COMMISSION STAFF WORKING PAPER to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Accompanying the document COMMUNICATION FROM THE COMMISSION On the protection of the financial interests of the European Uniton by criminal law and by administrative investigations: An integrated policy to safeguard taxpayers' money
Date: 2011-05-26
Institutions: European Commission
Subjects: Eurojust, European Anti-fraud Office, administrative cooperation, corruption, criminal liability, financial market, fraud, judicial cooperation, taxpayer

EUROPEAN COMMISSION 

Brussels, 26.5.2011 
SEC(2011) 621 final 

COMMISSION STAFF WORKING PAPER 

to the European Parliament, the Council, the European Economic and Social Committee 
and the Committee of the Regions  

Accompanying the document 

COMMUNICATION FROM THE COMMISSION 

On the protection of the financial interests of the European Uniton by criminal law and 
by administrative investigations: 

An integrated policy to safeguard taxpayers' money 

{COM(2011) 293 final} 

 
 
 
 
  
 
 
 
 
1. 

CHALLENGES FOR THE PROTECTION OF EU FINANCIAL INTERESTS 

The protection of the EU's financial interests has been a long-standing concern of the Commission. The 
negotiation  by  Member  States,  upon  Commission  proposal,  of  a  Convention  on  the  protection  of  the 
(then)  Communities'  financial  interests  in  1995  (hereinafter  the  "Protection  of  Financial  Interests 
Convention"), as well as the setting up of OLAF and EUROJUST, bear witness of these policies.  

As compared to the time when these policies were designed, however, the scene has changed. Not only 
has the level of integration increased, with new policy fields and types of expenditure having developed, 
but  also  the  geographic  scope  of  the  EU,  and  the  variety  of  nationally  legal  systems  it  features,  have 
evolved since.  

The present Staff Working Document accompanies the communication on the protection of the financial 
interests  of  the  European  Union.  Illustrating  the  shortcomings  and  the  need  to  act  identified  in  the 
communication by concrete facts and examples is necessary to take the real dimension of the problem.  

The  relevant  fraud  indicators  may  be  further  underpinned  by  published  figures  on  reported  fraud  and 
irregularities (Annexes I and II). 

The  statistical  and  analytical  record  seems  to  indicate  that  criminal  policy  challenges  stem  from  an 
insufficient deterrence preventing criminal misuse of the EU budget (2.1.). This is further illustrated by 
some concrete cases based on the experience both of OLAF (2.1.1.) and EUROJUST (2.1.2.). 
The  insufficiencies  in  the  national  legal  actions  are  further  confirmed  by  some  figures  and  statistics, 
extracted from the OLAF operational case record, on national judicial authorities' action in Protection of 
Financial Interests cases forwarded by OLAF (2.2.).  

The  reasons  for  the  shortcomings  in  the  area  of  the  Protection  of  Financial  Interests  are  further 
explained.  The  difficulties  in  fighting  offences  against  the  EU  financial  interests  experienced  by  the 
practitioners and illustrated by concrete cases, often result from the insufficient legal framework in this 
field and the lack of a common level playing field in criminal law (3.1.).  

The national legal framework  has been harmonised to a rather limited extent with the entry into force 
and  transposition  of  the  Protection  of  Financial  Interests  Convention,  which  however  has  certain 
deficiencies.  
In order to better perceive the insufficiencies in the Member States legal orders, it is helpful to present a 
synoptical  comparison,  on  the  basis  of  the  example  of  several  national  legal  systems,  (i)  of  the  main 
criminal law concepts in the Protection of Financial Interests area which have been harmonised (3.1.1.) 
and  (ii)  of  certain  criminal  law  concepts  which  lack  currently  approximation  on  EU  level  but  are  of 
utmost relevance for the protection of the EU financial interests (3.1.2.). 
The insufficient cooperation between authorities, the shortcomings and the need to act are reflected by 
answers  collected  from  the  practitioners  in  the  field  of  the  Protection  of  Financial  Interests  both  on 
national and EU level (3.2.). 

The  reflections  by  practitioners  shed  some  light  on  the  limits  to  mutual  legal  assistance  (3.2.1.),  the 
problem  of  the  unused  evidence  (3.2.2.)  and  a  tendency  to  restrict  the  prosecution  to  domestic  cases 
(3.2.3.) 

1

 
 
 
 
 
 
 
 
 
 
The  possibilities  to  strengthen  the  tools  to  address  the  various  aspects  of  the  problem  have  been  the 
subject  for  some  EU  Commission  reports  and  studies  by  legal  experts.  An  overview  on  some  of  the 
studies conducted so far on the issue is included (4.). 

The figures for irregularities and suspected fraud at the expense of the EU public funds have remained 
substantial over the last 5 years, notwithstanding all efforts to curb the phenomenon, even though they 
are given financial follow-up and Member States are obliged to return the reported irregular amounts to 
the EU budget. 

Suspected  fraud  in  the  sector  of  the  common  agricultural  policy,  as  reported  by  Member  States,  has 
gradually diminished over the last 4 to 5 years.  But the figures in relation to suspected fraud cases in the 
area of the cohesion policy related to notified irregularities by Member Statesshow, irrespective of some 
fluctuations over the recent years, an average potential  financial impact at a level of about 100 million € 
per  year.  At  the  latest  at  closure  of  programmes,  if  not  earlier  in  the  programming  period,  confirmed 
irregular amounts are deducted from payment claims made to the EU budget. 

The  situation  is  different  with  respect  to  pre-accession  funds.  Here,  a  sharp  increase  of  reported  fraud 
and  irregularities  cases  may  be  noted.  Annex  I  and  Annex  II  provide  figures  hereafter.  They  are  used 
here as the concrete indicators for the numbers and amounts of fraud and irregularities at the disposal of 
the Commission. These objective indicators need, however, to be used carefully.  
First, it needs to be considered that these figures reflect a reporting practice by administrative authorities 
in the Member States towards the EU Commission based on sectoral regulatory provisions which foresee 
periodic  reporting.  Cases  which  are  not  reported  do  not  appear.  There  is  also  no  general  reporting  by 
judicial authorities. Fraud cases which have not been detected will anyway not enter into the statistics. 
Any  fraud  cases  as  are  reported  in  the  statistics  reflect  also  the  efficiency  of  the  competent  national 
authorities in detecting fraud. 
Second, a distinction between reported irregularities and fraud cases needs to be drawn. Irregularities do 
not  systematically  amount  to  criminal  conduct.  They  reflect  however  a  suspected  violation  of  EU  law 
which may be harmful to the taxpayer. Concerning the reported fraud cases it may equally be useful to 
underline that these refer to a first suspicion. The reporting duty applies at the beginning of a detected 
case.  The  facts  established  may  develop  during  the  investigation  by  the  competent  Member  States 
authorities and the reported cases may not be considered cases of convicted fraud. 

2

 
 
 
 
 
 
2. CRIMINAL POLICY CHALLENGES   

2.1. Insufficient deterrence preventing criminal misuse of the EU budget - Case examples and case 
studies in the field of Protection of Financial Interests 

Concrete examples taken from the operational practice of OLAF and EUROJUST in cooperation with 
the  competent  national  judicial  authorities  may  help  to  better  understand  the  shortcomings  and 
difficulties  generated  by  national  criminal  legislation  and  practice  for  prosecution  and  mutual  legal 
assistance. 

2.1.1. OLAF cases 

•  Fraud: case on jurisdiction 

(cid:190)  The investigation concerned 15 EU projects in which an expert named X from Member State A 
participated for several years. The above projects formed part of 6 different EU Programmes, and 
were  awarded  to  10  different  companies  or  consortia.  These  companies  or  consortia  then 
contracted  with  Mr.  X,  via  a  subcontractor,  or  via  another  member  of the  consortium.  The  EC 
had no direct contractual relationship with Mr. X. 

Evidence suggests that over a number of years, Mr. X systematically claimed payment in respect 
of  work  alleged  to  have  been  carried  out  on  2  or  3  different  EU  projects  on  the  same  dates  as 
indicated in timesheets. This double or triple claiming represents 34% of the 1449 days claimed 
and ticked in the timesheets. The document containing inaccurate information in relation to the 
implementation of the contracts were prepared in the Member State A and sent to the European 
Commission.  Most  of  the  contractors  were  aware  of  the  fact  that  Mr.  X  was  working  on  more 
than one project at the same time. The contractors and the leaders or members of consortia that 
contracted with Mr. X are potentially contractually liable for the irregular claims submitted.  

The projects were under a number of EU programmes – TACIS – CARDS – PHARE and others 
and  the  contractors  were  companies  mainly  based  in  EU  Members  States.  The  contracts  were 
performed in a number of (then) non-EU States. The concerned person moved from state to state 
as  he  performed  his  work  and  it  is  difficult  to  say  where  he  was  living  at  any  given  time. 
However many of his invoices had an address in Member State A and payments had been paid 
into a bank account in Member State B. On the basis of this evidence it was felt that the countries 
with the closes link to the fraud were Members States A and B. As Mr. X was living in Member 
State  A,  Member  State  A  appeared  to  be  the  most  appropriate  jurisdiction  for  prosecution. 
However,  the  prosecutors  in  A  declined  the  case  on  grounds  of  lacking  jurisdiction  –  2  years 
after the papers were sent to them. 

•  Fraud and corruption: cases on time limitation legislation  

(cid:190)  An OLAF investigation case which has led to a criminal trial before the courts of Member State 
A  related  to  several  companies  set  up  for  the  execution  of  EU  projects  in  the  research  area. 
Although EU subsidies were granted to these companies, no real execution of such projects ever 
took place. Criminal law proceedings were declared time-barred on the basis of a new national 
law on time limitation in the Member State concerned. 

3

 
 
 
 
 
 
 
 
 
 
 
 
 
Similar  results  have  appeared  in  another  complex  set  of  cases  investigated  by  OLAF  about  a 
wide network setting up an illicit operation of fraud against the EU, linked also with corruption. 
A large-scale network of private persons and companies in several MS had been set up in order 
to obtain fraudulently EU funds in the areas of research and structural funds. Investigations were 
conducted  in  parallel  in  the  involved  Member  States.  In  Member  State  A  the  defendants  were 
indicted  in  June  2005,  but  in  February  2006  the  Pre  trial  Judge  dismissed  the  criminal  case 
because in the meantime a new law entered into force. Meanwhile, in other Member States the 
suspected persons of this network have been convicted. 

