REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL based on Article 9 of Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL based on Article 9 of Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector
Date: 2011-06-06
Institutions: European Commission
Subjects: corruption, fight against crime, penalty, private sector

EUROPEAN COMMISSION 

Brussels, 6.6.2011 
COM(2011) 309 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

based on Article 9 of Council Framework Decision 2003/568/JHA of 22 July 2003 on 
combating corruption in the private sector 

{SEC(2011) 663 final} 

 
 
 
 
  
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

based on Article 9 of Council Framework Decision 2003/568/JHA of 22 July 2003 on 
combating corruption in the private sector 

1. 

INTRODUCTION 

1.1. 

Background 

Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the 
private sector aims, according to recital 10 of its Preamble, '…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, proportionate and dissuasive penalties.' 

At  its  heart  is  the  requirement  that  Member  States  criminalise  two  types  of  conduct,  which 
can be summarised as follows (Article 2 of the Framework Decision): 

– promising, offering or giving a bribe to a person in the private sector in order that he or she 
do something or refrain from doing something, in breach of that person's duties 

– requesting or receiving a bribe, or the promise of such, while working in the private sector, 
in order to do something, or refrain from doing something, in breach of one's duties. 

Article  9(1)  of  the  Framework  Decision  required  Member  States  to  take  the  necessary 
measures  to  comply  with  its  provisions  before  22  July  2005.  Article  9(2)  required  them  to 
transmit  to  the  Council  and  the  Commission  the  text  of  the  provisions  transposing  into 
national law the obligations imposed on them under the Framework Decision. 

1.2. 

Purpose of the report and method of evaluation 

In  2007  the  Commission  completed  the  first  implementation  report1  on  the  Framework 
Decision.  The  answers  provided  by  the  Member  States  indicated  that  the  level  of 
implementation was very poor. In 2007 only two Member States had correctly transposed its 
provisions into their domestic legislation.  

Since  then,  the  Stockholm  Programme  has  been  adopted,  calling  upon  the  Commission  to 
develop  a  comprehensive  anti-corruption  policy  and  establish  a  mechanism  to  evaluate 
Member  States'  efforts  to  fight  corruption.  It  therefore  seemed  necessary  to  evaluate  the 
implementation of this important instrument in the Member States.  

On  19  May  2009  the  Commission  sent  a  letter  to  all  Member  States  requesting  updated 
information on national measures implementing the Framework Decision, in order to prepare 
the second implementation report, planned before 31 December 2009. Not all Member States 
sent their notifications in time, thus obliging the Commission to postpone the publication of 

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COM (2007) 328 final. 

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the report. Moreover, when laws had been adopted in the meantime, Member States did not 
automatically notify the Commission of this fact. It was therefore necessary to supplement the 
official notifications with other information available in order to check implementation of the 
Decision. This additional information on the implementation of the Framework Decision has 
been gathered from available legislation, the GRECO III Round of Evaluation Reports and, in 
some cases, the OECD Working Group on Bribery reports.  

At  the  time  of  drafting,  all  Member  States  except  ES,  DK  and  LT  had  notified  their 
transposition measures. ES did not provide any information in 2007 or for the current report. 
In the absence of new information, the evaluation of DK and LT remains the same as for the 
2007 report.  

The  report  concentrates  on  Articles  2  to  7  (with  a  brief  reference  to  Article  10  where 
relevant), and records the declarations made by Member States under Articles 2 and 7. It does 
not  discuss  Articles  8,  9  or  11,  as  these  provisions  do  not  require  implementation.  The 
evaluation criteria adopted by the Commission for this report are the general criteria adopted 
in  2001  to  evaluate  the  implementation  of  framework  decisions  (practical  effectiveness, 
clarity  and  legal  certainty,  full  application  and  compliance  with  the  time  limit  for 
transposition)2. Secondly, criteria specific to this Framework Decision are also used, further 
details being provided in the following analysis of the individual articles. 

2. 

EVALUATION 

2.1. 

Article 2 – Active and passive corruption in the private sector 

2.1.1.  General remarks 

Article 2 is a key provision of the Framework Decision. It defines offences involving active 
and  passive  corruption,  when  carried  out  in  the  course  of  business  activities.  The  scope  of 
application of Article 2(1) includes business activities in both profit and non-profit entities.  

