Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the fight against fraud to the Union's financial interests by means of criminal law
Date: 2012-07-11
Institutions: European Commission
Subjects: Community budget, approximation of laws, corruption, fraud against the EU, judicial cooperation in criminal matters in the EU, penalty

EUROPEAN COMMISSION 

Brussels, 11.7.2012  
COM(2012) 363 final 

2012/0193 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the fight against fraud to the Union's financial interests by means of criminal law 

{SWD(2012) 195 final} 
{SWD(2012) 196 final} 

EN 

   EN 

 
 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1 General context 

Fraud  and  related  illegal  activities  affecting  the  Union's  financial  interests  pose  a  serious 
problem to the detriment of the Union budget and thereby of taxpayers. The objective of the 
Union budget to improve living conditions and to generate growth and jobs is endangered if 
money  is  misused.  This  especially  holds  true  in  times  of  fiscal  consolidation  and 
responsibility and structural reforms for growth. According to the 2010 Commission report on 
the  protection  of  the  Union's  financial  interests,1  suspected  fraud  amounts  to  approximately 
600 million euro annually on the revenue and expenditure side despite the legal framework in 
place. It can be assumed that the actual amount is even higher as not all cases are detected and 
reported.  

The  Union  needs  to  defend  taxpayers'  money  in  the  most  efficient  way,  making  use  of  all 
possibilities offered by the Treaty on European Union. The damage to the EU budget calls for 
action  to  ensure  equivalent  and  effective  protection  of  the  Union's  financial  interests, 
including  criminal  law  as  far  as  this  proves  necessary.  Despite  the  development  of  an  EU 
acquis in this area which includes fraud, corruption and  money laundering2, Member  States 
have  adopted  diverging  rules  and  consequently  often  diverging  levels  of  protection  within 
their national legal systems. This state of affairs shows that there is no equivalent protection 
of  the  Union's  financial  interests,  and  that  measures  against  fraud  have  not  reached  the 
necessary level of deterrence.  

For example, with respect to fraud the Member States have included definitions of this crime 
in many different forms of legislation, ranging from general criminal law, which may include 
specific or generic offences,  to  criminal tax  codes.3 A similar divergence can be noted with 
respect to the levels of sanctions, which are applicable to these forms of crime in the different 
Member States:4  

MS  Sanctions 

AT 

BE 

1 

2 

3 

4 

Imprisonment up to 6 months (§ 146 StGB), 3 years (§ 147 (1) and (2) StGB), 10 years (§§ 147 (3), 148 StGB); 
Imprisonment up to 3 resp. 5 years and fine up to the double amount of the evaded amount (§ 7 AEG). 

Imprisonment from 1 month to 5 years (Article 450 Income Tax Code), Imprisonment from 2 months to 3 years 
(Article 451 Income Tax Code) and fines (Articles 259, 260 and 261 of the General Law on customs and excise tax).  

COM(2011)595  final,  and  accompanying  Staff  Working  Documents  SEC(2011)1107,  1108  and  1109 
final. 
Convention of 26 July 1995 (OJ C 316, 27.11.1995, p. 49) (fraud); First Protocol of 27 September 1996 
(OJ 
313,  
C 
23.10.1996, p. 2) and Convention of 26 May 1997 (OJ C 195, 25.6.1997) (corruption); Protocol of 29  
November 1996 (OJ C 151, 20.5.1997, p. 2) (court interpretation); Second Protocol of 19 June 1997 (OJ 
C 221, 19.7.1997, p. 12) (money laundering). 
See the Commission's reports on the implementation of the PIF Convention in COM (2004) 709 final, 
of 25.10.2004 and COM(2008) 77 final of 14.2.2008. 
The  table  is  an  extract  of  a  more  comprehensive  overview,  also  for  other  offences,  in  the  impact 
assessment that accompanies this proposal for a Directive. The table should give an approximate picture 
of the situations in Member States by December 2011. 

EN 

2 

   EN 

                                                 
MS  Sanctions 

BG 

CY 

Imprisonment of 1 to 8 years (Article 209, 210 CC), Imprisonment of 3 to 10 years (Article 211 CC), Imprisonment 
of 2 to 8 years for (Article 212 CC), Imprisonment of 3 to 10 years (Article 212(3) CC)  

Imprisonment of 5 years (Article 300 CC), Imprisonment of up to 3 years or a fine that does not exceed €5,125.80  or 
both 

CZ 

Imprisonment of up to 2 years (§ 209 - 212 CC) 

DK 

Imprisonment not exceeding 1 year and 6 months (Article 279 Penal Code) (Article 289A Penal Code), 8 years in 
aggravated cases 

EE 

Fine or imprisonment of up to 3 years (§209 Penal Code), 5 years ((§210 Penal Code)  

FI 

FR 

Fine or imprisonment from 14 days to 2 years (Ch.36, Section 1 CC), (Ch.29, Section 1 CC) (Ch.29, Section 5 CC), 
4 months to 4 years in aggravated form 

Imprisonment of maximum 5 years and fine of €375,000  (Article 313-1 to 313-3 CC), maximum 7 years and fine of 
€750,000 in aggravated form  

DE 

Imprisonment of not more than 5 years or a fine (§263 GCC) 

EL  Between 10 days and 5 years, 3 months to 5 years (Article 386(1) CC), 2 years to 5 years in aggravated form 

HU 

Imprisonment of up to 2 years (§318 CC), 5 years (§314 CC). 

IR 

IT 

LV 

Imprisonment not exceeding 5 years (Section 42 of the 2001 Act) 

Imprisonment of 6 months to 3 years and a fine of from € 51  to € 1,032.00  (Article 640.1 C.P), imprisonment from 
1 to 6 years (Article 640 bis C.P)  

Imprisonment for a term not exceeding 3 years, or custodial arrest, or community service, or a fine not exceeding 
sixty times the minimum monthly wage (€17,074.20) (S ection 177 Criminal Law) 

LT  Community service or a fine, or restriction of liberty, or arrest, or imprisonment for a term of up to 3 years (Article 

182 CC) or up to 8 years (serious crime) 

LU 

MT 

Imprisonment from 1 month to 1 year or fine from €500  to €30,000  (Article 490 CC), Imprisonment from 1 month 
to 1 year or fine from €500 to €10,000 (Article 498 CC) 

Imprisonment from 4 months to 1 year (Article 298(1) CC), Imprisonment for a term not exceeding 18 months and 
payment of a fine of €2,329.37  to €34,940.60  (Article 298C CC), Imprisonment from 7 months to 2 years for 
(Article 308 CC), Imprisonment from 1 to 6 months or a fine (Article 309 CC) 

NL 

Imprisonment not exceeding, 1 year (Article 328 PC), 2 years (Article 334 PC), 3 years (Article 360 PC), 4 years 
(Articles 227, 326 PC) or 6 years (Articles 225, 336, 359 PC) or fines of up to €76,000  

PL 

Imprisonment for a term of between 3 months and 5 years (Article 297 Penal Code) 

PT 

Imprisonment up to 3 years or a fine (Article 217 CC) 

RO 

Imprisonment between 6 months and 12 years (Article 215 CP) (basic case) 