•  Corruption and fraud: cases on length of proceedings 

(cid:190)  OLAF  had  investigated  a  serious  case  of  fraud  and  corruption  where  public  officials  were 

involved.  

The case lasts now  since many  years after  being transmitted by  OLAF  to  the  Member State X 
authorities. It is expected to be brought to  the trial phase only now.  

The  reasons  for  this  long  delay  are  complex,  but  are  only  partly  due  to  procedural  problems 
related  to  the  investigation  of  financial  crimes  in  Member  State  X,  as  well  as  some  specific 
problems on local level.  

More  prominently,  the  traditional  instrument  of  mutual  legal  assistance  in  criminal  matters, 
which was available in these cases in the cooperation between the authorities of Member State X 
and  three  other  States,  has  functioned  rather  slowly.  In  particular,  it  has  not  allowed  for  a 
centralised  management  of  the  judicial  investigations  on  a  cross-border  level.  A  centralised 
approach  between  the  judiciaries  of  several  Member  States  was  very  difficult  to  achieve.  The 
result has been a considerable loss of time, which causes a danger of prescription. 

(cid:190)  The insufficiencies of the traditional mutual legal assistance mechanisms have been faced also in 
a corruption case in the field of the EU-external policy action related to expenditure in favour of 
beneficiary administrations in third countries.  

OLAF  has  invested  considerable  efforts  to  overcome  the  difficulties  related  to  the  use  of  the 
available  mutual  legal  assistance  instrument  between  the  two  Member  States  concerned  by 
recommending  the  creation  of  a  joint  investigation  team  (JIT).  The  authorities  of  one  of  these 
States,  however,  did  refuse  the  involvement  of  OLAF  in  the  JIT  notwithstanding  the  serious 
suspicions that OLAF had raised of systematic money laundering related to corruption, involving 
several other Member States, candidate countries, EFTA countries and third countries. The result 
of the investigations by OLAF and the action of the national judiciary on these serious criminal 
cases would need to have been far better coordinated and even centralised in order to give some 
successful results. However, efficient legal instruments to achieve this have not been available. 

(cid:190)  In another case of corruption in the field of possible fraud, related to infrastructure expenditure, 
dating  from  2004,  the  national  procedure  has  remained  blocked  at  the  investigation  stage  after 
judicial intervention in March 2007. In this case two European arrest warrants are not executed 
by the requested Member States.  

(cid:190)  A set of cases concerning serious fraud in the area of the EU policies on research and technology 
were  investigated  by  OLAF  against  one  person  suspected  of  having  organised  the  different 

4

 
 
 
 
 
 
 
 
 
 
 
frauds.  One  of  the  cases  is  already  time-barred  and  another  one  is  at  risk  of  becoming  time-
barred as well.  

OLAF pursued the coordination between four Member States involved, in particular in order to 
freeze  simultaneously  the  assets  in  several  banks.  Lacking  the  necessary  competences  for  an 
operational  steering  of  criminal  investigative  actions  it  has  not  been  possible  to  reach  the 
objectives  of  a  coordination.  Moreover,  OLAF's  recommendation  to  involve  Eurojust  has  not 
been followed by the judiciary in these cases. 

•  Corruption: case on admissibility of evidence gathered abroad and length of 

proceedings 

(cid:190)  In 2003, OLAF carried out investigations concerning a former staff member  Mr X of a European 
agency located in the accession country A. Among other disciplinary and criminal offences, Mr 
X  was  alleged  of  having  received  bribes  from  a  consortium  based  in  Member  State  B  that 
succeeded in a tender relating to an industry construction in A. The OLAF investigation results 
substantiated the allegations. 

At the end of 2003, the case was referred to the competent judicial authorities in B. The regional 
criminal  investigation  department  in  B  was  responsible  for  conducting  criminal  investigations 
relating  to  that  case.  OLAF  provided  requested  support  and  assistance,  especially  as  regards 
European law related matters. 
In 2009, the Prosecutor's office in B closed the judicial case against all suspects. Among them 
were Mr X but also managers of the consortium based in B. The judicial case was closed without 
any follow-up, the suspects were only charged with a total amount of 100.000 € to be paid partly 
to the public treasury and/or the public benefit. 

When  presenting  the  investigation  results  to  OLAF,  the  regional  criminal  investigation 
department in B described the following problematic matters: 
-  the  investigators  faced  initial  problems  relating  to  EU  law,  in  particular  specific  EU 
international  procurement  procedures  (not  identical  to  national  procedures),  applicability  of 
national  criminal  offences  to  EU  officials  and  immunity  of  the  latter,  provisions  of  the  Staff 
Regulations and different languages; 
-  the  investigation  lasted  6.5  years  from  the  opening  of  the  criminal/  judicial  investigation  in 
January 2004 to its closure in July 2010; 
-  the  legality  of  the  use  of  evidence  collected  during  searches  in  A  was  questioned  before  the 
judicial authorities in B as well as the status of the member of the evaluation committee of the 
tender employed on the basis of a service contract. 

2.1.2. Eurojust cases 

•  Fraud: case on the admissibility of evidence gathered abroad 

(cid:190)  In  2009,  the  authorities  of  a  Member  State  A  started  an  investigation  towards  a  EU  citizen 
suspected of fraud. As intermediary, he had claimed over 35.000 € from the European Education 
Program for workers of that Member State, in order for them to be educated in another Member 
State B in line with the Leonardo da Vinci Program over a 9-week period. 

The suspect presented in his report the copies of the trainee certificates and travel documents of 
20  workers,  containing  stamps  of  departure  from  the  Member  State  A  of  origin  and  returning 

5

 
 
 
 
 
 
 
 
 
 
 
from B, which corresponded with the required more than two months period of the education in 
B. During the investigation, it was found out that the 20 mentioned people did indeed leave the 
country, but only had been in the Member State of destination in limited periods of 1 week each. 
Thus, the project did not meet the criteria agreed in the contract and too much funding had been 
awarded to the intermediary. 

Currently  the  case  is  before  the  court  in  the  requesting  Member  State  at  the  initial  stages.  38 
witnesses and 8 experts from the Member States A and B are to be heard by the judge. Also, the 
prosecution authorities wish to produce the documentary evidence and witness statements from 
the other Member State, which have been obtained following the execution of a letter of request.  

But this revealed to be a complex process: Under the law of the Member State in question, when 
such statements are contested by either one of the parties before the court, the evidence will have 
to be submitted in person or by videoconferencing.  

• 

Intra-community VAT fraud: case on jurisdiction 

(cid:190)  The  authorities  of  a  Member  State  requested  EUROJUST  to  exchange  information  with  other 
Member States in a VAT fraud case. It involved a citizen of Member State A located in Member 
State  B  and  suspected  to  deal  with  import/export  of  cars  whilst  frauding  the  VAT  through  a 
company in Member State C. 

The  case  yielded  no  result,  as  it  was  closed  in  Member  State  C  on  legal  grounds.  This  was 
justified  by  reference  to  VAT  refund  requests  having  been  submitted  only  abroad  from  the 
perspective of Member State C. 

VAT fraud has different variants. One involves traders who simply default on the payment of the 
owed  VAT  and  another  involves  hijacking  the  VAT  registration  numbers  of  legitimate 
companies. There are normally several other companies ('buffer companies') forming a chain of 
sales transactions that give the appearance of legitimate trading. When the goods are repeatedly 
exported  and  re-imported  then  this  criminal  practice  can  be  repeated,  under  the  so-called 
common name of carousel fraud, as in the case at hand.  

Until recently, carousel fraud was mostly committed in intra-community supplies of goods (e.g. 
mobile phones or computer chips). Several Member States have now also been confronted with 
carousel fraud related to greenhouse gas emission allowances, which are considered as supplies 
of services within the EU.  

6

 
 
 
 
 
 
 
 
 
 
2.2. Judicial activity in Protection of Financial Interest cases: a statistical analysis  

The following tables show some statistics on cases investigated by OLAF which have been transmitted 
to  the  criminal  judicial  authorities.  These  statistics  illustrate  the  quantitative  aspects  of  bringing  legal 
action against fraud at the expense of the EU.  

Table 2.2.a: Overview of judicial action by Member State 

The following table shows the activities level of the judicial authorities in the Member States concerning 
cases  forwarded  to  them  by  OLAF.  The  figures  have  been  collected  over  a  period  of  nearly  12  years, 
since OLAF has taken up its activities in the cooperation with the national judicial authorities.  
Overview of progress on judicial actions1  

All actions 

Actions with judicial decisions 

Member 
State 

Actions 
transferred 
to Member 
State 

Actions  
pending 
judicial 
decision 

Actions 
with 
judicial 
decision 

Dismissed 
before trial 

Dismissals 
as % of 
results 

Acquittal 

Acquittals 
as % of 
results 

Convictions 

Convictions 
as % of 
results 

1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
Total 

10 
21 
17 
22 
98 
113 
296 
34 
392 
4 
8 
44 
83 
32 
157 
27 
4 
8 
392 
256 
16 
174 
7 
12 
0 
5 
0 
2232 

8 
1 
3 
1 
27 
40 
125 
6 
37 
2 
6 
16 
25 
11 
54 
13 
0 
4 
185 
107 
1 
75 
4 
3 
0 
5 
0 
759 

2 
20 
14 
21 
71 
73 
171 
28 
355 
2 
2 
28 
58 
21 
103 
14 
4 
4 
207 
149 
15 
99 
3 
9 
0 
0 
0 
1473 

0 
2 
3 
6 
23 
13 
43 
7 
152 
1 
1 
14 
32 
11 
32 
8 
3 
1 
116 
115 
8 
45 
3 
8 
0 
0 
0 
647 