However, Member States could declare that they would limit the scope to conduct involving a 
distortion  of  competition  in  relation  to  the  purchase  of  goods  or  commercial  services.  The 
declarations  were  valid  till  June  2010.  Since  the  Council  did  not  take  a  decision  to  extend 
their validity, the Commission  assumes that  they are no longer valid, so the Member States 
that  have  submitted  such  a  declaration  will  have  to  amend  their  national  legislation  (such 
declarations had been made by DE, AT, IT and PL). 

As  in  2007,  implementation  of  Article  2  proved  highly  problematic  for  Member  States.  In 
2007, only 2 Member States (BE, UK) had correctly transposed all elements of the offence. 
Currently 9 Member States (BE, BG, CZ, FR, IE, CY, PT, FI, UK) have correctly transposed 
all of them. 

Member  States  found  it  particularly  difficult  to  capture  the  full  meaning  of  the  phrases 
'directly or through an intermediary' and 'a person who in any capacity directs or work' in their 
national legislation.  

The seven component requirements of Article 2(1) are listed below.  

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COM(2001) 771, 13.12.2001, point 1.2.2. 

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Article 2(1)(a) – active corruption 

Article 2(1)(b) – passive corruption 

•  'Promising, offering or giving' 

•  'Requesting  or  receiving  or  accepting  the 

promise of' 

•  'Directly or through an intermediary' 

•  'Directly or through an intermediary' 

•  'A  person  who  in  any  capacity  directs  or 

works' 

•  'While 

in  any  capacity  directing  or 

working' 

•  'For a private-sector entity' 

•  'For a private-sector entity' 

•  'An undue advantage of any kind' 

•  'An undue advantage of any kind' 

•  'For that person or for a third party' 

•  'For oneself or for a third party' 

•  'Perform  or  refrain  from  performing  any 

act, in breach of that person's duties' 

•  'Perform  or  refrain  from  performing  any 

act, in breach of that person's duties' 

2.1.2.  Detailed analysis 

2.1.2.1.  Article 2(1)(a) – active corruption  

12  Member  States  (BE,  BG,  CZ,  DK,  IE,  EL,  FR,  CY,  PT,  FI,  SI,  UK)  meet  all  seven 
requirements  of  the  definition  of  active  corruption.  The  most  problematic  elements  of 
transposing  Article  2(1)(a)  appear  to  be  covering  the  full  scope  of  'promising,  offering  or 
giving' and 'perform or refrain from performing any act, in breach of that person's duties.' 

NL limited the offence to instances where the employer or principal was not informed of the 
case.  LU  requires  that  the  employer  is  not  aware  and  does  not  approve  of  the  criminal 
behaviour. DE, AT, IT and PL had limited the scope of application in line with Article 2(3). 
DE  limited  the  scope  to  acts  relating  to  the  purchase  of  goods  or  commercial  services;  AT 
limited the offence to 'legal acts' and PL limited the offence to behaviour resulting in losses, 
unfair competition or inadmissible preferential action. DE has informed the Commission that 
new legislation to meet this requirement of the Framework Decision is pending. 

2.1.2.2.  In addition the Commission notes the following problems in transposition: 

–  EE  does  not  cover  offering  a  bribe,  intermediaries,  or  performing/refraining  from 

performing of the duties in breach of one’s duties 

–  IT  does  not  cover  offering  of  a  bribe,  intermediaries,  persons  who  work  in  the  private 

sector, or any third party for whom the bribe is intended. 

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–  LV  does  not  cover  the  element  of  promising  a  bribe  and  also  limits  the  offence  to  cases 
where the offer/promise was accepted. 'A responsible employee ... or a person authorised', 
as noted in the 2007 assessment, does not seem to include all employees, and thus does not 
fully capture the wording 'any person who in any capacity directs or works(…)'.  

–  HU does not refer to 'offering' an advantage or to 'directly or indirectly' 

–  RO does not make reference to a third part advantage 

–  SK does not specifically address offering a bribe or advantage. 

