REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL assessing the extent to which the Member States have taken the necessary measures in order to comply with Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector
Date: 2019-07-26
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: application of EU law, corruption, criminal law, criminal liability, fight against crime, judicial cooperation in criminal matters in the EU, legal person, penalty, private sector

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 26.7.2019  COM(2019) 355 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL assessing the extent to which the Member States have taken the necessary measures in order to comply with Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector  
 
 
INTRODUCTION 

1.1. 

Background 

1.1.1. Scope of the Framework Decision and of the report 

Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the 
private sector1 (hereinafter the Framework Decision) aims to ensure that: 

  both  active  and  passive  corruption  in  the  private  sector  are  defined  as  a  criminal 

offence in all EU Member States;  
legal  persons  (i.e.  business  entities,  non-governmental  organisations  or  public 
organisations) may also be held responsible for such offences; and 
these offences incur effective, proportionate and dissuasive penalties.  

 

 

Article 2 applies to ‘business activities within profit and non-profit entities’, which limits the 
scope  of  the  Framework  Decision  to  corruption  committed  by  individuals  from  the  private 
sector. 

Under the Framework Decision, Member States must criminalise two types of conduct: 

– 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  requires  Member  States  to  take  the  necessary 
measures to ensure compliance before 22 July 2005. Article 9(2) requires them to transmit to 
the  Council  and  the  Commission  the  text  of  the  provisions  that  transpose  the  obligations 
imposed on them under the Framework Decision into national law. 

Although  initially  bound  by  the  Framework  Decision,  on  1  September  2014  the  United 
Kingdom opted out of transposing it into national law on the basis of Article 10(4) of Protocol 
36 annexed to the Treaties2. The current report therefore does not cover the United Kingdom. 

1.1.2. Purpose of this implementation report 

The  Lisbon  Treaty  introduced  significant  changes  in  the  areas  of  freedom,  security  and 
justice. On 1 December 2014, the five-year transitional period provided for in Article 10 (1) 
of Protocol 36 annexed to the Treaties came to an end. This lifted the limitations to judicial 
control by the Court of Justice of the European Union and to the Commission’s enforcement 
powers in the areas of police cooperation and judicial cooperation in criminal matters. These 
major changes have contributed to the  efficiency of freedom, security and justice  in the EU 
and  have  strengthened  mutual  trust  between  the  Member  States  and  the  confidence  of  EU 
citizens. 

Since the  Commission's  last  implementation  reports in  20073 and  20114, a number of  major 
criminal  law  reforms  have  taken  place  in  some  Member  States.  Furthermore,  the 

1  OJ L 192, 31.7.2003, p. 54-56. 
2  OJ C 115, 9.5.2008, p 322-326. 
3  COM(2007)  328  final.  In  2007  the  Commission  assessed  that  only  two  Member  States  had  correctly 

transposed its provisions into their national legislation. 

4  COM(2011) 309 final. This report concluded that transposition was still not satisfactory despite some partial 
progress.  The  main  problem  was  the  incomplete  transposition  of  some  elements  of  Articles  2  and  5.  As  a 
result,  the  Commission  called  upon  Member  States  to  adopt  without  delay  all  the  necessary  measures  to 
correct the situation. The Commission also invited Member States to notify measures adopted after the last 
notification. 

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criminalisation  of  active  and  passive  bribery,  including  in  the  private  sector,  is  mandatory 
under  the  Council  of  Europe’s  Criminal  Law  Convention  of  Corruption  and  the  United 
Nations  Convention  against  Corruption  (UNCAC)5,  to  which  all  Member  States  are  parties. 
These  developments  have  prompted  Member  States  to  further  align  national  implementing 
measures  to  international  and  European  standards.  This  third  implementation  report  takes 
stock of new developments and informs the co-legislators and the general public of Member 
States'  progress  in  this  area.  The  findings  of  this  report  are  without  prejudice  to  the 
Commission's enforcement powers under the Treaties. 