0,0% 
10,0% 
21,4% 
28,6% 
32,4% 
17,8% 
25,1% 
25,0% 
42,8% 
50,0% 
50,0% 
50,0% 
55,2% 
52,4% 
31,1% 
57,1% 
75,0% 
25,0% 
56,0% 
77,2% 
53,3% 
45,5% 
100,0% 
88,9% 

NA 
NA 
NA 

0 
2 
0 
2 
6 
17 
30 
5 
17 
0 
0 
1 
1 
2 
32 
1 
0 
2 
49 
4 
4 
40 
0 
1 
0 
0 
0 
216 

0,0% 
10,0% 
0,0% 
9,5% 
8,5% 
23,3% 
17,5% 
17,9% 
4,8% 
0,0% 
0,0% 
3,6% 
1,7% 
9,5% 
31,1% 
7,1% 
0,0% 
50,0% 
23,7% 
2,7% 
26,7% 
40,4% 
0,0% 
11,1% 
NA 
NA 
NA 
14,7% 

2 
16 
11 
13 
42 
43 
98 
16 
186 
1 
1 
13 
25 
8 
39 
5 
1 
1 
42 
30 
3 
14 
0 
0 
0 
0 
0 
610 

100,0% 
80,0% 
78,6% 
61,9% 
59,2% 
58,9% 
57,3% 
57,1% 
52,4% 
50,0% 
50,0% 
46,4% 
43,1% 
38,1% 
37,9% 
35,7% 
25,0% 
25,0% 
20,3% 
20,1% 
20,0% 
14,1% 
0,0% 
0,0% 

NA 
NA 
NA 

41,4% 
Note:  An  action  represents  a  criminal  action  pursued  against  a  unique  natural  or  legal  person  in  one  country's  jurisdiction;  Each  case  may 
contain  multiple  actions;  Actions  are  included  here  from  follow-up  in  active  investigations,  closed  cases  (in  follow-up  stage)  and  from 
monitoring cases. 

43,9% 

Although  it  may  be  explained  by  the  size  of  Member  States  that  the  absolute  number  of  cases  by 
Member State greatly varies, it should be noted that also percentage figures differ widely. This may be 
due,  partly,  to  the  diverging  national  practices  when  opening  criminal  investigations.  Some  national 
judicial  authorities  may  open  more  extensively  proceedings,  while  others  do  so  more  restrictively. 
However,  there  are  diverging  records  with  respect  to  the  capacity  to  bring  judicial  investigations  and 

1             Date of extraction: 1 February 2011. 

7

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
prosecution  to  a  conviction  within  reasonable  time.  May  be  that  some  results  are  less  representative 
because they are based on a very small number of cases. However, even ignoring the extreme examples 
of  the  Members  States  with  0%,  respectively  100%  closure  rates,  the  percentages  of  actions  that  are 
dismissed before trial vary between 10% and 89%. 

The  general  activities  level  suggests  that  the  number  of  actions  in  which  no  judicial  decision  has  yet 
been  taken  is  relatively  high  and  represents  about  1/3  of  the  actions  transferred  to  the  Member  States 
judicial authorities (759 of 2232). By the average in 2/3 of the actions transmitted a judicial decision has 
been  taken  (1473  out  of  2232).  But  the  percentages  widely  differ  from  one  Member  State  to  another. 
This may be considered an indicator which reflects the speed of the judicial prosecutorial action.  

At the trial phase the activities of the national judicial authorities equally greatly differ. Ranging from 
0% acquittal rate to up to 50%. The average conviction rate is of 41 % for all cases in which concrete 
judicial action (investigative steps, procedural steps other than closing) was taken following an OLAF 
recommendation. But the conviction rate once again greatly varies from one Member State to another 
with differences concerning the more representative activities of in between 80% and 14 %. 

Table 2.2.b: Breakdown of dismissals by Member State and reason  

The table under 2.2.a) above shows that an important percentage of the actions transmitted by OLAF to 
the national judicial authorities are dismissed before trial. The table below further specifies the reasons 
for the cases opened by the national judiciary in the follow up to an OLAF investigation, but which were 
dropped without going to trial. The reasons for dismissal equally differ greatly in the practice of the 
Member State judicial authorities. The lack of evidence (which not only reflects the insufficient level 
of suspicion but also the loopholes of the applicable provisions of substantive and procedural criminal 
law)  and  the  prescription  (which  reflects  the  speed  of  judicial  follow-up  in  as  much  as  the  difficult 
challenges  in  implementation  of  the  rules  on  time  debarment)  appear  as  significant  justifications  for 
dropping cases in certain Member States. Sometimes also the low priority or the lack of public interest 
are presented as reasons by the Member States. 

Overall, it appears from the following figures that: 
(cid:190)  A  total  of  72.5  %  of  dismissed  cases  are  closed  for  mandatory  reasons  (lack  of  evidence, 

prescription, lack of legal basis, procedural errors) 

(cid:190)  A total of 27.5% of dismissed cases are closed for discretionary reasons. 

8

 
 
 
 
 
 
 
 
Breakdown of dismissals by Member State and reason 

Member 
State 

Lack of 
evidence 

Prescription 

No Public 
Interest 

No legal 
basis 

Low 
priority 

Procedural 
errors 

Other 

Unspecified 

Total 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 
22 
23 
24 

25 

26 

0 

1 

3 

0 

8 

9 

22 

6 

85 

1 

0 

12 

16 

8 

11 

4 

2 

1 

36 

29 

5 
34 
3 
2 

0 

0 

27 
Total 

0 
298 

0 

0 

0 

1 

6 

1 

8 

0 

0 

0 

0 

0 

3 

0 

1 

0 

13 

26 

0 

0 

0 

2 

2 

0 

2 

0 

0 

0 

0 

0 

0 

2 

0 

1 

0 

0 

3 

0 

1 

0 

1 

0 

1 

0 

1 

0 

0 

25 

39 

0 
0 
0 
0 

0 

0 

0 
59 

1 
0 
0 
6 

0 

0 

0 
58 

0 

0 

0 

0 

0 

0 

0 

0 

9 

0 

0 

1 

2 

1 

12 

0 

0 

0 

0 

1 

0 
0 
0 
0 

0 

0 

0 
26 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

4 

0 

0 

0 

0 

0 

0 

0 

0 
0 
0 
0 

0 

0 

0 
4 

0 

1 

0 

1 

3 

3 

7 

1 

19 

0 

0 

1 

9 

0 

1 

2 

0 

0 

6 

2 

0 
2 
0 
0 

0 

0 

0 
58 

0 

0 

0 

2 

1 

0 

3 

0 

0 

0 

0 

0 

0 

0 

3 

0 

0 

0 

5 

15 

2 
4 
0 
0 

0 

0 

0 
35 

0 

2 

3 

6 

23 

13 

43 

7 

152 

1 

1 

14 

32 

11 

32 

8 

3 

1 

116 

115 

8 
45 
3 
8 

0 

0 

0 
647 

0 

0 

0 

0 

0 

4 

1 

0 

0 

66 

4 

0 
5 
0 
0 

0 

0 

0 
109 

as 
percentage 

46,1% 

100,0% 
Note: An action represents a criminal action pursued against a unique natural or legal person in a country's jurisdiction; Each OLAF case with 
judicial  follow-up  may  contain  multiple  actions;  Actions  are  included  here  from  follow-up  in  active  investigations,  closed  cases  (in  follow-up 
stage) and from monitoring cases. 

16,8% 

9,0% 

9,1% 

4,0% 

0,6% 

9,0% 

5,4% 

Table 2.2.c: Combined figures on prosecutorial activity - dismissal reasons vs. cases brought to court  

Combining  the  results  of  the  two  foregoing  tables,  the  following  table  puts  into  perspective  the 
prosecutorial activity of national judiciaries in cases relating to the protection of EU financial interests 
by applying the main reasons for case dismissals to the overall number of cases forwarded by OLAF to 
national  authorities.  It  appears  that  more  than  one  in  ten  of  these  cases  are  closed  for  reasons  which 
include,  in  particular  discretionary  reasons,  before  they  ever  reach  court.  The  discretionary  reasons 
referred to by the national reporting authorities are the lack of public interest and the low priority. 

9

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Table 2.2.c: Combined figures on prosecutorial activity - dismissal reasons vs. cases brought to court  

All actions 

Member 
State 

Actions 
transferred 
to Member 
State 

Actions  
pending 
judicial 
decision 

Actions 
with 
judicial 
decision 

Dismissed 
before trial 
(Mandatory) 

Mandatory 
as % of 
results 

Dismissed before 
trial 
(Discretionary) 

Discretionary 
as % of 
results 

Acquittal 

Acquittals 
as % of 
results 

Convictions 

Convictions 
as % of 
results 

Actions with judicial decisions 

1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
Total 

Note: 

10 
21 
17 
22 
98 
113 
296 
34 
392 
4 
8 
44 
83 
32 
157 
27 
4 
8 
392 
256 
16 
174 
7 
12 
0 
5 
0 
2232 

8 
1 
3 
1 
27 
40 
125 
6 
37 
2 
6 
16 
25 
11 
54 
13 
0 
4 
185 
107 
1 
75 
4 
3 
0 
5 
0 
759 

2 
20 
14 
21 
71 
73 
171 
28 
355 
2 
2 
28 
58 
21 
103 
14 
4 
4 
207 
149 
15 
99 
3 
9 
0 
0 
0 
1473 

0 
1 
3 
3 
16 
10 
32 
6 
98 
1 
0 
12 
20 
10 
15 
6 
2 
1 
105 
72 
6 
39 
3 
8 
0 
0 
0 
469 

0.0% 
5.0% 
21.4% 
14.3% 
22.5% 
13.7% 
18.7% 
21.4% 
27.6% 
50.0% 
0.0% 
42.9% 
34.5% 
47.6% 
14.6% 
42.9% 
50.0% 
25.0% 
50.7% 
48.3% 
40.0% 
39.4% 
100.0% 
88.9% 

NA 
NA 
NA 

31.8% 

0 
1 
0 
3 
7 
3 
11 
1 
54 
0 
1 
2 
12 
1 
17 
2 
1 
0 
11 
43 
2 
6 
0 
0 
0 
0 
0 
178 