2.1.2.3.  Article 2(1) (b) – passive corruption 

12  Member  States  (BE,  BG,  CZ,  IE,  FR,  CY,  MT,  PT,  SI,  SK,  FI,  UK)  fully  comply  with 
Article 2(1)(b).  

In addition, the following was noted: 

–  DE has made a declaration that is no longer valid 

–  EE does not refer to intermediaries, 'requesting' a bribe and undue advantage 

–  EL does not cover a third-party advantage 

–  IT does not cover intermediaries, a third-party advantage, 'working' and 'requesting' a bribe 

–  LV – acceptance of an offer is not included in LV legislation 

–  LU limits the scope of the Article (see Article 2(1)(a)) 

–  HU does not address 'directly or indirectly' 

–  NL – advantage is to be concealed from the employer (narrower than in the Article) 

–  AT – more information is needed on intermediaries. In addition, 'servant/agent' of a private 

sector entity does not seem to cover those who direct such an entity. 

2.1.2.4.  Article 2(2) 

Article 2(2) establishes that Article 2(1) applies to business activities in both profit and non-
profit  entities.  Some  Member  States  make  explicit  reference  to  the  inclusion  of  non-profit 
entities in their legislation while others have worded their legislation in such a broad way that 
non-profit  entities  are  not  excluded.  Overall,  16  Member  States  have  fully  transposed  this 
provision (BE, BG, CZ, DE, EE, IE, FR, CY, HU, MT, NL, PL, PT, RO, FI, UK). In some 
cases,  the  wording  of  the  legislation  appears  broad  enough  to  cover  this  provision,  but 
additional explanation would be necessary (EL, IT, LV, MT, AT, SK, SE). 

2.1.2.5.  Article 2(3) 

Under Article 2(3), four Member States had already made a declaration (DE, IT, AT, PL) for 
the  previous  report.  The  declarations  were  valid  until  22  July  2010  (Article  2(4)).  Under 
Article  2(5),  the  Council  was  to  review  Article  2  in  due  time  before  22  July  2010  to  decide 
whether  such  declarations  could  be  renewed.  As  the  Council  took  no  such  decision,  the 

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Commission  considers  that  the  declarations  have  expired  and  that  Member  States  need  to 
amend their legislation accordingly. 

2.2. 

Article 3 – Instigation, aiding and abetting 

Article  3  focuses  on  secondary  participation  in  corruption  through  instigation,  aiding  and 
abetting. It does not address attempted offences3.  

The  overall  level  of  transposition  was  already  high  in  2007,  when  18  Member  States  have 
transposed this article. Currently, all 26 Member States that provided information (ES did not 
supply  any  information)  comply  with  Article 3. Those countries which provided little or no 
information,  but  were  found  to  comply  in  the  2007  report,  are  still  considered  to  be  fully 
compliant. The Commission is not aware of any changes in the legislation since 2007. 

2.3. 

Article 4 – Penalties and other sanctions 

Article 4 requires that private sector corruption offences be punishable by criminal penalties 
which  are  'effective,  proportionate  and  dissuasive'  (Article  4(1)).  It  also  requires  Member 
States  to  ensure  that  passive  and  active  corruption  in  the  private  sector  is  punishable  by  a 
maximum penalty of at least one to three years of imprisonment (Article  4(2)). Article 4(3) 
requires  Member  States,  in  accordance  with  their  constitutional  rules  and  principles,  to 
prohibit temporarily, in certain circumstances, natural persons from pursuing the particular or 
comparable business activity in a similar position or capacity. 

In  2007,  a  number  of  Member  States,  in  the  information  they  provided  on  Article  4(1), 
overlooked  the  penalties  for  offences  under  Article  3.  At  that  time,  only  eleven  Member 
States  (DK,  EE,  FI,  DE,  IE,  IT,  LT,  LU,  NL,  PL,  SE)  had  fully  transposed  Article  4.  The 
majority of Member States met the requirements of Article 4(3). 

Since then, considerable progress has been made. 22 Member States (BE, BG, CZ, DE, DK, 
EE, EL, IE, FR, IT, CY, LU, LT, HU, NL, PL, PT, SI, SK, FI, SE, UK) have fully transposed 
this article into their domestic law.  

These  Member  States  provide  for  penalties  and  other  sanctions,  as  required  in  Article  4(1). 
LV, MT, AT and RO did not provide sufficient information to assess whether the sanctions 
imposed cover also instigation, aiding and abetting (Article 3). ES did not reply.  

26 Member States have transposed Article 4(2). ES was not evaluated.  

22 Member States have fully transposed Article 4(3), LV has transposed it partly, MT has not 
transposed  it  and  CY  and  AT  did  not  provide  enough  information.  ES  did  not  provide  any 
information.  