SI 

Imprisonment for not less than 3 months and not more than 3 years (Article 229 KZ-1), Imprisonment for not more 
than 3 years (Article 211 KZ-1), Imprisonment for not more than 5 years (Article 228 KZ-1), Fine or imprisonment 
for not more than 3 years (Article 231 KZ-1) 

SK 

Imprisonment of up to 2 years (Section 221 CC), Imprisonment of 1 to 5 years (Section 222-225) 

ES 

Imprisonment of 6 months to 3 years (Article 252 CC)  

SE 

Imprisonment for at most 2 years (Ch.9, Section 1 Penal Code)  

UK  Summary conviction: imprisonment not exceeding 12 months, to a fine or to both (Section 1 Fraud Act 2006); 

Conviction on indictment: imprisonment not exceeding 10 years, to a fine or to both 

Such diversions have a negative impact on the effectiveness of the Union's policies to protect 
its financial interests, as demonstrated in the Impact Assessment accompanying this proposal. 
Common offences in all Member States would reduce the risks of divergent practice, as they 
would  ensure  a  uniform  interpretation  and  a  homogeneous  way  to  meet  all  the  necessary 
prosecution  requirements.  They  would  also  strengthen  the  deterrent  effect  and  enforcement 

EN 

3 

   EN 

potential of relevant provisions, and reduce the incentive for potential perpetrators to move to 
more lenient jurisdictions within the Union to exercise their intentional illegal activities. 

Equivalent  protection  of  its  financial  interests  is  also  a  matter  of  credibility  of  the  Union's 
institutions,  bodies,  offices  and  agencies,  and  of  ensuring  a  legitimate  budget  execution. 
Therefore, not only fraud in its strict sense should be covered by this proposal, but also other 
fraud-related forms of illegal behaviour through which the EU budget is damaged, including 
corruption, money laundering and obstruction of public procurement procedures. The decisive 
element is that a profit is made at the expense of the EU budget, and thus at the expense of all 
taxpayers.  

An  additional  reason  for  proposing  a  new  legal  instrument  is  the  need  to  adopt  concrete 
measures to implement the Commission's overall strategic approach to combating fraud. The 
Commission is therefore proposing this Directive. 

1.2 Legal context 

The  first  elements  of  criminal  law  protection  of  the  Union's  financial  interests  were 
introduced  in  1995  with  the  Convention  for  the  protection  of  the  financial  interests  of  the 
European  Communities  and  accompanying  protocols  (hereinafter  collectively  referred  to  as 
the "PIF Convention").5 The  PIF Convention was  subsequently ratified by, and entered into 
force  with  respect  to,  almost  all  Member  States.6  Relevant  general  Union  criminal  law 
measures  include  the  Council  Framework  Decision  2005/212/JHA  of  24  February  2005  on 
Confiscation  of  Crime-Related  Proceeds,  Instrumentalities  and  Property,7  which  the 
Commission proposed to replace by a Directive on the freezing and confiscation of proceeds 
of crime in the European Union8 for Member States participating therein. 

This  framework  is  complemented  by  general  Union  criminal  law  measures  for  the  fight 
against  certain  illegal  activities  particularly  harmful  to  the  licit  economy,  such  as  money 
laundering9  and  corruption10,  which  -  although  not  specific  to  the  protection  of  the  Union's 
financial interests - also contribute to their protection. 

In  May  2011,  the  Commission  issued  a  Communication  on  the  protection  of  the  Union's 
financial  interests  by  criminal  law  and  by  administrative  investigations11  accompanied  by  a 
Staff Working Document.12 These documents point to the patchwork of provisions on crime 
definitions and criminal sanctions which has developed across the EU under the current legal 
framework. The documents also set out that the Commission would consider criminal law as 
one of the elements to improve this state of play.  

5 
6 

7 
8 
9 

10 

11 
12 

See footnote 2 above. 
Second  Commission  Report  on  the  Implementation  of  the  Convention  for  the  Protection  of  the 
European Communities' financial interests and its protocols, 14.2.2008, COM(2008)77 final, at section 
4.1.  Further  Member  States  have  since  ratified  the  Convention  and  its  protocols.  Only  the  Czech 
Republic did not ratify yet, but has commenced the internal constitutional procedure for doing so. 
OJ L 68, 15.3.2005, p. 49. 
COM(2012)85 final of 12.3.2012. 
Directive 91/308/EEC, later repealed and replaced by Directive 2005/60/EC of 26 October 2005 on the 
prevention  of  the  use  of  the  financial  system  for  the  purpose  of  money  laundering  and  terrorist 
financing, OJ L 309, 25.11.2005, p. 15. 
Commission  Decision  of  6.6.2011  establishing  an  EU  anti-corruption  reporting  mechanism,  C(2011) 
3673 final. 
COM(2011)293 final of 26.5.2011. 
SEC(2011)621 final of 26.5.2011. 

EN 

4 

   EN 

                                                 
The  Communication  "Towards  a  European  criminal  policy"  of  September  201113  sets  out  a 
proposed  general  framework  for  the  content  and  structure  of  EU  criminal  law,  as  well  as 
general principles of EU criminal law legislation, namely the need that EU criminal law does 
not go further than what is necessary and proportionate in relation to its objectives.  

A  body  of  administrative  law  for  the  fight  against  illegal  activities  at  the  expense  of  the 
Union's  financial  interests  has  developed  gradually.  Regulation  (EC,  Euratom)  No  2988/95 
sets  out  administrative  rules  for  dealing  with  illegal  activities  at  the  expense  of  the  Union's 
financial  interests14,  flanked  by  sectoral  administrative  rules15.  In  addition  to  the  horizontal 
instruments specifically on the protection of the Union's financial interests referred to above, a 
number of administrative law instruments of the Union contain relevant provisions relating to 
illegal activities affecting the Union's public money.16  

2. 

RESULTS  OF  CONSULTATIONS  WITH  INTERESTED  PARTIES  AND 
IMPACT ASSESSMENT 

2.1 Consultations with interested parties 

The Commission has consulted stakeholders on a number of occasions. The Commission has 
in  particular  consulted  criminal  law  academics  on  25  October  2011  as  well  as  government 
officials  from  the  Member  States  in  a  dedicated  meeting  on  6  December  2011. 
Representatives of the Civil Liberties, Justice and Home Affairs Committee of the European 
Parliament  were  also  in  attendance.  Views  of  Member  States'  prosecution  services  were 
gathered  through  questionnaires  and  discussion  at  the  Forum  of  the  Prosecutors-General 
convened by Eurojust in The Hague on 23 June 2011 and again on 16 December 2011. The 
Commission has also met with representatives of the Taxpayers' Association of Europe in an 
expert meeting held on 25 January 2012. 