0.0% 
5.0% 
0.0% 
14.3% 
9.9% 
4.1% 
6.4% 
3.6% 
15.2% 
0.0% 
50.0% 
7.1% 
20.7% 
4.8% 
16.5% 
14.3% 
25.0% 
0.0% 
5.3% 
28.9% 
13.3% 
6.1% 
0.0% 
0.0% 

NA 
NA 
NA 

12.1% 

0 
2 
0 
2 
6 
17 
30 
5 
17 
0 
0 
1 
1 
2 
32 
1 
0 
2 
49 
4 
4 
40 
0 
1 
0 
0 
0 
216 

0.0% 
10.0% 
0.0% 
9.5% 
8.5% 
23.3% 
17.5% 
17.9% 
4.8% 
0.0% 
0.0% 
3.6% 
1.7% 
9.5% 
31.1% 
7.1% 
0.0% 
50.0% 
23.7% 
2.7% 
26.7% 
40.4% 
0.0% 
11.1% 

NA 
NA 
NA 

14.7% 

2 
16 
11 
13 
42 
43 
98 
16 
186 
1 
1 
13 
25 
8 
39 
5 
1 
1 
42 
30 
3 
14 
0 
0 
0 
0 
0 
610 

100.0% 
80.0% 
78.6% 
61.9% 
59.2% 
58.9% 
57.3% 
57.1% 
52.4% 
50.0% 
50.0% 
46.4% 
43.1% 
38.1% 
37.9% 
35.7% 
25.0% 
25.0% 
20.3% 
20.1% 
20.0% 
14.1% 
0.0% 
0.0% 

NA 
NA 
NA 

41.4% 

An action represents a criminal action pursued against a unique natural or legal person in one country's jurisdiction; Each OLAF case with judicial follow-up may contain multiple actions; 
Actions are included here from follow-up in active investigations, closed cases (in follow-up stage) and from monitoring cases.

10

 
 
 
3. NATIONAL CRIMINAL LAW CONCEPTS: SIMILARITIES AND DISCREPANCIES 

The new legal challenges for the protection of financial interests may be perceived both on the levels of 
substantive law and procedure.  
Substantive  criminal  law  in  the  EU  still  suffers  from  a  series  of  shortcomings:  this  concerns  both 
deficiencies  in  implementation  of  existing  instruments  by  Member  States  and  loopholes  in  the 
instruments on approximation of criminal law (3.1.). The tables in this section demonstrate, accordingly, 
persisting  strong  divergences  across  Member  States  in  definitions  and  sanctions  on  the  main 
"harmonised  fraud"  offences  (3.2.),  as  well  as  on  several  criminal  law  offences  that  have  not  been 
harmonised but are of particular relevance for the protection of the EU financial interests (3.3.). 

3.1. Limits of the substantive criminal law framework 

The main substantive criminal law instrument at EU level for the protection of EU financial interests is 
the  Protection  of  Financial  Interests  Convention.2  It  mainly  covers  fraud,  corruption  and  money-
laundering at the expense of the EU and requires Member States to introduce criminal liability in these 
fields,  as  defined  in  the  Convention.  However,  the  Convention  does  not  apply  to  the  entire  field  of 
criminal  activity  relevant  for  the  protection  of  EU  financial  interests.  Its  shortcomings  can  be 
summarised as follows:  

•  No  obligation  on  Member  States  to  establish  competence  for  prosecution  of  crimes 
affecting  EU  financial  interests,  unless  committed  at  least  partly  on  the  territory  of  the 
Member State concerned, or by one of its nationals 

•  No obligation on Member States to provide criminal sanctions for legal persons 
•  No  obligation  on  Member  States  to  provide  certain  minimum  standards  on  general 
provisions, to the extent applicable to the protection of EU financial interests, in order to 
ensure  equivalently  proportionate  punishment  of  perpetrators  and  participants,  attempt 
and commission, instigating, aiding and abetting 

•  No obligation on Member States to provide certain minimum standards on time limitation 

(duration and/or suspension during proceedings) 

•  No obligation on Member States to criminalise corruption of service providers linked to 

public institutions by service contract 

•  No obligation on Member States to enact a certain minimum level of penalties for crimes 
affecting  the  financial  interests  of  the  Union,  besides  the  general  obligation  to  provide 
custodial sentence for serious fraud. 

Moreover,  two  reports  on  the  implementation  of  the  have  identified  certain  deficiencies  in  the 
implementation.3  
Independently  from  the  particular  scope  of  application  of  the  Protection  of  Financial  Interests  
Convention  or  its  concrete  implementation,  the  table  below  shows  that  discrepancies  in  the 
implementation of the basic criminal law concepts relevant for the protection of EU financial interests 
persist.  

2  

3  

Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities' financial  
interests of 26 July 1995, OJ C 316, 27.11.1995, p. 49. 
First report on the implementation of the Protection of Financial Interests instruments (COM(2004)709 final and SEC(2004)1299 final); Second  
Implementation Report on the Protection of Financial Interests instruments (COM(2008)77 final and SEC(2008) 188 final. 

11

 
 
 
 
 
 
 
                                                 
3.1.1. Synopsis of criminal law concepts harmonised on EU level with direct relevance to the protection of public finances interests 

This non-exhaustive table summarises relevant criminal law provisions for protection of EU financial interest cases of a selection of Member States. It 
does not purport to be representative of the legal situation across the EU, but it might help to give an indication of persisting discrepancies across Member 
States in terms of the core criminal offences affecting EU public money, and regarding the penalties they carry. Such discrepancies may have different 
effects  on  crime:  first,  comparatively  weak  penalties  in  some  Member  States  may  reduce  the  effect  against  relevant  crime.  Secondly,  loopholes  in  the 
definitions of criminal offences in some Member States may attract criminals, or legal persons set up by them, in order to escape a more stringent legal 
framework in their Member State of origin.  

EU 
Protection of Financial  
Interests Convention 

BG 
Criminal code 
(last amendment 27.04.2010) 

DE  
Strafgesetzbuch4 
(last amendment 2.10.2009) 

FR 
Code pénal 
(last amendment 7.1.2011) 

UK 
Theft Act 1968 
Criminal Law Act 1977 
Freedom of Information 
Act 2000 
Fraud Act 2006 
Bribery Act 2010 

(1) 
FRAUD 

Article 1 of Convention 

 (a) in respect of expenditure, any 
intentional act or omission relating 
to: 
- the use or presentation of false, 
incorrect or incomplete statements 
or documents, which has as its 
effect the misappropriation or 
wrongful retention of funds from 
the general budget of the European 
Communities or budgets managed 
by, or on behalf of, the European 
Communities, 
- non-disclosure of information in 
violation of a specific obligation, 
with the same effect, 
- the misapplication of such funds 

Deceit  
Article 209  
(1) A person who for the purpose of 
acquiring material benefit for himself 
or for another evokes or maintains in 
somebody a misleading idea, and 
thereby causes material damage to 
that person or to another, shall be 
punished for deceit by deprivation of 
liberty for one to six years.  

Article 223  
(1) A person who gives untrue 
information about the quantity, 
quality or the kind of the produced 
article or about the work done with 
the aim to obtain undue material 
benefit, shall be punished by 
deprivation of liberty for up to three 
years or by probation, if this does not 

Section 263 
Fraud 
(1)  Whosoever  with  the  intent  of 
obtaining  for  himself  or  a  third 
person  an  unlawful  material  benefit 
damages  the  property  of  another  by 
causing  or  maintaining  an  error  by 
pretending 
by 
distorting or suppressing true facts  

facts 

false 

or 

(2) The attempt shall be punishable. 

Section 264 Subsidy fraud 

(1) Whosoever 
1.  makes  incorrect  or  incomplete 
statements  about  facts  relevant  for 
granting  a  subsidy  …  to  a  public 
authority  
3.  withholds,  contrary  to  the  law… 
information  about  facts  relevant  to 

Article 313-1 
Fraudulent  obtaining  is  the  act  of 
deceiving a natural or legal person 
by  the  use  of  a  false  name  or  a 
fictitious capacity, by the abuse of 
a genuine capacity, or by means of 
unlawful  manoeuvres,  thereby  to 
lead such a person, to his prejudice 
or to the prejudice of a third party, 
to transfer funds, valuables or any 
property, to provide a service or to 
consent  to  an  act  incurring  or 
discharging an obligation. 

Article 313-3 
Attempt to commit the offences set 
out  under 
the 
present code is subject to the same 
penalties. 
The  provisions  of  article  311-12 

this  section  of 

4  

Translation of the German Criminal Code by Prof. Dr. Michael Bohlander. 

12

by 

false 

Fraud 
2 
representation 
(1)A person is in breach of 
this section if he— 
(a)dishonestly  makes  a 
false representation, and 
(b)intends,  by  making  the 
representation— 
(i)to  make  a  gain 
himself or another, or 
(ii)to cause loss to another 
or  to  expose  another  to  a 
risk of loss. 
(2) (…) 
(…) 

for 

3  Fraud  by  failing  to 
disclose information 
A  person  is  in  breach  of 
this section if he— 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
for purposes other than those for 
which they were originally granted; 
(b) in respect of revenue, any 
intentional act or omission relating 
to: 
- the use or presentation of false, 
incorrect or incomplete statements 
or documents, which has as its 
effect the illegal diminution of the 
resources of the general budget of 
the European Communities or 
budgets managed by, or on behalf 
of, the European Communities, 
- non-disclosure of information in 
violation of a specific obligation, 
with the same effect, 
- misapplication of a legally 
obtained benefit, with the same 
effect. 

constitute a graver crime.  
(2)  A person  who  receives an  undue 
for  what  he  has 
remuneration 
produced  or  for  the  work  he  has 
done, knowing that it was determined 
on the basis of such untrue data, shall 
be punished by probation or by a fine 
from  BGN  one  hundred  to  three 
hundred, if this does not constitute a 
graver crime.  