3 

This is because the definition of active and passive bribery encompasses also the 'promising', 'offering' 
and 'requesting' or 'accepting the promise of'' and not only the 'giving' and 'receiving'. 

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2.4. 

Article 5 – Liability of legal persons 

Article  5  provides  for  the  liability  of  legal  persons  in  relation  to  both  active  and  passive 
corruption.  Member  States  have  to  ensure  that  legal  persons  are  liable  when  bribery  is 
committed for their benefit by any person who is 'acting either individually or as a part of an 
organ  of  the  legal  person'  and  has  a  leading  position  in  that  legal  person  (Article  5(1)). 
Member  States  have  to  ensure  that  a  legal  person  can  also  be  liable  in  cases  where  the 
commission  of  the  offence  was  made  possible  because  of  lack  of  supervision  or  control 
(Article  5(2)).  The  liability  of  legal  persons  does  not  exclude  criminal  proceedings  against 
natural persons involved as perpetrators, instigators or accessories (Article 5(3)).  

In 2007 only five Member States (LT, LU, NL, PL, SI) had fully transposed Article 5. 

While there has been significant progress since 2007, overall poor transposition of Article 5 is 
still a matter of concern for the Commission. 15 Member States have fully transposed Article 
5 (BE, DE, IE, EL, CY, LT4, LU, NL5, AT, PL, PT, RO, SI, SE, UK). 8 Member States have 
transposed it partly (BG, DK6, EE, FR, LV, HU, MT, FI). CZ and IT have not transposed it. 
SK did not provide sufficient information and ES did not submit any reply. 

23 Member States (all except CZ, IT, no data available for SK, ES) have established liability 
for legal persons, as provided for in Article 5(1).  

As many as 15 Member States have transposed Article 5(2) (BE, DE, IE, EL, CY, LU, AT, 
PL,  PT,  SI,  SE,  UK,  LT7,  NL8).  RO  was  requested  to  provide  further  clarifications  as  to 
whether the wording of its legislation (which appears to be compliant) covers the liability of 
legal  persons  in  cases  of  lack  of  control.  FR,  SK  and  LV  did  not  provide  sufficient 
information  and  CZ,  IT,  BG,  EE,  IT,  HU,  FI,  and  MT  were  considered  not  to  have  fully 
transposed Article 5(2).  

20 Member States (BE, BG, DE, EE, IE, EL, FR, CY, LV, LU, HU, MT, NL, AT, PL, PT, 
RO, SI, SE, UK) have transposed Article 5(3). It has not been transposed by CZ and IT, while 
SK, DK and FI did not provide sufficient information for assessment.  

The  analysis  was  hampered  by  a  lack  of  information  from  Member  States,  particularly  in 
relation  to  Articles  5(2)  and  5(3).  The  Commission  notes  that  many  Member  States  do  not 
refer directly in their legislation to the case of lack of supervision or whether or not corporate 
liability excludes the liability of the natural person.  

SK informed the Commission that the criminal liability of legal persons was included in the 
draft  amendments  to  the  Criminal  Code  and  Criminal  Procedure  Code  prepared  by  the  SK 
government, but that the adoption process had been suspended between 9 April 2008 and 20 
May 2009 pending a Constitutional Court decision. Following the ruling of the Constitutional 
Court, the legislation seems to have changed, but the Commission has not been notified of any 
of  the  changes,  nor  has  it  received  the  new  text.  It  was  therefore  impossible  to  assess 
compliance with Article 5. 

4 
5 
6 
7 
8 

According to the information provided for the 2007 report. 
According to the information provided for the 2007 report. 
According to the information provided for the 2007 report. 
According to the information provided for the 2007 report. 
According to the information provided for the 2007 report. 

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2.5. 

Article 6 – Penalties for legal persons 

Article 6 requires Member States to establish effective, proportionate and dissuasive sanctions 
for legal persons (criminal or non-criminal) for active and passive corruption, instigation and 
abetting  and  for  making  commission  of  the  offence  possible  through  lack  of  supervision  or 
control. It also gives examples of sanctions which may be imposed, such as exclusion from 
public  benefits  or  aids,  disqualification  from  the  practice  of  commercial  activities,  judicial 
supervision, or a judicial winding-up order.  