Experts  have  underlined  significant  weaknesses  of  the  existing  legal  framework  for  the 
protection  of  the  Union's  financial  interests.  This  was  specifically  the  case  as  regards  time 
limitation  periods  for  prosecutions.  Academic  experts  underscored  the  importance  of  the 
principle whereby criminal law should only be used as a last resort, with due attention to the 
principles  of  subsidiarity  and  proportionality.  As  criminal  law  constitutes  a  very  stern 
mechanism of social control, deeply affecting fundamental civil liberties, it must be used as a 
measure of last resort and implemented in a manner that protects fundamental interests whilst 
respecting  civil  liberties  and  benefiting  citizens.  Member  State  experts  were  generally 
supportive  of  the  objective  pursued  by  the  Commission,  i.e.  safeguarding  taxpayers'  money 
and fundamental interests worthy of protection equally across the European Union. Amongst 
practitioners, there was a widely shared perception that clear criminal law providing a level 
playing field was relevant, and that it should be complemented by measures in the procedural 
field to respond to the deficiencies they identified in this context. The latter point is reflected 
in  the  Commission's  work  programme  which  foresees  a  separate  initiative  on  procedural 

13 
14 
15 

16 

COM(2011)573 final of 20.9.2011. 
OJ L 312, 23.12.1995, p. 1. 
E.g., for the field of agriculture, Regulation (EC) No 73/2009 for direct support schemes for farmers, OJ 
L 30, 31.1.2009, p. 16. 
For  an  overview  of  these  instruments  see:  Study  on  the  legal  framework  for  the  protection  of  EU 
financial interest by criminal law RS 2011/07, 4 April 2012, p. 22. 

EN 

5 

   EN 

                                                 
measures  for  the  protection  of  the  Union's  financial  interests  in  2013.  The  Taxpayers' 
Association  of  Europe  expressed  strong  support  for  the  Commission's  intention  to  better 
safeguard the Union's financial interests against illegal misuse, as well as for its approach to 
set out a comprehensive, deterring criminal law framework for the protection of the Union's 
financial interests. 

2.2 Impact Assessment 

The Commission conducted an impact assessment of policy alternatives, taking into account 
the outcome of an external study which was completed in February 2012.17 After considering 
the  possible  options,  the  impact  assessment  concludes  that  a  solution  which  in  particular 
would  extend  the  types  of  some  fraud-related  offences,  introduce  minimum  sanctions  and 
harmonise statutory limitation is to be preferred. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1 

The legal basis 

The proposal is based on Art. 325(4) of the Treaty on the Functioning of the European Union. 

Article  325  sets  out  the  EU's  competence  to  enact  the  necessary  measures  in  the  fields  of 
prevention  of  and  fight  against  fraud  and  any  other  illegal  activities  affecting  the  Union's 
financial  interests  which  "act  as  a  deterrent".  Article  325(4)  provides  for  the  legislative 
procedure to adopt the necessary measures with a view to affording effective and equivalent 
protection. It also provides for a legal base to legislate on fraud and any other illegal activities 
affecting  the  Union's  financial  interests  in  the  fields  of  the  prevention  and  the  fight  against 
fraud.  The  term  fraud  must  in  this  context  be  understood  in  a  broad  sense,  including  also 
certain fraud-related criminal offences. 

The  fight  against  illegal  activities  affecting  the  Union's  financial  interests  is  a  very  specific 
policy area, as the provision's positioning in a special chapter dedicated to "combating fraud" 
in the title on "financial provisions" in the Treaty indicates. Also, the term "deterrent" appears 
nowhere else in the Treaty. This shows that in this specific field, the Union has a broad array 
of tools at its disposal. This peculiarity is further strengthened by Article 310(6) TFEU which 
already  in  the  very  first  article  of  the  Title  on  financial  provisions  underscores  the  need  to 
fight illegal activities affecting the Union's financial interests ("shall counter").  

The purpose of Article 325 is to protect the single interest which this priority policy is about, 
i.e. Union public money, wherever it should be collected or spent.  

• 

17 

18 

The protection of Union public money is a solidarity interest at Union level which is 
different  from  the  sum  of  the  Member  States'  national  financial  interests.  For  these 
reasons, the Treaty confers upon the Union strong powers to adopt "measures" which 
"act as a deterrent" and "afford effective" (Article 325(1) and "equivalent protection" 
(Article  325(4)).18  Deterrent,  effective  and  equivalent  protection  comprises  by 

Specific  Contract  No.  JUST/2011/EVAL/FW/1023/A4  -  Study  on  the  legal  framework  for  the 
protection of EU financial interests by criminal law. 
Ibid. 

EN 

6 

   EN 

                                                 
nature,  and  historically  (see  PIF  Convention  of  1995),  a  criminal  law  dimension. 
Criminal  law  is  needed  in  order  to  have  a  preventive  effect  in  this  area,  where  the 
threat  of  criminal  law  sanctions,  and  their  effect  on  the  reputation  of  potential 
perpetrators, can be presumed to act as a strong disincentive to commit the illegal act 
in  the  first  place.  Article  325  therefore  includes  the  power  to  enact  criminal  law 
provisions  in  the  context  of  the  protection  of  Union's  financial  interests  against  all 
angles of illegal attacks, which was not the case in the correspondant Article 280 (4) 
in the EC-Treaty. 

• 

The Union's financial interests are not defined by the Treaty itself, but it is clear from 
the  wider  wording  than  the  "budget",  which  is  used  elsewhere  in  the  Treaty  (e.g. 
Article  310(1)  second  subparagraph)  that  all  funds  managed  by  or  on  behalf  of  the 
Union are covered19. 

This  proposal  replaces  the  proposal  for  a  Directive  on  the  criminal-law  protection  of  the 
Community's financial interests.20 

3.2 

Subsidiarity, proportionality and the respect for fundamental rights 

It is considered that there is a need for Union action based on the following factors: 

The Union's financial interests relate to assets and liabilities managed by or on behalf of the 
Union. Thus, the Union's financial interests are by nature, and from the start, placed at Union 
level. As such, they are even more "Union-centred" than a field subject to harmonisation of 
rules in the Member States. They are more comparable in form and substance to rules on the 
Union institutions', bodies', offices' and agencies' self-protection, such as in terms of physical 
or IT-security. As a result, they cannot reasonably be dealt with by the Member States alone. 
It  goes  in  line  with  this  assessment  that  the  Treaty  itself  presumes  in  Articles  310(6)  and 
325(1) and (4) TFEU the necessity of Union legislative action for setting out equivalent and 
deterrent  measures  to  protect  the  Union's  financial  interests  against  illegal  activities. 
Furthermore,  under  Article  48  of  Council  Regulation  (EC,  Euratom)  No  1605/2002,  the 
European  Commission  is  fully  responsible  for  implementation  of  all  the  revenue  and 
expenditure of the Union budget.  

The Union is best placed to protect its financial interests, taking into account the specific EU 
rules which apply in this field. These include the budgetary rules of the Financial Regulation, 
the  general  rules  on  the  protection  of  financial  interests  by  administrative  law,  and  sectoral 
rules on the protection of financial interests in the various policy areas which can be affected. 
This applies also to the extent that criminal law provisions for the protection of the Union's 
financial  interests  might  be  rendered  more  similar.  The  general  subsidiarity  requirement  for 
EU  legislation  must  be  given  special  attention  with  regard  to  criminal  law.  This  means  that 
the  EU  can  only  legislate  if  the  goal  cannot  be  reached  more  effectively  by  measures  at 
national  or  regional  and  local  level  but  rather  due  to  the  scale  or  effects  of  the  proposed 
measure  can  be  better  achieved  at  Unions  level.  Only  the  Union  is  in  a  position  to  develop 
binding  approximation  legislation  with  effect  throughout  the  Member  States,  and  thus  to 
create a legal framework which would contribute to overcoming the weaknesses of the current 

19 
20 

See also as a reference the definition in Article 1(2) of Regulation (EC, Euratom) No 2988/95. 
COM(2001)272 final of 23.5.2001, as amended on COM(2002)577 final of 16.10.2002. 