1.1.3. Information gathering and methodology 

On  15 December  2014,  the  Commission  invited  all  Member  State  authorities  to  notify  the 
Commission  via  the  MNE  database  (Mesures  Nationales  d’Exécution)  the  national 
implementation measures for the instruments under the former third pillar by 1 March 2015. 
In  2018,  the  Commission  asked  Member  States  to  provide  updated  information  on  the 
implementation  of  the  Framework  Decision.  The  description  and  analysis  in  this  report  are 
based on the information provided by the Member States by 1 August 2018.  

In  addition,  in  2014,  the  Commission  gathered  official  statistical  data  on  the  treatment  of 
corruption cases in various stages of the criminal procedure in Member States6. Through the 
expert group on policy needs for data on crime and the network of national contact points on 
corruption,  responses  were  received  from  26  Member  States  for  the  reference  years  2011, 
2012 and 2013. In 2018, the data collection effort was extended to the reference years 2014, 
2015 and 2016. Of the 22 Member States that submitted data,7 only 78 were able to provide 
data  on  ‘final  convictions  for  bribery  in  the  private  sector’  for  any  of  the  reference  years 
between  2014  and  2016.  While  the  data  are  subject  to  some  inherent  limitations,  and  they 
should be interpreted with caution also with careful consideration of the methodological notes 
provided9,  they  are  useful  to  illustrate  the  enforcement  of  the  offences  in  the  Framework 
Decision.  

ANALYSIS 

The following section presents the analysis in detail, taking an overall view of the status of the 
transposition of the Framework Decision in national legislation. The national transposition in 
every Member State was assessed against only one criteria, namely whether the provisions of 
the Framework Decision have been covered in national legislation.  

5  European Treaty Series — No 173. 

https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/090000168007f3f5 
https://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf 

6   http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetailDoc&id=21215&no=2 
7   BE, BG, CZ, DE, ES, HR, IE, IT, CY, LV, LT, LU, HU, RO, AT, PL, PT, SK, SI, FI, SE, UK. 
8   BE, HR, IT, LU, LV, PL and SI 
9  References to legal provisions, both in national legislation and the UN Convention against Corruption, are as 
submitted by Member States. The framework of offences is based on Articles 15-22 UNCAC in an effort to 
aid future comparability, and to better understand the divergences between definitions and recording systems. 
The  inclusion  of  data  under  one  category  or  another  does  not  imply  a  judgement  on  the  part  of  the 
Commission about the scope of national provisions in relation to the categories for which we requested data. 
A detailed methodological discussion is available here: 
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/organized-crime-and-human-
trafficking/corruption/docs/official_corruption_statistics_2011_2013_jan16_en.pdf 

. 

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The  report  concentrates  on  Articles 2  to  7  of  the  Framework  Decision.  It  does  not  cover 
Articles 8  to  11  (ie.  provisions  on  repeal,  implementation,  territorial  application,  entry  into 
force) as they do not require national transposition. 

1.1. 

Article 2 — Active and passive corruption in the private sector 

1.1.1.  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 
Article 2(1) includes business activities in both profit and non-profit entities. 

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

Article 2(1)(a) — active corruption 

Article 2(1)(b) — passive corruption 

‘Promising, offering or giving’ 

‘Requesting  or  receiving  or  accepting  the 

‘Directly or through an intermediary’ 

promise of’ 

‘Directly or through an intermediary’ 

‘A  person  who  in  any  capacity  directs  or 

‘While in any capacity directing or working’ 

works’ 

‘For a private-sector entity’ 

‘An undue advantage of any kind’ 

‘For that person or for a third party’ 

‘For a private-sector entity’ 

‘An undue advantage of any kind’ 

‘For oneself or for a third party’ 

‘Perform or refrain from performing any act, 

‘Perform or refrain from performing any act, 

in breach of one’s duties’ 

in breach of that person’s duties’ 

In the above table, only the first listed elements (‘promising, offering or giving’/‘requesting or 
receiving or accepting the promise of’) differ considerably for active and passive corruption. 
Therefore,  Member  States  generally  transposed  the  six  remaining  elements  in  their  national 
legislation  with  similar  wording.  These  six  constitutive  elements  of  active  and  passive 
corruption are therefore jointly considered below. 