Sanctions:  
-  imprisonment  max  6  years,  in 
minor  cases  max  1  year,  in  case  of 
EU  funds  max  10  years,  further 
aggravating  circumstances  up  to  20 
years 
- confiscation 

(2) 
CORRUPTION 

Article of 1st Protocol  
the deliberate action of an official, 
who, directly or through an 
intermediary, requests or receives 
advantages of any kind whatsoever, 
for himself or for a third party, or 
accepts a promise of such an 
advantage, to act or refrain from 
acting in accordance with his duty 
or in the exercise of his functions in 
breach of his official duties in a way 
which damages or is likely to 
damage the European Communities' 
financial interests shall constitute 
passive corruption. 

Article 3 of 1st Protocol  
the deliberate action of whosoever 
promises or gives, directly or 
through an intermediary, an 

Article 225b  
(1) A person who for work done or 
service rendered receives an undue 
material benefit, if the act does not 
constitute a graver crime, shall be 
punished by deprivation of liberty for 
up to two years and by a fine from 
BGN one hundred to three hundred.  
(2) If the act under the preceding 
paragraph is committed for a second 
time or the benefit is of large 
amount, the punishment shall be 
deprivation of liberty for up to three 
years.  
(3) In minor cases under paragraph 
(1) the punishment shall be a fine 
from BGN one hundred to three 
hundred, imposed administratively.  
(4) The object of the crime shall be 
confiscated in favour of the state.  

Article 225c  
(1) The individual performing a job 

the  subsidy  from  the  subsidy  giver; 
or 
4.  uses  a  certificate,  which  was 
acquired 
or 
incomplete statements … 

incorrect 

through 

applicable 

are 
misdemeanour 
obtaining. 

of 

to 
the 
fraudulent 

Sanctions:  
-  imprisonment  max  5  years  or, 
under  aggravating  circumstances 
(such  as  abuse  of  power  of  office) 
max 10 years; or 
- a fine 

Sanctions:  
-  imprisonment  max  5  years  or, 
under  aggravating  circumstances 
(such as abuse of power of office) 
max 7 years; or 
- a fine 

Section 331 
Taking bribes 
(1)  A  public  official  or  a  person 
entrusted with special public service 
functions  who  demands,  allows 
himself  to  be  promised  or  accepts  a 
benefit  for  himself  or  for  a  third 
person  for 
the  discharge  of  an 
official duty shall be liable  

Section 332 
Taking  bribes  meant  as  an 
incentive  to  violating  ones  official 
duties 
(1)  A  public  official  or  person 
entrusted with special public service 
functions  who  demands,  allows 
himself  to  be  promised  or  accepts  a 
benefit  for  himself  or  for  a  third 
person  in  return  for  the  fact  that  he 
performed  or  will  in  the  future 
perform  an  official  act  and  thereby 
violated  or  will  violate  his  official 
13

Article 435-1 

For  the  implementation  of  the 
Convention  on  the  Fight  against 
Corruption  involving  Officials  of 
the  European  Communities  or 
Officials  of  Member  States  of  the 
European Union signed at Brussels 
the 
the  26th  May  1997, 
on 
unjustified request or acceptance at 
any time, directly or indirectly, by 
a  community  civil  servant  or 
national  civil  servant  of  another 
member  State  of  the  European 
Union  or  by  a  member  of  the 
the  European 
Commission  of 
Community, 
European 
Parliament, the Court of Justice or 
the  Court  of  Auditors  of 
the 
European Community of any offer, 
promise,  donation,  gift  or  reward 
of any kind, to carry out or abstain 
from  carrying  out  an  act  of  his 

the 

fails 

legal  duty 

(a)dishonestly 
to 
disclose  to  another  person 
information  which  he  is 
under  a 
to 
disclose, and 
(b)intends,  by  failing  to 
disclose the information— 
for 
(i)to  make  a  gain 
himself or another, or 
(ii)to cause loss to another 
or  to  expose  another  to  a 
risk of loss. 

Sanctions:  
-  imprisonment  max  10 
years; or 
- a fine 

to 

improperly 
function 

1  Offences  of  bribing 
another person 
(a)  offer,  promise  or 
giving of financial or other 
advantage 
another 
person 
(i)to  induce  a  person  to 
a 
perform 
or 
relevant 
activity, or 
(ii)to  reward  a  person  for 
the  improper  performance 
of  such  a  function  or 
activity. 
OR 
(a)  offer,  promise  or 
giving  of  a  financial  or 
other advantage to another 
knowing 
or 
person, 
the 
that 
believing 
the 
acceptance 
of 
advantage  would 
itself 
improper 
constitute 

the 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
advantage of any kind whatsoever 
to an official for himself or for a 
third party for him to act or refrain 
from acting in accordance with his 
duty or in the exercise of his 
functions in breach of his official 
duties in a way which damages or is 
likely to damage the European 
Communities' financial interests 
shall constitute active corruption. 

for a legal entity or a sole trader 
under the Commercial Act, who 
requests or accepts a gift or any 
benefit, that appears undue, or 
accepts an offer or a promise for a 
gift or benefit in order to perform an 
act, or fail so to do, in breach of 
his/her obligations with regard to 
commercial activities, shall be 
punished  
(2) The individual performing 
commercial activities, who offers, 
promises or provides a gift or any 
benefit to a person performing a job 
with a legal entity or a sole trader, in 
order to perform an act, or fail so to 
do, in breach of his/her obligations, 
shall be punished  

(4) The individual who acts as 
intermediary with regard to some 
acts under the preceding paragraphs, 
where his conduct does not qualify 
under more serious crimes, shall be 
punished   

corruption 

Sanctions:  
-  imprisonment  max  5  years  for 
of 
passive 
employees/staff/civil servants, max 3 
years for active corruption, or max 1 
year for intermediaries 
- a fine 
-  expropriation  of  the  object  of  the 
crime 

duties shall be liable  

Section 333 
Giving bribes 
(1)  Whosoever  offers,  promises  or 
grants a benefit to a public official, a 
person  entrusted  with  special  public 
service  functions  or  a  soldier  in  the 
Armed  Forces  for  that  person  or  a 
third  person  for  the  discharge  of  a 
duty shall be liable  

Section 334 
Giving  bribes  as  an  incentive  to 
the  recipients  violating  his  official 
duties 
(1)  Whosoever  offers,  promises  or 
grants a benefit to a public official, a 
person  entrusted  with  special  public 
service  functions  or  a  soldier  of  the 
Armed  Forces  for  that  person  or  a 
third person in return for the fact that 
he  performed  or  will  in  the  future 
perform  an  official  act  and  thereby 
violated  or  will  violate  his  official 
duties shall be liable. 

Section 108e 
Bribing delegates 
(1) Whosoever  undertakes  to  buy  or 
sell a vote for an election or ballot in 
the  European  Parliament  or  in  a 
parliament  of  the  Federation,  the 
member  states,  municipalities  or 
municipal  associations,  shall  be 
liable. 

[The definition of public official was 
extended  to  judges  or  officials  of 
other  Member  States  or 
the 
European 
Communities, 
Commissioners  and  Members  of 
European  Court  of  Auditors,  to  the 
14

office,  mission  or  mandate,  or 
facilitated  by  his  office,  duty  or 
mandate, is punished 

performance  of  a  relevant 
function or activity. 

Article 435-2 
For  the  implementation  of  the 
Convention  on  the  Fight  against 
Corruption  involving  Officials  of 
the  European  Communities  or 
Officials  of  Member  States  of  the 
European Union signed at Brussels 
the 
the  26th  May  1997, 
on 
unlawful  proffering,  at  any  time, 
directly or indirectly, of any offer, 
promise, gift, present or advantage 
of  any  kind  to  a  community  civil 
servant or national civil servant of 
another  Member  State  of 
the 
European Union or to a member of 
the  Commission  of  the  European 
European 
Community, 
Parliament, the Court of Justice or 
the  Court  of  Auditors  of 
the 
European Community to carry out 
or abstain from carrying out an act 
of  his  office,  mission  or  mandate, 
or facilitated by his office, duty or 
mandate, is punished…  
The  same  penalties  apply 
to 
yielding to any person specified in 
the  previous  paragraph  who 
unlawfully  solicits,  at  any  time, 
directly  or  indirectly,  any  offer, 
promise, gift, present or advantage 
of any kind to carry out or abstain 
from  carrying  out  an  act  specified 
in the previous paragraph. 

the 

Sanctions:  
- imprisonment max 10 years or 
- fine 

2  Offences  relating  to 
being bribed 
(1)A person (“R”) is guilty 
of an offence if any of the 
following cases applies. 
(2)Case  3 
is  where  R 
requests,  agrees  to  receive 
or  accepts  a  financial  or 
other  advantage  intending 
in  consequence,  a 
that, 
or 
function 
relevant 
activity 
be 
should 
improperly 
performed 
(whether  by  R  or  another 
person). 
(3)Case 4 is where— 
(a)R  requests,  agrees  to 
a 
receive 
financial 
other 
advantage, and 
(b)the  request,  agreement 
itself 
or 
constitutes 
improper 
the 
performance  by  R  of  a 
relevant 
or 
activity. 
is  where  R 
(4)Case  5 
requests,  agrees  to  receive 
or  accepts  a  financial  or 
other 
a 
advantage 
reward  for  the  improper 
performance  (whether  by 
R  or  another  person)  of  a 
relevant 
or 
activity. 

accepts 
or 

acceptance 

function 

function 

as 

or 

3  Function  or  activity  to 
which bribe relates 
(2)The following functions 
and  activities  fall  within 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
extent  relevant  for  the  purposes  of 
the  Protocol  to  the  Protection  of 
Financial  Interests  Convention  of 
27.9.1996 on corruption, by the "EU 
corruption  statute"  of  10.9.1998,  as 
last amended on 21.7.2004] 

Sanctions:  
-passive  corruption: 
imprisonment 
max  3  years  for  taking  bribes,  if  in 
exchange  for  specific  act  max  5 
years  
-active  corruption:  max  2  years  for 
giving bribes, if for specific act max 
5 years 
-in all cases: or fine 

this subsection— 
(a)any function of a public 
nature, 
(b)any  activity  connected 
with a business, 
(c)any  activity  performed 
in  the  course  of  a person's 
employment, 
(d)any  activity  performed 
by  or  on  behalf  of  a  body 
(whether 
of 
or 
corporate 
unincorporate). 