EN 

7 

   EN 

                                                 
situation, including in particular the lack of equivalence which is inconsistent with the Treaty 
objectives set out in Article 325(4) TFEU. 

The  proposal  is  relevant  to  the  following  rights  and  principles  of  the  Union  Charter  of 
Fundamental  Rights:  the  rights  to  liberty  and  family  life  (by  possible  imprisonment  of 
convicted  perpetrators), the freedom  to choose an occupation and to conduct a business (by 
possible  disqualifications  of  convicted  perpetrators),  the  right  to  property  (by  possible 
shutting down of businesses having committed offences), criminal fines upon conviction and 
confiscation,  legality  and  proportionality  of  criminal  offences  (because  new  offence 
definitions are set out), the right not to be tried twice (because of interplay with administrative 
sanction regimes). These interferences are justified because they serve to meet objectives of 
general  interest  recognised  by  the  Union  (see  Article  52  para.  1  of  the  Charter),  and  in 
particular to provide effective and deterring measures for the protection of Union's financial 
interests. In light of the lack of improvements as far as levels of irregularities and fraud are 
concerned  and  the  ineffectiveness  of  the  current  measures  under  the  PIF  Convention,  it  is 
necessary  to  adopt  criminal  law  measures  to  fight  and  prevent  fraud  and  related  illegal 
activitities.  It  has  carefully  been  ensured  that  these  measures  do  not  go  beyond  what  is 
necessary to achieve this objective and are thus proportionate.  

3.3 Choice of instruments 

In  order  to  set  out  harmonised  criminal  law  provisions  in  the  field  of  the  protection  of  the 
Union's  financial  interests,  while  allowing  Member  States  a  certain  degree  of  flexibility  as 
regards how to impose more stringent provisions, a Directive is the appropriate instrument. 

3.4 Specific provisions 

Article 1: Subject matter – this provision sets out the purpose and scope of this proposal, and 
in particular that it only applies to the protection of the Union's financial interests. 

Article 2: Definition of the Union's financial interests – this provision sets out a definition of 
the Union's financial interests which applies throughout the instrument. The European Court 
of Justice has confirmed21 that there is a direct link between, on the one hand, the collection of 
the Value Added Tax revenue in compliance with the applicable Union law, and on the other, 
the availability to the Union budget of the corresponding Value Added Tax resources, since 
any lacuna in collection of the first potentially causes a reduction in the second. Value Added 
Tax  fraud  therefore  has  to  be  considered  as  affecting  the  EU's  financial  interests  and  is 
therefore covered by this proposed Directive. 

Article  3:  Fraud  affecting  the  Union's  financial  interests  –  this  provision  provides  for  a 
definition of fraudulent behaviour to be criminalised in the Member States.  

Article  4:  Fraud  related  offences  affecting  the  Union's  financial  interests  –  this  provision 
concerns illegal activities in the context of preventing and fighting fraud. 

It provides that dishonest conduct of tenderers in public procurement is to be criminalised in 
the  Member  States.  It  covers  behaviour  similar  to  fraud,  whereby  true  information,  albeit 
based on information unduly received from public authorities, is given to a tendering body in 

21 

Judgment of 15 November 2011 in C-539/09, Commission v Germany (OJ 2012, C 25, p. 5). 

EN 

8 

   EN 

                                                 
the  course  of  a  grant  procedure.  Such  a  provision  already  exists  in  a  number  of  Member 
States, but the level of sanctions vary considerably (for example, from one day imprisonment 
in  one  State  to  a  minimum  of  three  years  imprisonment  in  another22). It has been estimated 
that  the  lack  of  efficient  legislation  on  this  point  entails  40  million  euro  of  losses  for  the 
Union  budget  annually23.  Bid-rigging  behaviour  between  tenderers  is  already  subject  to 
enforcement action and sanctions at Union and Member State level and will remain outside 
the scope of the Directive.  

Article 4 also provides for a definition of corruption, largely based on the PIF Convention and 
its  protocols,  to  be  criminalised  in  the  Member  States.  National  laws  implementing  the 
Convention for the protection of the European Communities' financial interests of 1995 and 
its  Protocols  and  relevant  case-law  indicate  that  the  Convention's  definitions  of  passive  and 
active corruption need to be developed further. Contrary to the PIF Convention, it will not be 
required  that  the  conduct  is  "in  breach  of  official  duties"  to  be  covered  by  the  provision.  A 
specific provision is necessary here, since corruption is a particularly serious problem in the 
area  of  the  Union's  financial  interests.  Article  4  also  provides  for  a  definition  of 
misappropriation, which covers conduct by public officials that does not constitute fraud in a 
stricter  sense,  and  which  consists  in  the  misappropriation  of  funds  or  assets  contrary  to  the 
purpose foreseen, with the intention to damage the Union's financial interests. A reference to 
anti-money  laundering  legislation  with  respect  to  money-laundering  of  the  proceeds  of  the 
offences criminalised under the Directive is also made, so that such money laundering will be 
criminalised in the Member States. This will ensure that the same sanctions regime applies to 
all criminal offences against the Union's financial interests. 

The Article gives a definition of public officials, which includes not only persons that hold a 
legislative, administrative or judicial office or otherwise exercise public service function for 
the Union or in Member States, but also persons exercising such a function in third countries. 
Indeed,  the  Union's  financial  interests  require  protection  also  in  case  of  active  and  passive 
corruption,  or  misappropriation  of  funds,  with  regard  to  persons  in  third  countries  to  the 
extent that they manage Union funds. 

Article  5:  Incitement,  Aiding  and  Abetting,  Attempt  –  this  is  a  provision  applicable  to  the 
offences  mentioned  above,  which  requires  Member  States  to  criminalise  also  forms  of 
preparation  of  and  participation  in  such  offences.  Criminal  responsibility  for  attempt  is 
excluded for the majority of the offences, since the basic crime definitions in question already 
cover elements of attempt.  

Article 6: Liability of legal persons – this is a provision applicable to all offences mentioned 
above, which requires Member States to ensure liability of legal persons, while excluding that 
such liability is alternative to that of natural persons. 

Article  7:  Penalties  for  natural  persons  –  this  is  a  provision  applicable  to  all  offences 
mentioned  above,  which  requires  Member  States  to  apply  effective,  proportionate  and 
dissuasive sanctions, in line with jurisprudence of the Court of Justice, and to set out a certain 
minimum  set  of  criminal  sanctions  for  natural  persons.  The  foreseen  penalties  are 
proportionate in relation to the considerable seriousness of the offences and are in line with 

22 

23 

Study on the legal framework for the protection of EU financial interest by criminal law RS 2011/07, 4 
May 2012, p. 74.  
Ibidem, p. 150. 

EN 

9 

   EN 

                                                 
the  sanctions  currently  provided  for  in  a  majority  of  Member  States.  Article  7  also  clarifies 
certain  aspects  of  the  relation  between  the  Directive  and  disciplinary  penalties  decided  on 
other grounds. 