Detailed analysis 

1.1.1.1.  Article 2(1)(a) — active corruption — ‘promising, offering or giving’ 

The  three  actions  of  the  offender  are  slightly  different,  although  overlaps  are  possible. 
‘Promising’ may, for example, cover situations where the briber commits to giving an undue 
advantage later or where there is an agreement between the briber and the bribed person that 
the  briber  will  give  the  undue  advantage  later.  ‘Offering’  may  cover  situations  where  the 
briber shows readiness to give the undue advantage at any moment. Finally, ‘giving’ may also 
include situations where the briber transfers the undue advantage. 

19 Member States (BG, CZ, DK, DE, EL, ES, FR, HR, IT, CY, LT, NL, AT, PT, RO, SK, SI, 
FI and SE) have transposed almost literally the three terms ‘promising, offering or giving’ in 
their legislation. 

In  addition, in  seven  Member  States  (BE,  EE,  IE,  LU,  HU,  MT  and  PL)  under  the  relevant 
national jurisprudence the transposing terms have an equivalent meaning. In EE, HU, IE and 
PL,  ‘offering  a  bribe’  is  not  mentioned  in  the  current  definition  of  active  bribery  but  is 
covered by the jurisprudence. In BE and LU, the Criminal Code refers to ‘proposing an offer, 

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a  promise  or  an  advantage  of  any  nature’10.  In MT,  the  person  who  ‘bribes’  is  liable  as  an 
accomplice. The person who attempts to induce the other person to commit the crime is still 
subject to punishment even if their attempt is unsuccessful11. 

In LV ‘promising a bribe’ is not explicitly covered.  

Article 2(1) (b) — passive corruption — ‘requesting or receiving or accepting the promise of’ 

In  the  case  of  a  passive  corruption  offence,  the  material  elements  include  requesting  or 
receiving  an  undue  advantage  or  accepting  the  promise  thereof.  ‘Requesting’  may,  for 
example, refer to a unilateral act, i.e. it is immaterial whether the request was actually acted 
upon.  ‘Receiving’  may,  for  example,  mean  the  actual  taking  of  the  benefit12.  ‘Accepting  the 
promise’ of an undue advantage may refer to situations where the bribed person agrees to take 
the advantage later. 

18 Member States (BE, BG, DE, EL, HR, LT, LU, HU, MT, AT, PT, SK, FI, IT, RO, NL, PL 
and SE) have transposed almost literally the three terms ‘requesting or receiving or accepting 
the promise of’ in their legislation. 

In six Member States (CZ, DK, EE, FR, IE and SI), while the transposing terms used in the 
Criminal  Code  is  different,  their  meaning  is  equivalent  under  the  relevant  jurisprudence.  In 
addition,  in  LV,  ‘accepting  the  promise  of  a  bribe’  is  not  expressis  verbis  covered,  while 
‘accepting  the  offer  of  a  bribe’  is  covered.  In  CZ,  ‘accepting  the  promise  of  an  undue 
advantage’  is  not  explicitly  covered  by  the  current  definition  of  passive  corruption,  which 
refers to ‘agrees to accept any gift or consideration as an incentive or remuneration’. 

In ES, the element of ‘accepting the promise of a bribe’ is not explicitly covered, since the 
law only refers to accepting ‘an unjustified benefit or advantage’. 

Article 2(1) (a)-(b): the remaining five constituting elements 

‘Directly or through an intermediary’ 

Irrespective of whether the recipient or the beneficiary of the undue advantage is the person 
receiving  the  bribe  or  a  third  party,  Article 2  provides  that  the  criminalisation  should  also 
cover intermediaries. 

In 14 Member States, namely BE, CZ, ES, EL, FR, HR, CY, LV, LT, LU, MT, PT, RO and 
SK, this aspect is transposed literally. 
In  addition,  in  12  Member  States  (BG,  DE,  DK,  IE,  IT,  HU,  NL  AT,  PL,  FI,  SI  and  SE) 
‘directly or through intermediary’ is not explicitly covered. In EE, this aspect is not covered 
in the definition of active bribery, while it is reflected in the definition of passive bribery. The 
information  received  from  the  Estonian  authorities  was  not  conclusive  on  whether  some 
elements included only in the definition of passive bribery apply also to active bribery. 