In  2007,  5  Member  States  (DK,  LT,  NL,  PL,  SI)  had  fully  transposed  Article  6.  Further 
information was requested from a number of Member States in order to assess their position. 
For the Member States that did not provide any further information, the evaluation in the 2007 
report was maintained. 

Currently, 16 Member States (BE, DK, DE, IE, EL, FR, LT, LU, NL, AT, PL, PT, RO, SI, 
SE,  UK)  have  transposed  Article  6.  However,  further  clarification  is  required  from  RO  and 
UK.  

5 Member States (BG, EE, LV, HU, FI) have partly met the requirements of Article 6. FI was 
requested to provide further clarifications as to the limitations of corporate liability.  

4  Member  States  (CZ,  IT,  CY,  MT)  have  not  transposed  Article  6.  ES  did  not  supply  any 
information. SK has not notified its new law on the  criminal liability  of legal  persons, so it 
was impossible to assess whether or not SK meets the requirements of this article.  

The level of implementation of Article 6(1), obliging Member States to establish penalties for 
legal  persons  for  active/passive  bribery,  is  higher  than  for  Article  6(2),  since  20  Member 
States  have  implemented  its  provisions.  Only  14  Member  States  have  implemented  Article 
6(2) (BE, DK, DE, IE, EL, FR, NL, AT, PL, PT, RO, SI, SE, UK). 4 Member States (LV, BG, 
HU, SK) did not provide sufficient information or did not refer to liability in cases of lack of 
supervision at all. EE, CZ, CY, IT and MT have not transposed Article 6(2) and FI meets the 
requirements partially. 

2.6. 

Article 7 - Jurisdiction 

Article 7 requires Member States to take the necessary measures to establish jurisdiction over 
an offence falling under the scope of this Framework Decision,  where  the  offence  has  been 
committed in whole or in part on its territory, by one of its nationals, or for the benefit of a 
legal person that has its head office in its territory. Member States have a margin of discretion 
in applying the last two jurisdiction rules. 

In 2007, on the basis of the information supplied, only 3 Member States (DK, DE, UK) had 
transposed this Article.  

Currently  only  9  Member  States  (BE,  CZ,  DK,  DE,  IE,  LU,  HU,  NL,  UK)  have  fully 
transposed Article 7. It seems that 15 Member States (BG, EE, EL, FR, IT, CY, LV, MT, PL, 
PT, RO, SI, SK, FI, SE) have partly transposed the article, but in many cases there was not 
enough  information  on  every  provision  to  fully  assess  compliance.  10  Member  States  (DK, 
DE,  EE,  FR,  LT,  HU,  AT,  FI,  SE,  UK)  have  decided  not  to  apply  certain  jurisdiction  rules 
(when the offence has been committed by one of its nationals or committed for the benefit of 
a  legal  person  with  its  head  office  in  the  territory  of  the  Member  State).  In  general, 
considering the lack of information provided, it was not possible for the Commission to draw 

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a clear picture of the implementation of this provision. Member States are requested to submit 
more  precise  information  in  order  to  allow  the  Commission  to  carry  out  an  in-depth 
evaluation.  

2.7. 

Article 10 – Territorial application 

No further information was provided as to when Gibraltar will transpose the instrument. The 
UK stated that this will be done as soon as legislative time allows.  

3. 

CONCLUSIONS 

The  assessment  is  limited  to  the  transposition  of  specific  provisions  into  the  domestic 
legislation.  Due  to  lack  of  comparable  statistics  and  figures  on  cases  of  corruption  in  the 
private  sector,  it  was  not  possible  to  assess  the  practical  impact  of  the  transposition  of  the 
provisions of this Framework Decision. 

As far as the transposition itself is concerned, it is still not satisfactory, despite some progress 
achieved. The main problem lies in weak transposition of some elements of Articles 2 and 5. 
With regards to the transposition of Article 5 , the assessment was mainly carried out against 
the national criminal law provisions, as notified by the Member States. Although aware that 
the sanctions referred to in Article 5 may also be of administrative or civil nature, the current 
assessment relied only on the available data notified by the Member States. 

The Commission recalls the importance of fighting corruption in the private sector and calls 
upon Member States to adopt without delay all the necessary measures in this regard.  

The Commission invites all Member States to consider this report and to provide all further 
relevant  information  to  the  Commission  and  to  the  Council.  In  addition,  the  Commission 
invites Member States that have since adopted new legislation to notify these measures to the 
Commission and to the Council. 

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