Article 8: Minimum imprisonment ranges – these provisions apply to all offences mentioned 
above,  and  require  certain  minimum  imprisonment  terms  for  particularly  serious  offences, 
based  on  thresholds  set  out  for  each  offence.  The  introduction  of  minimum  sanctions  will 
ensure consistency across the Union in terms of sanctions that apply in any Member State for 
a given type of conduct, with the effect that the Union's financial interests will be protected in 
an effective and equivalent manner throughout the Union. Economic crime – including fraud 
–  is  typically  an  area  where  criminal  sanctions  can  have  a  particularly  deterrent  effect,  as 
potential perpetrators can be expected to make a certain calculation of risks before deciding to 
engage  in  such  criminal  activities.  The  introduction  of  minimum  sanctions  is  consequently 
considered necessary to ensure that an effective deterrence all over Europe can be achieved. 
The minimum sanction of six months remains proportionate in relation to the seriousness of 
the offences and also ensures that a European Arrest Warrant can be issued and executed for 
the offences listed in Article 2 of the Framework Decision on the European Arrest Warrant24, 
thus ensuring that judicial and law enforcement cooperation will be as efficient as possible. 

Article 9: Minimum sanction types for legal persons – this is a provision similar to Article 7, 
applicable to sanctions for legal persons.  

Article  10:  Freezing  and  confiscation  –  this  is  a  provision  applicable  to  all  offences 
mentioned  above,  which  requires  the  existence  of  means  of  freezing  and  confiscation  of 
proceeds and instrumentalities from these offences.  

Article  11:  Jurisdiction  –  this  provision  is  based  on  the  principles  of  territoriality  and 
personality. It is applicable to all offences mentioned above, which requires the existence of 
competence  bases  for  the  judicial  authorities  which  allow  them  to  initiate  investigations, 
pursue prosecutions and bring to judgment cases relating to the Union's financial interests. In 
view  of  the  fact  that  this  Directive  does  not  allow  for  the  prosecution  of  instances  of  fraud 
where Member States cannot exercise jurisdiction, Member States and the Commission will 
share  evidence  of  fraudulent  conduct  committed  outside  the  Union  territory  by  non-EU 
citizens with the third country concerned and will cooperate with a view to the prosecution of 
such conduct in those countries by the competent authorities. 

Article  12:  Prescription  for  offences  affecting  the  Union's  financial  interests  –  this  is  a 
provision  applicable  to  all  offences  mentioned  above,  which  requires  the  establishment  of  a 
minimum  period  of  prescription,  as  well  as  a  provision  on  the  prescription  period  for  the 
enforcement of penalties following a final conviction.  

Article 13: Recovery – this provision clarifies that this Directive does not affect the obligation 
of  Member  States  to  ensure  recovery  of  sums  irregularly  paid  as  a  consequence  of  the 
offences  included  in  this  Directive,  also  irrespective  of  the  criminal  prescription  provision 
included in Article 12. 

Article  14:  Interaction  with  other  applicable  legal  acts  of  the  Union  –  this  is  a  provision 
which clarifies the interaction between administrative and criminal sanctions regimes. 

24 

OJ L 190, 18.7.2002, p.1. 

EN 

10 

   EN 

                                                 
Article  15:  Cooperation  between  the  Member  States  and  the  European  Commission 
(European  Anti-fraud  Office)  –  this  is  a  provision  which  closely  mirrors  the  provision  on 
cooperation between Member States and the Commission, as included in the Second protocol 
to  the  PIF  Convention.  The  inclusion  of  this  provision  is  necessary  due  to  the  repeal  of  the 
Convention and its Protocols by Article 16. 

Article  16:  Repeal  of  the  criminal  law  conventions  for  the  protection  of  the  European 
Communities'  financial  interests  –  this  is  a  provision  which  repeals  the  PIF  Convention  of 
1995 and its Protocols. 

4. 

BUDGETARY IMPLICATION 

This proposal has no immediate budgetary implications for the Union. Its aim is, however, to 
prevent  losses  caused  by  illegal  activities  affecting  the  Union's  financial  interests  by 
increasing  deterrence  and  making  enforcement  by  criminal  law  authorities  of  the  Member 
States more effective, as well as to facilitate recovery in cases where losses caused by illegal 
activities affecting the Union's financial interests have already occurred. 

EN 

11 

   EN 

2012/0193 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the fight against fraud to the Union's financial interests by means of criminal law 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 325 (4) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Court of Auditors25,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The protection of the Union's financial interests concerns not only the management of 
budget appropriations, but extends to all measures negatively affecting or threatening 
to  negatively  affect  its  assets,  and  those  of  the  Member  States  to  the  extent  they  are 
designated  to  support  or  stabilise  the  economy  or  public  finances  of  Member  States 
with relevance to Union policies.  

In  order  to  ensure  effective,  proportionate  and  dissuasive  protection  of  the  Union's 
financial interests, criminal law in the Member States should continue to complement 
the protection under administrative and civil law for the most serious types of fraud-
related  conduct  in  this  field,  whilst  avoiding  inconsistencies,  both  within  and  among 
these areas of law.  

The protection of the Union's financial interests calls for a common definition of fraud 
covering  fraudulent  conduct  with  respect  to  both  expenditure  and  revenues  at  the 
expense of the EU budget.  

Fraud  affecting  Value  Added  Tax  (VAT)  diminishes  tax  receipts  of  Member  States 
and subsequently the application of a uniform rate to Member States' VAT assessment 
base.  As  confirmed  by  the  Court  of  Justice  jurisprudence26,  there  is  a  direct  link 
between the collection of VAT revenue in compliance with the Union law applicable 
and  the  availability  to  the  Union  budget  of  the  corresponding  resources,  since  any 

25 
26 

OJ C , , p. . 
Case C-539/09 – OJ C 25/08 of 28 January 2012. 

EN 

12 

   EN 

                                                 
(5) 

(6) 

(7) 

(8) 

lacuna  in  the  collection  of  the  first  potentially  causes  a  reduction  in  the  second.  The 
Directive therefore covers revenue resulting from VAT receipts in the Member States.  

The  consideration  of  the  substantial  impact  on  the  EU's  financial  interests  resulting 
from  the  illegal  diminution  of  the  VAT-based  own  resource  and  application  of 
thresholds  contained  in  this  Directive  shall  be  read  in  line  with  the  principle  of 
proportionality,  given  the  specific  nature  and  methodology  used  for  calculating  that 
own resource, including differentiated treatment of Member States. 

The Union's financial interests can be negatively affected  where  individual tenderers 
provide information to contracting or grant awarding authorities based on information 
unduly  obtained  directly  or  indirectly  from  the  tendering  body,  with  the  aim  of 
circumventing or skewing rules applicable to a public procurement or grant procedure. 
Such conduct is very similar to fraud, but does not necessarily need to constitute a full 
fraud offence on the side of the tenderer, since the provided bid may be completely in 
line  with  all  requirements.  Bid-rigging  behaviour  between  tenderers  violates  Union 
competition  rules  and  equivalent  national  laws;  it  is  subject  to  public  enforcement 
action and sanctions throughout the Union and should remain outside the scope of this 
Directive. 

The Union money laundering legislation is fully applicable to laundering the proceeds 
of  the  criminal  offences  referred  to  in  this  Directive.  A  reference  made  to  that 
legislation should insure that the sanction regime introduced by this Directive applies 
to all criminal offences against the Union's financial interest.  