persons 

Sanctions: 
-  imprisonment  max  10 
years 
- fine 

15

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.1.2. Synopsis of criminal law concepts with relevance to the protection of the EU financial interests defined only on a national level  

BG 
Criminal code 
(last amendment 27.04.2010) 

DE  
Strafgesetzbuch 
(last amendment 2.10.2009) 

FR 
Code pénal 
(last amendment 7.1.2011) 

(1) 
ABUSE OF POWER 

Embezzlements  
Article 201  
An official who appropriates from another 
sums of money, objects or other valuables, 
deposited with him in his capacity or 
entrusted to him for safekeeping and 
management, and disposes with them to his 
own interest or to the personal interest of 
another, shall be punished for 
embezzlement by official  

Sanctions: 
-imprisonment up to 8 years, in case the EU 
is  a  victim  up  to  15  years,  in  further 
aggravating circumstances up to 20 years 
-confiscation 

Section 266 
Embezzlement and abuse of 
trust 

(1) Whosoever  
-  abuses  the  power  accorded  to 
him … or 
-  violates  his  duty  to  safeguard 
the property interests …  
and thereby causes damage 
 Sanctions: 
- imprisonment max 5 years or a 
fine 

serious 

Section 264 Subsidy fraud 
especially 

(2) 
In 
cases…: 
2.  abuses  his  powers  or  his 
position as a public official; or 
3. uses the assistance of a public 
official  who  abuses  his  powers 
or his position. 
Sanctions: 
(2) 
imprisonment 
months to ten years 

from 

six 

Article 432-12 
The taking, receiving or keeping of any interest 
in  a  business  or  business  operation,  either 
directly or indirectly, by a person holding public 
authority  or  discharging  a  public  service 
mission,  or  by  a  person  holding  a  public 
electoral  mandate  who  at  the  time  in  question 
has the duty of ensuring, in whole or in part, its 
supervision,  management, 
or 
payment 
Sanctions: 
- 
- a fine. 

imprisonment  max 

liquidation 

years 

or 

5 

UK 
Theft Act 1968 
Criminal Law Act 1977 
Freedom of 
Information Act 2000 
Fraud Act 2006 
Bribery Act 2010 

4 Fraud by abuse of 
position 

abuse 

abuses 

(1)A person is in breach 
of this section if he— 
(a)occupies a position in 
which  he  is  expected  to 
safeguard,  or  not  to  act 
financial 
the 
against, 
interests 
another 
of 
person, 
(b)dishonestly 
that position, and 
(c)intends,  by  means  of 
the 
that 
position— 
(i)to  make  a  gain  for 
himself or another, or 
to 
(ii)to 
cause 
another  or 
to  expose 
another to a risk of loss. 
(2)A  person  may  be 
regarded 
having 
as 
abused his position even 
conduct 
his 
though 
consisted of an omission 
rather than an act. 

loss 

of 

16

Sanctions:  
-  imprisonment  max  10 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
years; or 
- a fine 

Common law: 
Misconduct in office 

Theft Act 1968 
1  Basic  definition  of 
theft. 
(1)A 
person  … 
dishonestly  appropriates 
to 
property  belonging 
another 
the 
intention of permanently 
depriving  
Sanctions: 

with 

conviction  on 
-  on 
indictment 
: 
imprisonment for a term 
max 7 years 

Article 314-1 
the  act  whereby  a  person,  to  the  prejudice  of 
other persons, misappropriates funds, valuables 
or  any  property  that  were  handed  over  to  him 
and that he accepted subject to the condition of 
returning,  redelivering  or  using  them  in  a 
specified way 
Sanctions: 
- 
- a fine 

imprisonment  max 

years 

or

3 

papers, 

Article 432-15 
The destruction, misappropriation or purloining 
of  a  document  or  security,  of  private  or  public 
funds, 
securities 
documents 
representing  such  funds,  or  of  any  other  object 
entrusted  to  him,  committed  by  person  holding 
public authority or discharging a public service 
mission,  a  public  accountant,  a  public 
depositary or any of his subordinates 

or 

Sanctions: 
-  imprisonment  max  10  years  (max  1  year  in 
case of negligence of an office holder) or 
- a fine 

(2) 

Article 206  

Section 246 
Unlawful appropriation 

EMBEZZLEMENT 
(MALVERSATION) 

(1) A person who unlawfully appropriates a 
movable  object  of  another,  which  is  in  his 
possession or which has been left with him 
for  safekeeping,  shall  be  punished  for 
embezzlement.  

(1)  Whosoever 
unlawfully 
appropriates  chattels  belonging 
to another  
… 

Sanctions: 
-  imprisonment  max  6  years  or  max  15 
years for "particularly large scale" 
- confiscation 

Article 217 
 (1)  A  person  who  consciously  inflicts 
damage  to  the  property  of  another,  which 
has  been  entrusted  to  him  for  management 
or 
punished  
(2) The same punishment shall be imposed 
on  a  representative  or  a  proxy  who  has 
acted  consciously  against 
lawful 
the 
interests of the represented person.   

safekeeping, 

shall 

be 

Sanctions: 
- imprisonment max 3 years, in case of 
considerable or irrevocable damages max 5 
years or 
- a fine 

Article 220  
(1) An official who consciously concludes 
a disadvantageous transaction and 
therefrom considerable damages ensue for 
the economy or for the institution, 
enterprise or organisation which he 
represents, shall be punished by deprivation 

Sanctions: 
- imprisonment max 3 years or  
- a fine  
-  unless  more  severe  penalty 
under other provisions. 
-  if  property  was  entrusted  to 
the offender: 
 imprisonment max 5 years or a 
fine. 

Section 266 
Embezzlement and abuse of 
trust 

Cf. above 

17

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  
(3) 

BREACH OF 
PROFESSIONAL 
SECRECY 

of liberty from one to six years, and the 
court may rule deprivation of the right 
under Article 37 (1), sub-paragraph 6.  

Sanctions: 
- imprisonment max 8 years, or in case of 
"particular large size, representing a 
particularly grave case" max 10 years, or 
- a fine 

Article 284  
(1) An official who, to the detriment of the 
state, of an enterprise, an organisation or 
private person, informs another or 
publishes information which has been 
entrusted or accessible to him officially and 
of which he knows it constitutes an official 
secret, shall be punished  
(2) The punishment for an act under 
paragraph 1 shall be also imposed on a 
person who is not an official, who works in 
a state institution, enterprise or public 
organisation 

Sanctions: 

-imprisonment max 2 years 

Article 226-13 
The disclosure of secret information by a person 
entrusted  with  such  a  secret,  either  because  of 
his  position  or  profession,  or  because  of  a 
temporary function or mission  

Sanctions: 

imprisonment  max 

 - 
- a fine 

1 

year 

or

Official Secrets Act 
1989  

Common law: 
Bribery/ Misconduct in 
office 
-  special  offences  for 
in 
certain 
not 
certain 
EU 
applicable 
officials 

officials 
fields, 
to 

(Freedom of 
Information Act 2000 
S. 30 Investigations 
and proceedings 
conducted by public 
authorities: 
Categories of 
information exempted 
from divulgation 
No criminal sanctions) 

Section 353b 
Breach of official secrets and 
special duties of 
confidentiality 

the 

laws  on 

(1)  Whosoever 
unlawfully 
discloses  a  secret  which  has 
been 
confided  or  become 
known to him in his capacity as 
1. a public official; 
2.  a  person  entrusted  with 
special public service functions; 
or 
3.  exercises  duties  or  powers 
under 
staff 
representation   
-  and  thereby  causes  [including 
by  negligence]  a  danger 
to 
important public interests 
(2)  Whosoever  makes 
publicly known 
1.  which  he  is  obliged  to  keep 
secret  on 
the  basis  of  a 
resolution  of  a  legislative  body 
or 
2.  which  he  has  been  formally 
put  under  an  obligation  to  keep 
secret 
official 
agency…  
- and thereby causes a danger to 
important public interests  
 (4)  The  offence  may  only  be 
prosecuted upon authorisation.  

another 

by 

it 

18

 
 
 
 
 
 
 
 
 
 
 
 
(4) 
FRAUD IN PUBLIC 
PROCUREMENT 

No specific provision 

  year 

Sanctions: 
-para  (1):  imprisonment  max  5 
if 
years/  max  1 
negligence, or fine 
-para  (2):  imprisonment  max  3 
years, or fine 
-  in  case  of  violation  of  tax 
355), 
(Section 
secret 
imprisonment max 2 years  

Section 298 
Restricting competition 
through agreements in the 
context of public bids 

-  to  make  an  offer  based  on  an 
agreement  whose 
unlawful 
purpose 
the 
cause 
to 
organiser  to  accept  a  particular 
offer 

is 

-  to  voluntarily  prevents  the 
organiser  from  accepting  the 
offer  or  from  providing  his 
service  

Sanctions:  
- imprisonment max 5 years or 
- a fine 

19

Article 313-6 

No specific provision 

In  a  public  sale  or  tendering  process,  the 
rejection of a bid or tender, or the restriction of 
bids 
promises, 
understandings or any other fraudulent means  

tenders, 

gifts, 

by 

or 

Sanctions: 
- imprisonment max 6 months or 
- a fine 

Article 432-14 

any person holding public authority or 
discharging a public service mission or holding 
a public electoral mandate (…) who obtains or 
attempts to obtain for others an unjustified 
advantage by an act breaching the statutory or 
regulatory provisions designed to ensure 
freedom of access and equality  

Sanctions: 
- imprisonment max 2 years or 
- a fine 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.2. Insufficient cooperation between the authorities – working together faces problems 

The  Commission,  in  2009,  has  mandated  an  expert  study5.  Its  aim  has  been  to  take  stock  of  the 
experience  of  interviewed  prosecutors  of  the  Member  States6  dealing  with  offences  against  the  EU 
financial  interests  and  with  transnational  crimes,  defence  lawyers,  as  well  as  practitioners  of  the 
competent European bodies (EUROJUST, OLAF, EUROPOL). 

In parallel to the developments concerning facts and figures, it may be noted that the practitioners who 
have  been  interviewed  in  this  study  share  some  concerns  with  regard  to  practice  in  investigating  and 
prosecuting fraud and transnational crimes7.  

