
Council issued a statement to the effect that it agreed that
the Joint Action represents the first step at EU level
towards combating such corruption, and that additional
measures will be implemented at a later stage in the light
of the outcome of the assessment which is to take place
pursuant to Article 7(2) of the Joint Action. A report on
Joint Action into
transposition of
Member States'
national law is not yet available.

that

(4) Under Article 29 of the Treaty on European Union, it is the
Union's objective to provide citizens with a high level of
safety within an area of freedom, security and justice, an
objective to be achieved by preventing and combating
crime, organised or otherwise, including corruption.

(5) According to point 48 of the conclusions of the European
Council meeting in Tampere on 15 and 16 October 1999,
corruption is an area of particular relevance in establishing
minimum rules on what constitutes a criminal offence in
Member States and the penalties applicable.

(6) An OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions was
approved at a negotiating conference on 21 November
1997, and the Council of Europe has also approved a
Criminal Law Convention on Corruption, which opened
for signature on 27 January 1999. That Convention is
accompanied by an Agreement establishing the Group of
States against Corruption (GRECO). Negotiations have also
been opened for
a UN Convention on combating
corruption.

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Official Journal of the European Communities

2.8.2002

(7) Member States attach particular importance to combating
corruption in both the public and the private sector, in the
belief that in both those sectors it poses a threat to a
law-abiding society as well as distorting competition and
impeding sound economic development.

(8) The aim of this Framework Decision is in particular to
ensure that both active and passive corruption in the
private sector is a criminal offence in all Member States,
that legal persons may also be held responsible for such
offences,
effective,
offences
that
proportionate and dissuasive penalties,

incur

and

the

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

For the purposes of this Framework Decision:

commission of the conduct referred to in Article 2 constitute
criminal offences.

Article 4

Convention-related commitments

1.
Those Member States which have not yet ratified the
Convention on corruption shall undertake to do so within
one year following the entry into force of this Framework
Decision.

2.
Those Member States which have not yet ratified the
Council of Europe Convention on corruption shall undertake
to do so within one year following the entry into force of this
Framework Decision.

Article 5

Penalties

— ‘Convention on corruption’ means the Convention of 26
May 1997 on the fight against corruption involving
officials of
the European Communities or officials of
Member States of the European Union;

1.
Each Member State shall take the necessary measures to
ensure that the conduct referred to in Articles 2 and 3 is
punishable by a maximum penalty of between at least one
and three years of imprisonment.

— ‘Council of Europe Convention on corruption’ means the
Council of Europe Criminal Law Convention on Corruption
of 27 January 1999;

In addition, each Member State shall take the necessary
2.
measures to ensure that it is possible, where special circum-
stances so dictate, e.g. in the case of repeat offences:

— ‘legal person’ means any entity having such status under the
applicable national law, except for States or other public
bodies acting in the exercise of State authority and for
public international organisations.

Article 2

Active and passive corruption in the private sector

following intentional

Member States shall take the necessary measures to ensure that
criminal
the
offence, when it
is committed in the course of business
activities:

constitutes a

conduct

(a) promising, offering or giving, directly or through an inter-
mediary, to a person who in any capacity directs or works
for a private-sector entity, an undue advantage of any kind,
for that person or for a third party, in order that the person
should perform or refrain from performing any act,
in
breach of that person's duties;

(b) directly or through an intermediary, requesting or receiving
an undue advantage of any kind, or accepting the promise
of such an advantage, for oneself or for a third party, while
in any capacity directing or working for a private-sector
entity, in order to perform or refrain from performing any
act, in breach of one's duties.

Article 3

Instigation, aiding and abetting, incitement and attempt

Member States shall take the necessary measures to ensure that
inciting and attempting
instigating,

aiding and abetting,

(a) as a corollary of a conviction for the practices referred to in
Articles 2 and 3, temporarily to disqualify a natural person
from carrying on a business, or from carrying it on in
certain forms, where the facts established give reason to
believe there to be a clear risk of abuse of position or
office;

(b) temporarily to disqualify a natural person from being a
founding member, manager or director of any limited-
liability company or company requiring special public
approval, where the facts established give reason to
believe there to be a clear risk of abuse of position or
office.

Article 6

Liability of legal persons

Each Member State shall take the necessary measures to
1.
ensure that legal persons can be held liable for offences referred
to in Articles 2 and 3 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

(b) an authority to take decisions on behalf of the legal person;

or

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

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Apart from the cases provided for in paragraph 1, each
2.
Member State shall take the necessary measures to ensure that
a legal person can be held liable where the lack of supervision
or control by a person referred to in paragraph 1 has made
possible the commission of an offence of the type referred to
in Articles 2 and 3 for the benefit of that legal person by a
person under its authority.

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

Article 7

Penalties for legal persons

1.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 6(1) is
punishable by effective, proportionate and dissuasive penalties,
which shall
include criminal or non-criminal fines and may
include other penalties such as:

Any Member State may decide that it will not apply the
2.
jurisdiction rules in paragraph 1(b) and (c), or will apply them
only in specific cases or circumstances, where the offence has
been committed outside its territory.

3.
Any Member State which, under its domestic law, does
not as yet extradite its own nationals shall take the necessary
measures to establish its jurisdiction with regard to the offences
referred to in Articles 2 and 3, when committed by its own
nationals outside its territory.

4. Member States which decide to apply paragraph 2 shall
inform the General Secretariat of the Council of the European
Union (General Secretariat of the Council) and the Commission
of
(Commission) accordingly,
where appropriate with an indication of the specific cases or
circumstances in which the decision applies.

the European Communities

Article 9

Repeal

(a) exclusion from entitlement to public benefits or aid;

Joint Action 98/742/JHA is hereby repealed.

(b) temporary or permanent disqualification from the practice

of commercial activities;

Article 10

Implementation

(c) placing under judicial supervision; or

(d) a judicial winding-up order.

2.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 6(2) is
punishable by penalties or measures which are effective,
proportionate and dissuasive.

Article 8

Jurisdiction

1. Member States shall
take the necessary measures to
comply with this Framework Decision by [. . .] (*) at the latest.

By the same date, Member States shall forward to the
2.
General Secretariat of
the Council and to the Commission
the text of the provisions transposing into their national law
the obligations
this Framework
imposed on them under
Decision. On the basis of a report drawn up from that
information and a written report from the Commission, the
Council shall assess, by [. . .] (**), whether Member States
have taken the necessary measures
to comply with this
Framework Decision.

1.
Each Member State shall take the necessary measures to
establish its jurisdiction with regard to the offences referred to
in Articles 2 and 3, where the offence has been committed:

Article 11

Entry into force

(a)

in whole or in part within its territory;

(b) by one of its nationals or residents; or

(c)

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

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

Done at . . .

For the Council

The President

. . .

(*) Date to be inserted: two years after adoption of the Framework

Decision.

(**) Date to be inserted:

three months after
implementation of the Framework Decision.

the time limit

for