Corruption  constitutes  a  particularly  serious  threat  against  the  Union's  financial 
interests, which can in many cases also be linked to fraudulent conduct. A particular 
criminalisation  in  this  area  is  therefore  needed.  It  must  be  ensured  that  the  relevant 
offences are covered by the definition irrespective of whether conduct is in breach of 
official  duties  or  not.  As  regards 
the  offences  of  passive  corruption  and 
misappropriation, there is a need to include a definition of public officials covering all 
relevant officials, whether appointed, elected or employed on the basis of a contract, 
holding a formal office, as well as persons exercising the function of providing service 
from  government  and  other  public  bodies  to  citizens,  or  for  the  public  interest  in 
general,  without  holding  a  formal  office,  such  as  contractors  involved  in  the 
management of EU funds.  

(9) 

The Union's financial interests can be negatively affected by certain types of conduct 
of  a  public  official  which  aim  at  misappropriating  funds  or  assets  contrary  to  the 
purpose  foreseen,  and  with  the  intention  to  damage  the  Union's  financial  interests. 
There  is  therefore  a  need  to  introduce  a  precise  definition  of  offences  covering  such 
conduct.  

(10)  Some  offences  against  the  Union's  financial  interests  are  in  practice  often  closely 
related to the offences covered by Article 83 (1) of the Treaty and Union legislation 
based on that Article. Coherence with such legislation should therefore be ensured in 
the wording of the provisions.  

(11) 

In  as  much  as  the  Union's  financial  interests  can  also  be  damaged  or  threatened  by 
conduct attributable to legal persons, they should be liable for the criminal offences, as 
defined in this Directive, committed on their behalf. 

EN 

13 

   EN 

(12) 

In order to protect the Union's financial interests equivalently through measures which 
should act as a deterrent throughout the Union, Member States should further foresee 
certain minimum types and levels of sanctions when the criminal offences defined in 
this  Directive  are  committed.  The  levels  of  sanctions  should  not  go  beyond  what  is 
proportionate  for  the  offences  and  a  threshold  expressed  in  money,  under  which 
criminalisation is not necessary, should therefore be introduced.  

(13)  This  Directive  does  not  affect  the  proper  and  effective  application  of  disciplinary 
measures.  Sanctions  that  can  not  be  equated  to  criminal  penalties  can  be  taken  into 
account  in  accordance  with  national  law  when  sentencing  a  person  for  one  of  the 
offences  defined  under  this  Directive  in  individual  cases;  for  other  sanctions,  the 
principle  of  ne  bis  in  idem  should  be  fully  respected.  This  Directive  does  not 
criminalise  behaviour  which  is  not  also  subject  to  disciplinary  sanctions  or  other 
measures  concerning  a  breach  of  official  duties,  in  cases  where  such  disciplinary 
sanctions or other measures can be applied to the persons concerned. 

(14)  The sanctions for natural persons in more serious cases should foresee imprisonment 
ranges.  These  serious  cases  should  be  defined  by  referring  to  a  certain  minimum 
overall  damage,  expressed  in  money,  which  must  have  been  caused  by  the  criminal 
behaviour  to  the  Union's  and,  possibly,  other  budget.  The  introduction  of  minimum 
maximum  imprisonment  ranges  is  necessary  in  order  to  guarantee  that  the  Union's 
financial  interests  are  given  an  equivalent  protection  throughout  Europe.  The 
minimum sanction of six months ensures that a European Arrest Warrant can be issued 
and  executed  for  the  offences  listed  in  Article 2  of  the  Framework  Decision  on  the 
European Arrest Warrant, thus ensuring that judicial and law enforcement cooperation 
will be as efficient as possible. The sanctions will also serve as a strong deterrent for 
potential criminals, with effect all over Europe. More severe sanction levels should be 
imposed for cases when the offence was committed within a criminal organisation in 
the sense of Council Framework Decision 2008/841/JHA27. 

(15)  Given in particular the mobility of perpetrators and of proceeds stemming from illegal 
activities  at  the  expense  of  the  Union's  financial  interests,  as  well  as  the  complex 
cross-border investigations which this entails, all Member States should establish their 
jurisdiction and lay down rules concerning prescription periods necessary in order to 
enable them to counter these activities. 

(16) 

In order to ensure the coherence of Union law and safeguard the principle that no-one 
is punished twice for the same cause of action, there is a need to clarify the relation 
between  penalties  under  this  Directive  and  other  relevant  administrative  measures 
under  Union  law.  The  Directive  should  be  without  prejudice  to  the  application  of 
specific administrative measures, penalties and fines under Union law.  

(17)  Without prejudice to other obligations under Union law, there is a need for appropriate 
provision to be made for cooperation between Member States and the Commission to 
ensure effective action against the criminal offences defined in this Directive affecting 
the  Union’s  financial  interests,  including  exchange  of  information  between  the 
Member States and the Commission. 

27 

OJ L 300, 11.11.2008, p. 42. 

EN 

14 

   EN 

                                                 
 
(18)  The Convention for the protection of the European Communities' financial interests of 
26  July  199528  and  the  Protocols  thereto  of  27  September  199629  and  29  November 
199630 should be repealed and replaced by this Directive. 

(19)  Proper implementation of this Directive by the Member States includes the processing 
of  personal  data  among  the  competent  national  authorities,  its  exchange  between 
Member  States,  on  the  one  hand,  and  between  competent  Union  bodies  on  the  other 
hand. The processing of personal data at the national level between national competent 
authorities  should  be  regulated  by  national  law  respecting  the  Convention  of  the 
Council  of  Europe  on  the  Protection  of  Individuals  with  regard  to  Automatic 
Processing of Personal Data of 28 January 1981 and its additional Protocol (ETS no 
181).  The  exchange  of  personal  data  between  Member  States  should  meet  the 
requirements of Council Framework Decision 2008/977/JHA31. To the extent personal 
data  are  processed  by  Union  institutions,  bodies,  agencies  and  offices,  they  should 
comply  with  Regulation  (EC)  No  45/2001  of  the  European  Parliament  and  of  the 
Council  of  18  December  2000  on  the  protection  of  individuals  with  regard  to  the 
processing of personal data by the Community institutions and bodies and on the free 
movement of such data32 and with the applicable rules concerning the confidentiality 
of judicial investigations.  

(20)  The  intended  dissuasive  effect  of  the  application  of  criminal  law  penalties  requires 
particular  caution  with  regard  to  fundamental  rights.  This  Directive  respects 
fundamental rights and observes the principles recognised in particular by the Charter 
of  Fundamental  Rights  of  the  European  Union  and  notably  the  right  to  liberty  and 
security, the protection of personal data, the freedom to choose an occupation and right 
to engage in work, the freedom to conduct a business, the right to property, the right to 
an effective remedy and to a fair trial, the presumption of innocence and the right of 
defence,  the  principles  of  the  legality  and  proportionality  of  criminal  offences  and 
penalties,  as  well  as  the  prohibition  of  being  tried  or  punished  twice  in  criminal 
proceedings for the same criminal offence. This Directive seeks to ensure full respect 
for those rights and principles and must be implemented accordingly.  