3.2.1. Limits to mutual legal assistance - Obstacles when requiring and providing assistance 

The transnational collection and transmission of evidence is seen in a moderately positive light both in 
asking  for  and  in  providing  assistance.  There  is  a  general  wish  of  being  able  to  participate  in  the 
collection of evidence in another Member State.  

(cid:190)  83  Percent  stated  to  have  standard  mechanisms  for  asking  for  assistance.  However,  only  46 
percent reported to always use these mechanisms. This may indicate deficiencies, but it may also 
mean  that  they  are  not  considered  appropriate  in  all  cases.  Additionally,  the  success  of  these 
mechanisms  was  mainly  (49  percent)  seen  as  depending  on  the  effort  made  by  the  individual 
prosecutor; only 23 percent held these mechanisms to be generally successful. 

(cid:190)  In providing legal assistance, 54 percent encountered no problems in obtaining and transferring 
the  evidence  but  14  percent  answered  that  they  had  in  fact  difficulties.  While  74  percent8  had 
never refused a request for legal assistance, 20 percent had done so at least once. The reasons for 
this were mainly of a legal nature (including practical  legal differences), though in some cases 
the request was considered too general or the offence - petty.  

These numbers correspond with the experiences of the experts in seeking legal assistance.  

(cid:190)  66 percent had never encountered a refusal of their requests, while 31 percent had encountered 
such a refusal. Just as in providing legal assistance, the reasons were mainly of a legal nature, but 
the  lack  of  resources  or  time  was  also  invoked.  Some  added  that  their  requests,  though  not 
refused, had not been executed or had been handled very slowly.  

(cid:190)  The feed-back on cases was seen as deficient. When asked if the cases they provided assistance 
for had been brought to a successful conclusion, over 77 percent gave no answer or said they did 
not know. Only 17 percent9 answered in the affirmative, while 6 percent knew their case had not 
been concluded successfully. 

5  

EURONEEDS study: "Evaluating the need for and the needs of a European Criminal Justice system", Max-Planck Institut für ausländisches und 
internationals Strafrecht (Marianne Wade), expected to be published in the course of 2011. 

6              17 Member States and Croatia are covered by the study. 
7              The results in percentage presented in this section refer to the answers of the national prosecutors  

dealing with offences against the EU financial interests. 

8              This percentage is higher in comparison with the national prosecutors dealing with transnational crimes,  

from whom only 53% have never refused a request. 

9              This is even lower compared to the national prosecutors dealing with transnational crimes, from  

whom 25% have answered in the affirmative. 

20

 
 
 
 
 
 
 
 
 
 
 
 
                                                 
(cid:190)  A  very  clear  majority  of  80  percent10  would  prefer  to  become  directly  involved  in  collecting 
evidence  abroad  when  they  request  legal  assistance.  Some  interviewees  stated  clearly  that  this 
was not because other member states made any difficulties in executing these requests. Rather, 
the main reason given is that this would enable the prosecutor to decide quickly which measures 
to take next and how to react. 

3.2.2. Unused evidence - Limited recourse to the EU instruments and bodies for assistance 

European  mechanisms  and  institutions  are  regarded  as  helpful  by  most,  but  there  is  a  great  divide 
between mechanisms and bodies that are used fairly frequently and those that are hardly used at all. 

Of the existing EU mechanisms, the European Arrest Warrant is most often used in investigating crimes 
against the EU budget: 

(cid:190)  40  percent  use  it  frequently,  while  26  percent  use  it  at  least  occasionally.  The  Databases  and 

FinCen are used rarely by the interviewed practitioners. 

Amongst  the  bodies,  OLAF  is  used  frequently  by  20  percent  and  occasionally  by  9  percent  of  the 
prosecutors  interviewed,  the  majority  of  66  percent  however  using  it  rarely  or  never.  Eurojust  is  also 
used frequently by 34 percent and at least occasionally by another 31 percent. Europol and the EJN are 
used rarely or never by the interviewed practitioners. 

This  corresponds  to  the  highest  frequency  of  use  of  the  European  Arrest  Warrant,  as  regards  the  EU 
instruments,  and  of  OLAF  and  Eurojust  as  regards  the  bodies.  As  a  reason  for  their  preference,  49 
percent of the interviewed indicated the nature of the cases, while the efficiency gain was named by 40 
percent (more than one answer was possible). 

The existing mechanisms and bodies prove to be satisfactory on the whole: 

(cid:190)  While  91  percent  hold  that  they  at  least  improve  access  to  evidence  or  suspects  from  other 
member states and 77 percent also believe they work well, however, 37 percent have at least 
once  decided  not  to  contact  an  EU  institution  in  a  relevant  case,  mainly  because  this  was 
found to be too time-consuming, or for other, individual, reasons. 

(cid:190)  An overwhelming majority found indeed that Eurojust, Europol and OLAF assisted them in their 
work,  mainly  because  they  save  time  and  resources.  The  greater  probability  of  obtaining 
admissible evidence was only of secondary importance. 43 percent contacted these institutions in 
all relevant cases, 26 percent did not11. 

There is still a need to further increase the awareness for the observation of procedural standards 
to guarantee that the evidence can be used in court: 

(cid:190)  When requesting legal assistance, 54 percent made sure that procedural safeguards and defence 

rights were attended to abroad concerning coercive measures, while the rest did not.  

10             This willingness is considerably higher than that of the national prosecutors dealing with transnational  

11        

crimes, from whom only 59% prefer to be directly involved. 
41 percent of the national prosecutors dealing with transnational crimes contacted these institutions in  
all relevant cases, while 30 percent did not. 

21

 
 
 
 
 
 
 
 
 
  
 
 
  
 
                                                 
(cid:190)  The percentage is much higher when prosecutors execute another member state's request: there, 
83  percent  paid  attention  to  these  standards  and  71  percent  tried  to  attend  to  the  rules  of  the 
requesting member state. 

3.2.3. Restriction of prosecution to domestic cases - Difficulties when dealing with offences having 
a European dimension - National disincentives 

(cid:190)  A significant  portion of the interviewees (37 percent) perceived a rise in crime  against the EU 
budget  over  the  past  years,  while  the  rest  felt  they  could  not  estimate  this  (34  percent)  or 
perceived no rise at all (29 percent). 

(cid:190)  60  percent  felt  that  cases  were  sometimes  hampered  by  the  European  dimension.  This  ratio  is 

significantly higher than in other areas of crime.  

(cid:190)  Probably as a consequence of this, 54 percent of the interviewees admitted to sometimes limiting 
their  investigation  to  the  national  aspects  of  a  case  even  though  they  recognise  its  European 
dimension. This number could be higher in reality, as prosecutors might be hesitant to answer the 
question in the affirmative.  

There are some structural differences between their organisation's stance to domestic and protection of 
EU financial interest cases perceived among practitioners:  

(cid:190)  40  percent  found  disincentives  within  their  national  systems  for  bringing  such  cases.  The 
resources were generally found to be equal to that given to comparable national cases, though for 
some this means that they are equally restricted.  

(cid:190)   Also, internal performance indicators treated work on European cases not identically to national 

cases for 34 percent of the interviewees.  

As  regards  the  evaluation  of  investigation  and  prosecution  by  practitioners  of  the  European  bodies 
(OLAF,  Europol  and  Eurojust),  there  seems  to  be  a  general  agreement  that  "European"  offences  are 
treated with the same priority  as national ones.  However,  the  majority  of  these  interviewees  who  deal 
with  Protection  of  Financial  Interests  (57%)  consider  that  such  cases  are  not  fully  recognised  by  the 
national authorities and that they are neither investigated nor prosecuted adequately (64%). While there 
may be a series of non-tangible reasons of organizational sociology having this effect, the main tangible 
causes  would  seem  to  be  practical  difficulties  with  the  request  of  judicial  and  administrative  co-
operation  and  inadmissible  evidence  under  the  law  of  the  prosecuting  Member  State.  The  result  of  all 
these aspects taken together is high case closing rates12. 

12  

See also statistics on judicial action under point 2.2. 

22

 
 
 
 
 
 
 
 
 
 
                                                 
4.  HOW  CAN  THE  EU  ACT?  Commission  consultations,  conceptual  documents  and  experts 
studies available 

4.1. Strengthening procedures – Policy action by the Commission 

The  main  policy  actions  achieved  by  the  Commission  in  the  last  years  are  presented  in  the  following 
initiatives: 

• 

• 

• 

the 2002 public consultation based on the Green paper on criminal-law protection of 
the financial interests and the establishment of a European Prosecutor13 

the 2003 follow-up report on the Green paper14 

the two reports adopted by the Commission in 2004 and 2008 on the implementation 
of the Protection of Financial Interests Convention and its protocols15 

4.2. Relevant publications by judicial authorities in the Member States 

The EU action has been supported more recently by the following Member States' initiatives:  

• 

• 

the  2009  conclusions  of  the  EPPO  Working  Group,  as  follow  up  of  the  conference 
organized by the Spanish Fiscalía General Del Estado 

the  publication  (August  2010)  of  the  results  of  the  Conference  organised  by  the 
French Cour de cassation (Quelles perspectives pour un ministère public européen?) 

4.3. Experts studies mandated by the Commission  

• 

the Corpus Juris16 (1997) 

This  study  (1997)  had  elaborated  a  set  of  thirty-five  penal  rules  designed  to  ensure  a  fair,  simple  and 
efficient  system  of  protection  of  the  EU  financial  interests,  including  the  setting  up  of  the  European 
Public Prosecutor. These rules follow seven guiding principles as built up in the case law of the ECJ and 
the  ECHR.  The  rules  cover  both  substantive  criminal  law  –  by  defining  specific  offences  relevant  for 
Protection  of  Financial  Interests  and  some  general  criminal  law  rules-,  and  criminal  procedure  –  by 
designing the institutional set-up of the EPPO, enshrining the principle of judicial control and defining 
the basic procedural rights and guarantees. 

