Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector
Date: 2003-07-22
Institutions: Council of the European Union
Subjects: corruption, judicial cooperation in criminal matters in the EU, penalty, private sector

L 192/54

EN

Official Journal of the European Union

31.7.2003

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

COUNCIL FRAMEWORK DECISION 2003/568/JHA

of 22 July 2003

on combating corruption in the private sector

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in parti-
cular Article 29, Article 31(1)(e) and Article 34(2)(b) thereof,

Having regard to the initiative of the Kingdom of Denmark (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

(3)

(4)

(5)

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 trans-
national problem, most effectively tackled by means of a
European Union joint action.

On 27 September 1996 the Council adopted the Act
drawing up a Protocol to the Convention on the Protec-
tion of the European Communities' Financial Interests (3).
The Protocol, which entered into force on 17 October
2002, contains definitions of and harmonised penalties
for offences of corruption.

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 (4).

On 22 December 1998, the Council also adopted Joint
Action 98/742/JHA on corruption in the private
sector (5). 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
European Union level towards combating such corrup-
tion, and that additional measures will be implemented
at a later stage in the light of the outcome of the assess-
ment which is to take place pursuant to Article 8(2) of
the Joint Action. A report on Member States' transposi-
tion of that Joint Action into national
law is not yet
available.

On 13 June 2002 the Council adopted Framework Deci-
sion 2002/584/JHA on the European arrest warrant and
the Member
the

procedures

surrender

between

(1) OJ C 184, 2.8.2002, p. 5.
(2) Opinion of 22 November 2002 (not yet published in the Official

Journal).

(3) OJ C 313, 23.10.1996, p. 1.
(4) OJ C 195, 25.6.1997, p. 2.
(5) OJ L 358, 31.12.1998, p. 2.

(6)

(7)

(8)

(9)

States (6), in which corruption is included in the list of
offences falling within the scope of the European arrest
warrant, in respect of which prior verification of double
criminality is not required.

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.

the conclusions of

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

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 estab-
lishing the Group of States against Corruption (GRECO).
Negotiations have also been opened for a UN Conven-
tion on combating corruption.

States

attach

particular

importance

Member
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 in relation to the purchase of goods or
commercial
services and impeding sound economic
development. In that context the Member States which
have not yet ratified the European Union Convention of
26 May 1997 and the Council of Europe Convention of
27 January 1999 will consider how to do so as soon as
possible.

(6) OJ L 190, 18.7.2002, p. 1.

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Official Journal of the European Union

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(10)

The aim of this Framework Decision is in particular to
ensure that both active and passive corruption in the
private sector are criminal offences in all Member States,
that legal persons may also be held responsible for such
offences, and that these offences incur effective, propor-
tionate and dissuasive penalties,

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

For the purposes of this Framework Decision:

— ‘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,

— ‘breach of duty’ shall be understood in accordance with
national law. The concept of breach of duty in national law
should cover as a minimum any disloyal behaviour consti-
tuting a breach of a statutory duty, or, as the case may be,
a breach of professional regulations or instructions, which
apply within the business of a person who in any capacity
directs or works for a private sector entity.

Article 2

Active and passive corruption in the private sector

take the necessary measures to
1. Member States shall
the following intentional conduct constitutes a
ensure that
criminal offence, when it is carried out in the course of busi-
ness activities:

(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 that
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.

Paragraph 1 applies to business activities within profit

2.
and non-profit entities.

Declarations referred to in paragraph 3 shall be commu-
4.
nicated to the Council at the time of the adoption of this
Framework Decision and shall be valid for five years as from
22 July 2005.

5.
The Council shall review this Article in due time before
22 July 2010 with a view to considering whether it shall be
possible to renew declarations made under paragraph 3.

Article 3

Instigation, aiding and abetting

Member States shall take the necessary measures to ensure that
instigating, aiding and abetting the conduct referred to in
Article 2 constitute criminal offences.

Article 4

Penalties and other sanctions

1.
Each Member State shall take the necessary measures to
ensure that the conduct referred to in Articles 2 and 3 is
punishable by effective, proportionate and dissuasive criminal
penalties.

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

3.
Each Member State shall take the necessary measures in
accordance with its constitutional rules and principles to ensure
that where a natural person in relation to a certain business
activity has been convicted of the conduct referred to in Article
2, that person may, where appropriate, at least in cases where
he or she had a leading position in a company within the busi-
ness concerned, be temporarily prohibited from carrying on
this particular or comparable business activity in a similar posi-
tion or capacity, if the facts established give reason to believe
there to be a clear risk of abuse of position or of office by
active or passive corruption.

Article 5

Liability of legal persons

1.
Each Member State shall take the necessary measures to
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;

3.
A Member State may declare that it will limit the scope
of paragraph 1 to such conduct which involves, or could
involve, a distortion of competition in relation to the purchase
of goods or commercial services.

(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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Official Journal of the European Union

31.7.2003

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
instigators or accessories in an
are involved as perpetrators,
offence of the type referred to in Articles 2 and 3.

Article 6

Penalties for legal persons

1.
Each Member State shall take the necessary measures to
ensure that a legal person held liable pursuant to Article 5(1) is
punishable by effective, proportionate and dissuasive penalties,
which shall
include criminal or non-criminal fines and may
include other penalties such as:

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

(b) temporary or permanent disqualification from the practice

of commercial activities;

(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 5(2) is
punishable by penalties or measures which are effective,
proportionate and dissuasive.

Article 7

Jurisdiction

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

(a) in whole or in part within its territory;

(b) by one of its nationals; or

Any Member State which, under its domestic law, does
3.
not as yet surrender 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 and the Commis-
sion accordingly, where appropriate with an indication of the
specific cases or circumstances in which the decision applies.

Article 8

Repeal

Joint Action 98/742/JHA shall be repealed.

Article 9

Implementation

take the necessary measures to
1. Member States shall
comply with the provisions of this Framework Decision before
22 July 2005.

2.
By the same date, Member States shall transmit to the
General Secretariat of the Council and the Commission the text
of the provisions transposing into their national law the obliga-
tions imposed on them under this Framework Decision. On the
basis of a report established using this information and a
written report from the Commission, the Council shall before
22 October 2005 assess the extent to which Member States
have complied with the provisions of this Framework Decision.

Article 10

Territorial application

This Framework Decision shall apply to Gibraltar.

Article 11

Entry into force

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

(c) for the benefit of a legal person that has its head office in

the territory of that Member State.

Done at Brussels, 22 July 2003.

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.

For the Council

The President

G. ALEMANNO