(21)  This  Directive  will  apply  without  prejudice  to  the  provisions  on  the  lifting  of  the 
immunities contained in the Treaty, the Protocol on the Privileges and Immunities of 
the  European  Union,  the  Statute  of  the  Court  of  Justice  and  the  texts  implementing 
them, or similar provisions incorporated in national law. 

(22)  This  Directive  is  without  prejudice  to  the  general  rules  and  principles  of  national 
criminal  law  on  the  application  and  execution  of  sentences  in  accordance  with  the 
concrete circumstances in each individual case. 

(23)  Since  the  objective  of  this  Directive  cannot  be  sufficiently  achieved  by  the  Member 
States alone and can therefore, by reasons of the scale and effects, be better achieved 
at  Union  level,  the  Union  may  adopt  measures,  in  accordance  with  the  principle  of 

28 
29 
30 
31 
32 

OJ C 316, 27.11.1995, p. 48. 
OJ C 313, 23.10.1996, p. 1. 
OJ C 151, 20.5.1997, p. 1. 
OJ L 350, 30.12.2008, p. 60. 
OJ L 8, 12.1.2001, p. 1. 

EN 

15 

   EN 

                                                 
subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In  accordance 
with the principle of proportionality, as set out in that Article, this Directive does not 
go beyond what is necessary to achieve that objective.  

HAVE ADOPTED THIS DIRECTIVE: 

Title I: Subject matter and definition 

Article 1 
Subject matter 

This Directive establishes necessary measures in the field of prevention of and fight against 
fraud and other illegal activities affecting the Union's financial interests by defining criminal 
offences and sanctions. 

Article 2 
Definition of the Union's financial interest 

For  the  purposes  of  this  Directive,  ‘the  Union's  financial  interests’  means  all  revenues  and 
expenditures covered by, acquired through, or due to: 

(a) 

(b) 

the Union budget; 

the budgets of institutions, bodies, offices and agencies established under the Treaties 
or budgets managed and monitored by them. 

Title II: Criminal offences in the fields of prevention of and fight against fraud affecting 
the Union's financial interests 

Article 3 
Fraud affecting the Union's financial interests  

Member States shall take the necessary measures to ensure that the following conduct, when 
committed intentionally, is punishable as a criminal offence: 

(a) 

in respect of expenditure, any act or omission relating to: 

(i) 

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  Union  budget  or  budgets  managed  by  the  Union,  or  on  its 
behalf, 

(ii)  non-disclosure  of  information  in  violation  of  a  specific  obligation,  with  the 

same effect, or 

(iii) 

the misapplication of liabilities or expenditure for purposes other than those for 
which they were granted; 

EN 

16 

   EN 

(b) 

in respect of revenue, any act or omission relating to:  

1. 

2. 

3. 

(i) 

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 
Union budget or budgets managed by the Union, or on its behalf, 

(ii)  non-disclosure  of  information  in  violation  of  a  specific  obligation,  with  the 

same effect, or 

(iii)  misapplication of a legally obtained benefit, with the same effect. 

Article 4 
Fraud related criminal offences affecting the Union's financial interests 

Member  States  shall  take  the  necessary  measures  to  ensure  that  any  provision  of 
information, or failure to provide such information, to contracting or grant awarding 
entities  or  authorities  in  a  public  procurement  or  grant  procedure  involving  the 
Union's financial interests, by candidates or tenderers, or by persons responsible for 
or involved in the preparation of replies to calls for tenders or grant applications of 
such participants, when committed intentionally and with the aim of circumventing 
or skewing the application of the eligibility, exclusion, selection or award criteria, is 
punishable as a criminal offence.  

Member States shall take the necessary measures to ensure that money laundering as 
defined in Article 1 (2) of Directive 2005/60/EC of the European Parliament and of 
the Council33 involving property derived from the offences covered by this Directive 
is punishable as a criminal offence.  

Member  States  shall  take  the  necessary  measures  to  ensure  that  the  following 
conduct, when committed intentionally, is punishable as a criminal offence: 

(a) 

(b) 

the  action  of  a  public  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 a way 
which  damages  or  is  likely  to  damage  the  Union's  financial  interests  (passive 
corruption); 

the action of whosoever promises or gives, directly or through an intermediary, 
an  advantage  of  any  kind  whatsoever  to  a  public  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 a way which damages or is likely to damage 
the Union's financial interests (active corruption). 

4. 

Member States shall take the necessary measures to ensure that the intentional act by 
a public official to commit or disburse funds, or appropriate or use assets, contrary to 

33 

OJ L 309, 25.11.2005, p. 15. 

EN 

17 

   EN 

                                                 
the purpose for which they were intended and with the intent to damage the Union's 
financial interests, is punishable as a criminal offence (misappropriation). 

5. 

For the purpose of this Article, 'public official' means: 

(a) 

(b) 

any  person  exercising  a  public  service  function  for  the  Union  or  in  Member 
States  or  third  countries  by  holding  a  legislative,  administrative  or  judicial 
office; 

any  other  person  exercising  a  public  service  function  for  the  Union  or  in 
Member  States  or  third  countries,  not  holding  such  an  office,  participating  in 
the management of or decisions concerning the Union's financial interests.  

Title III: General provisions relating to the criminal offences in the fields of prevention 
of and fight against fraud affecting the Union's financial interests  

1. 

2. 

1. 

2. 

3. 

Article 5 
Incitement, aiding and abetting, attempt 

Member  States  shall  take  the  necessary  measures  to  ensure  that  inciting,  aiding  or 
abetting  the  criminal  offences  referred  to  in  Title  II  is  punishable  as  a  criminal 
offence.  

Member States shall take the necessary measures to ensure that an attempt to commit 
the criminal offence referred to in Article 3 or in Article 4, paragraph 4, is punishable 
as a criminal offence. 

Article 6 
 Liability of legal persons  

Member States shall take the necessary measures to ensure that legal persons can be 
held liable for any of the criminal offences referred to in Title II committed for their 
benefit  by  any  person,  acting  either  individually  or  as  part  of  an  organ  of  the  legal 
person, and having a leading position within the legal person, based on:  

(a) 

a power of representation of the legal person;  

(b) 

an authority to take decisions on behalf of the legal person; or  

(c) 

an authority to exercise control within the legal person.  

Member  States  shall  also  take  the  necessary  measures  to  ensure  that  legal  persons 
can be held liable where the lack of supervision or control by a person referred to in 
paragraph  1  has  made  possible  the  commission,  of  any  of  the  criminal  offences 
referred  to  in  Title  II  for  the  benefit  of  that  legal  person  by  a  person  under  its 
authority.  

Liability  of  a  legal  person  under  paragraphs  1  and  2  shall  not  exclude  criminal 
proceedings  against  natural  persons  who  are  perpetrators  of  the  criminal  offences 
referred to in Title II or criminally liable under Article 5. 

EN 

18 

   EN 

4. 

1. 

2. 

3. 

4. 

1. 

For the  purpose  of this Directive,  ‘legal  person’  shall mean any entity having legal 
personality  under  the  applicable  law,  except  for  States  or  public  bodies  in  the 
exercise of State authority and for public international organisations. 