•  a further comprehensive law research17 (2000) 

This study is prepared as a follow-up to the Corpus Juris study in order to further reflect on the concrete 
implementation  of  the  original  Corpus  Juris  proposal  into  the  legislation  of  the  Member  States.  It 
contains  syntheses  of  comparative  law  on  the  feasibility  of  Corpus  Juris,  as  well  as  national  reports 
covering the 15 Member States and transversal reports on the main issues on the horizontal and vertical 

13 
14 
15  
16            Corpus Juris introducing penal provisions for the purpose of the financial interests of the European Union, under the responsibility of M. Delmas-         

COM(2001)715. 
COM(2003)128. 
COM(2004)709 final, SEC(2004)1299 and COM(2008)77final, SEC(2008)188. 

Marty, Economica, Paris, 1997 

17             The Implementation of the Corpus Juris in the Member States, M. Delmas-Marty / J.A.E. Vervaele, Intersentia, Utrecht, 2000 (4 volumes). 

Translated versions are available at http://ec.europa.eu/anti_fraud/green_paper/links.html  

23

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
cooperation among the Member States and the EU. The study was conducted by independent researchers 
in 1998-1999 upon the request of the European Parliament and of OLAF. 

• 

the  publication  of  the  study  on  structures  and  perspectives  for  European  criminal 
Justice, with detailed Country reports18 

The  study  develops  a  comprehensive  and  coherent  strategy  for  the  organisation  of  effective  criminal 
prosecution  in  the  EU,  especially  regarding  crimes  against  the  EU  financial  interests.  It  analyses  the 
current state of criminal prosecution in Europe as regards substantive and procedural legislation and the 
administration  of  the  criminal  justice  affairs.  It  compares  the  different  national  reports  and  general 
principles for the organisation of criminal prosecution in Europe. 

•  study  on  the  future  institutional  and  legal  framework  of  judicial  cooperation  in 

criminal matters in the EU: final results expected by end 201119  

The Commission commissioned a "Study on the strengthening of Eurojust" in 2010, in order to prepare 
an  impact  assessment.  The  Study  will  address  problem  definitions,  recommendations  for  action  and 
impacts in 5 areas covered by Art.85: (i) Eurojust's internal structure; (ii) involvement of the European 
Parliament  and  national  Parliaments  in  the  evaluation  of  Eurojust's  activities;  (iii)  providing  Eurojust 
with  powers  to  initiate  criminal  investigations/propose  the  initiation  of  prosecutions;  (iv)  providing 
Eurojust with powers to coordinate investigations and  prosecutions; (v) providing Eurojust with powers 
to resolve conflicts of jurisdiction. The results of the study are expected by the end of this year and on 
that basis the Commission will consider presenting relevant proposals during 2012. 

•  study on Criminal Investigation and Prosecution of Crimes  Affecting the  Financial 

Interests of the EU –  the Member States` dimension (2011)  

This comparative law study is conducted by the University of Luxembourg and shall be published in the 
course  of  2011.  The  aim  of  the  study  is  to  provide  European  decision  makers,  practitioners  and  the 
academic  community  with  detailed  and  comprehensive  knowledge  on  the  common  features  and 
differences  between  the  legal  systems  and  cultures  within  the  EU  in  tackling  crimes  affecting  the 
financial interests of the European Union. It contains comprehensive national reports on the EU Member 
States20  covering  besides  general  aspects  of  criminal  procedural  law,  the  details  of  investigation 
measures,  prosecutorial  measures,  the  use  of  evidence,  procedural  safeguards  as  well  as  information 
sharing between administrative and judicial authorities, which are of relevance for the offences affecting 
the  EU  financial  interests.  The  analysis  is  completed  by  several  transversal  and  special  reports  on 
selected problems in this field21. 

• 

the “Euroneeds study” on evaluating the need for and the needs of a European 
Criminal Justice System (2011) 

The main aspects of this study are summarized under section 3.2 above.  

18            Study conducted by Freiburg Max Planck Institute expected to be published in the course of 2011. 
19            Study conducted by the University of Ghent. 
20            All Member States except Cyprus are covered by the study. 
21            For instance, report on judicial review, report on vertical cooperation in administrative investigations. 

24

 
 
 
 
 
 
 
 
 
                                                 
ANNEX I: Figures on fraud and irregularities from the Commission 

Number of irregularities and amounts — 200922 

Area 

Number of irregularities 
reported 

Total estimated financial impact of irregularities, 
including suspected fraud (€ million) 

Estimated financial impact of suspected fraud only (€ million)  

2006 

2007 

2008 

2009 

2006 

2007 

2008 

2009 

2006 

2007 

2008 

2009 

Agriculture 

3 249 

1 548 

1 133 

1 621 

87 

155 

102.3 (~0.24 % 
of allocations) 

125 (~0.24 % of 
allocations) 

29.8 (~0.06% 
of allocations) 

44.8   (~0.1% 
of allocations) 

4     (~0.01 % of 
allocations) 

13.3 (~0.03% 
of allocations 

Cohesion 
Policy 

Pre-
accession 
funds 

Direct 
expenditure 

Total 
expenditure 

3 216 

3 832 

4 007 

4 931 

703 

828 

585.2 
(~0.11 % of 
allocations) 

1 223 (~2.53% 
of allocations) 

157.56 
(~0.41% of 
allocations) 

141  (~0.31% 
of allocations) 

57   (~0.11 % of 
allocations) 

109 (~0.23 % 
of allocations) 

39 

332 

523 

706  

14 

32 

61 (~0.9 % of 
allocations) 

117 (~ 0.78% of 
allocations 

1.57 (~0.03% 
of allocations) 

5      (~0.38% 
of allocations) 

13  (~0.9 ~% of 
allocations) 

57 (~0.38% of 
allocations) 

- 

411 

932 

705 

- 

33 

34.7 (~0.17 % 
of allocations)  

27.5 (~0.17 % of 
allocations) 

- 

18.1 (~0.17% 
of allocations) 

3.2  (~0.02 % of  
allocations) 

1.5  (~ 0.01 % 
of allocations) 

6 860 

6 123 

6 595 

7 963 

804 

1 048 

783.2(~ 
0.07 % of the 
expenditure in 
the four areas) 

1.492.5 (~1.13% 
of the total 
expenditure in 
the four areas) 

188.93  
(~0.2% of  the 
expenditure in 
the four areas) 

208.9  
(~0.22% of the 
expenditure in 
the four areas) 

77.2             

180.8         

(~ 0.07 % of the 
expenditure in 
the four areas) 

(~0.13 % of 
the 
expenditure in 
the four areas) 

Own 
resources23 

5 705 

5 321   6 075 

4 648 

353 

377 

375 (~0.46 % 
of the total 
amount of own 

343 (~0. 23 % of 
the total amount 
of own 

134.3 (~0.94% 
of the total 
amount of own 

106.57 
(~0.62% of the 
total amount of 

75 (~0.46 % of 
the total amount 
of own 

99 (~0.68% of 
the total 
amount of own 

22  

Comparison of Article 325 report 2009,  p.6, Table 1 and Article 280 report 2007, p. 7, Table 1. 

25

 
 
 
 
 
                                                 
resources)24 

resources) 

resources) 

own resources) 

resources) 

resources) 

23 
24 

Customs duties and agricultural levies. 
This percentage is based on an estimate of traditional own resources in the 2009 general budget, and not on accounts. 

26

 
 
                                                                                                                                                                                                                                           
MEMBER STATE 

AT 

BE 

DE 

DK 

ES 

FI 

FR 

GR 

IE 

IT 

LU 

NL 

PT 

SE 

UK 

EUR-15 TOTAL 

BG 

CY 

CZ 

EE 

HU 

LT 

LV 

MT 

PL 

RO 

SI 

SK 

CASES 

94 

462 

1°614 

54 

464 

34 

327 

57 

34 

288 

0 

1°145 

23 

44 

1°161 

5°801 

15 

11 

50 

12 

69 

41 

41 

10 

159 

37 

27 

21 

ANNEX II: AMOUNTS INVOLVED IN FRAUD25 

AMOUNTS INVOLVED IN FRAUD PER MEMBER STATE PERIOD 2007-2009 

2007 

FRAUD 
CASES 

FRAUD IN € 

CASES 

2008 

FRAUD 
CASES 

FRAUD IN € 

CASES 

2

FRAU
CASE

31 

56 

222 

2 

196 

21 

153 

57 

4 

101 

0 

341 

2 

3 

34°103°931 

2°193°816 

15°081°027 

213°813 

10°482°321 

1°207°186 

6°064°600 

2°976°051 

134°805 

11°231°037 

0 

22°388°674 

394°483 

0 

103 

368 

1°696 

47 

485 

21 

317 

37 

53 

320 

1 

912 

29 

71 

193 

15°453°616 

1°382 

121°925°360 

1°078 

5°538 

25 

46 

214 

6 

216 

11 

123 

37 

13 

179 

0 

101 

5 

3 

11°299°158 

3°411°591 

14°684°577 

671°103 

14°900°293 

651°465 

4°415°700 

1°751°545 

0 

19°490°171 

0 

2°455°234 

1°676°333 

0 

144 

12°668°045 

166 

286 

927 

44 

432 

31 

285 

12 

49 

312 

0 

742 

22 

58 

791 

1°123 

88°075°215 

4°157 

8 

3 

3 

1 

16 

7 

0 

5 

68 

19 

6 

10 

79°536 

26°456 

559°995 

41°304 

2°505°463 

77°041 

0 

285°766 

5°940°049 

3°211°696 

187°055 

189°623 

19 

14 

65 

17 

71 

64 

25 

3 

141 

75 

26 

17 

537 

6°075 

15 

3 

5 

1 

26 

15 

0 

2 

49 

27 

5 

4 

447°721 

378°947 

79°088 

100°592 

2°438°843 

469°924 

0 

259°214 

1°793°594 

1°501°929 

277°754 

125°579 

152 

7°873°185 

1°275 

95°948°400 

34 

11 

67 

11 

59 

47 

19 

6 

142 

59 

50 

22 

527 

4°684 

EUR-12 TOTAL 

EUR-27 TOTAL 

493 

6°294 

146 

13°103°984 

1°538 

135°029°344 

25  

Article 325 report 2009, annex 12 of the Staff working document.