Article 7 
Penalties for natural persons  

As  regards  natural  persons,  Member  States  shall  ensure  that  the  criminal  offences 
referred to in Title II shall be punishable by effective, proportionate and dissuasive 
criminal penalties, including fines and imprisonment as specified in Article 8.  

In  cases  of  minor  offences  involving  damages  of  less  than  EUR  10,000  and 
advantages  of  less  than  EUR  10,000  and  not  involving  particularly  serious 
circumstances, Member States may provide instead for other than criminal penalties. 

Paragraph 1 shall be without prejudice to the exercise of disciplinary powers by the 
competent authorities against public officials.  

Member States shall ensure that sanctions of another nature, that cannot be equated 
to criminal penalties, and which are already imposed on the same person for the same 
conduct,  can  be  taken  into  account  when  sentencing  that  person  for  a  criminal 
offence referred to in Title II. 

Article 8 
Imprisonment thresholds  

Member States shall take the necessary measures to ensure that criminal offences as 
referred to in Articles 3 and 4, paragraphs 1 and 4, involving an advantage or damage 
of at least EUR 100,000 shall be punishable by 

(a) 

a minimum penalty of at least 6 months imprisonment ; 

(b) 

a maximum penalty of at least 5 years of imprisonment.  

Member States shall take the necessary measures to ensure that criminal offences as 
referred to in Article 4, paragraphs 2 and 3, involving an advantage or damage of at 
least EUR 30,000 shall be punishable by: 

(a) 

a minimum penalty of at least 6 months imprisonment; 

(b) 

a maximum penalty of at least 5 years of imprisonment.  

2. 

Member States shall take the necessary measures to ensure that the criminal offences 
referred to in Title II shall be punishable by a maximum penalty of at least 10 years 
of imprisonment where the offence was committed within a criminal organisation in 
the sense of Framework Decision 2008/841.  

EN 

19 

   EN 

 
 
Article 9 
Minimum sanction types for legal persons 

Member  States  shall  take  the  necessary  measures  to  ensure  that  a  legal  person  held  liable 
pursuant  to  Article  6  is  subject  to  effective,  proportionate  and  dissuasive  sanctions,  which 
shall include criminal or non-criminal fines and may include other sanctions, such as:  

(a) 

(b) 

(c) 

(d) 

(e) 

exclusion from entitlement to public benefits or aid;  

temporary or permanent disqualification from the practice of commercial activities;  

placing under judicial supervision;  

judicial winding-up;  

temporary  or  permanent  closure  of  establishments  which  have  been  used  for 
committing the offence.  

Article 10 
Freezing and confiscation 

Member States shall ensure freezing and confiscation of proceeds and instrumentalities from 
the  offences  referred  to  in  Title  II  in  accordance  with  Directive  …/…/...  [of  the  European 
Parliament  and  of  the  Council  on  the  freezing  and  confiscation  of  proceeds  of  crime  in  the 
European Union]34. 

Article 11 
Jurisdiction 

1. 

Member States shall take the necessary measures to establish their jurisdiction over 
the criminal offences referred to in Title II where: 

(a) 

the offence is committed in whole or in part within their territory; or 

(b) 

the offender is one of their nationals. 

2. 

3. 

For  the  case  referred  to  in  point  (b)  of  paragraph  1,  Member  States  shall  take  the 
necessary  measures  to  ensure  that  their  jurisdiction  is  not  subordinated  to  the 
condition  that  the  prosecution  can  only  be  initiated  following  a  report  made  by  the 
victim  in  the  place  where  the  offence  was  committed,  or  a  denunciation  from  the 
State of the place where the offence was committed. 

Member  States  shall  ensure  that  their  jurisdiction  includes  situations  where  an 
offence  is  committed  by  means  of  information  and  communication  technology 
accessed from their territory.  

34 

To be adopted following proposal COM(2012) 85. 

EN 

20 

   EN 

                                                 
Article 12 
Prescription for offences affecting the Union's financial interests 

1. 

2. 

3. 

Member  States  shall  ensure  a  prescription  period  within  which  the  investigation, 
prosecution,  trial  and  judicial  decision  on  offences  referred  to  in  Title  II,  and  in 
Article 5, remain possible, of at least five years from the time when the offence was 
committed. 

Member  States  shall  ensure  that  the  prescription  period  shall  be  interrupted  and 
commence  anew  upon  any  act  of  a  competent  national  authority,  including  in 
particular  the  effective  beginning  of  investigation  or  prosecution,  until  at  least  ten 
years from the time when the offence was committed.  

Member  States  shall  take  the  necessary  measures  to  enable  the  enforcement  of  a 
penalty  imposed  following  a  final  conviction  for  a  criminal  offence  referred  to  in 
Title II, and in Article 5, for a sufficient period of time that shall not be less than 10 
years from the time of the final conviction.  

Article 13 
Recovery 

This Directive shall be without prejudice to the recovery of sums unduly paid in the context of 
the commission of the criminal offences referred to in Title II.  

Article 14 
Interaction with other applicable legal acts of the Union 

The application of administrative measures, penalties and fines as laid down in Union law, in 
particular those within the meaning of Articles 4 and 5 of Council Regulation No 2988/9535, 
or in national law adopted in compliance with a specific obligation under Union law, shall be 
without prejudice to this Directive. Member States shall ensure that any criminal proceedings 
initiated  on  the  basis  of  national  provisions  implementing  this  Directive  shall  not  affect  the 
proper and effective application of administrative measures, penalties and fines that cannot be 
equated to criminal proceedings, laid down in Union law or national implementing provisions. 

Title IV: Final provisions  

Article 15 
Cooperation between the Member States and the European Commission (European Anti-
Fraud Office)  

The Member States and the Commission shall cooperate with each other in the fight 
against the criminal offences referred to in Title II. To that end the Commission shall 

Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European 
Communities' financial interest, OJ L 312, 23.12.1995, p. 1. 

1. 

35 

EN 

21 

   EN 

                                                 
lend such technical and operational assistance as the competent national authorities 
may need to facilitate coordination of their investigations. 

2. 

The competent authorities in the Member States may exchange information with the 
Commission  so  as  to  make  it  easier  to  establish  the  facts  and  to  ensure  effective 
action against the criminal offences referred to in Title II. The Commission and the 
competent  national  authorities  shall  take  account  in  each  specific  case  of  the 
requirements  of  investigation  secrecy  and  data  protection.  To  that  end,  a  Member 
State,  when  supplying  information  to  the  Commission,  may  set  specific  conditions 
covering the use of information, whether by the Commission or by another Member 
State to which that information may be passed. 

Article 16 
Repeal of the criminal law conventions for the protection of the European Communities' 
financial interests 

The Convention on the protection of the European Communities' financial interests of 26 July 
1995, including the Protocols thereto of 27 September 1996, of 29 November 1996 and of 19 
June  1997,  shall  be  repealed  with  effect  from  [day  of  application  under  Art.  17  (1)  second 
sub-paragraph].  

Article 17 
Transposition 

1. 

Member States shall adopt and publish, by … at the latest, the laws, regulations and 
administrative  provisions  necessary  to  comply  with  this  Directive.  They  shall 
forthwith communicate to the Commission the text of those provisions. 

They shall apply those provisions from … . 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

Article 18 
Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

EN 

22 

   EN 

Article 19 
Addressees 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

EN 

23 

   EN