However,  without  mentioning  ‘directly  or  through  intermediary’,  national  laws  imply  that 
both cases are covered, therefore all Member States address it.  

‘A  person  who  in  any  capacity  directs  or  works’  /  ‘While  in  any  capacity  directing  or 

working’ 

12 Member States (BG, BE, DE, EL, ES, FR, LV, LU, HU, MT, PL and FI) transposed this 
element literally. 

10  `proposer une offre, une promesse ou un avantage de toute nature’. 
11  Articles 115, 120 and 121 of the Criminal Code. 
12  According to paras. 41-42 of the Explanatory report to the Criminal Law Convention. 

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In addition, 10 Member States (CZ, DK, HR, LT, NL, AT, PT, SE, SK and SI) transposed it 
with slight variations. 

In HR, NL and AT, the legislation does not refer to the function of ‘directing’ but simply to 
‘working’. In PT, the definition does not refer either to the function of ‘directing’, but it refers 
to  ‘private  sector  employees’  for  passive  corruption  and  to  ‘any  person’13  for  active 
corruption.  In  LT  bribery  in  the  private  sector  is  only  criminalised  in  the  case  of  people 
holding  ‘appropriate  administrative  powers’,  or  ‘entitled  to  act  on  behalf  of  an  agency, 
enterprise  or  organisation’  or  ‘exercise  public  functions’.  LT  argues  that  the  duties  of 
directing or working are clarified by the jurisprudence of the Supreme Court. In CZ and SK 
there is no explicit limitation to directing or working, as the wording seems to cover all types 
of relations with or links to a private company. In SE, the legislation refers to ‘a person who 
is a worker or has a mandate’ (passive corruption) or to any ‘person’ (active corruption). This 
seems  to  cover  both  directing  and  working  aspects.  In  DK  and  SI,  since  the  law  does  not 
specify  the  link  between  the  perpetrator  and  the  legal  person,  it  is  assumed  that  all  these 
elements are covered. 

As  for  EE,  the  aspect  of  ‘working  or  directing’  is  not  covered  in  the  definition  of  active 
bribery, while the definition of passive bribery refers to them more broadly, i.e ‘by a person 
competent  to  engage  in  economic  activities’.  The  information  received  from  the  Estonian 
authorities was not conclusive on whether some elements included in the definition of passive 
bribery also apply to active bribery. 

In  RO,  ‘directing  or  working’  is  not  explicitly  mentioned  in  the  definition  of  active  and 
passive corruption. The text refers to ‘who, on a permanent or temporary basis, fulfils a duty 
or a task in so far as they take part in or can influence decision making’. This seems to cover 
management functions, but not necessarily all types of working relationships. In IE and CY, 
the acts of active and passive corruption are limited to the agent’s conduct ‘in relation to his 
principle’s affairs or business’, which seems to narrow down the definition. 

In IT, active and passive corruption only refer to executive roles, such as managers, directors 
general,  directors  in  charge  of  the  drafting  of  balance  sheets,  mayors  and  liquidators  or 
whoever  ‘exercises  various  management  functions’14,  leaving  out  of  the  personal  scope 
persons without an executive role.  

‘For a private-sector entity’ 

In  10  Member  States  (BG,  CZ,  FR,  EE,  EL,  IT,  LV,  HU,  MT  and  PT)  this  element  is 
explicitly  addressed  in  the  national  transposition  measures.  However,  it  is  not  explicitly 
covered in 14 Member States (BE, DK, ES, HR, IE, CY, LT, LU, NL, PL, RO, SK, SI and 
SE) as in these countries the offence usually refers to any person (‘whoever’). Nonetheless, as 
long as such reference is broad, this is in line with the Framework Decision. 

In  DE,  AT  and  FI,  the  provision's  scope  is  limited  to  businesses/companies15,  which  are 
narrower concepts than private sector entities. ES has limited the scope in a similar manner.16. 
On this issue, see also Article 2 (2) below. 

13  ‘whoever’. 
14  ‘esercita funzioni direttivi diverse’. 
15  ‘Unternehmen/elinkein’. 
16   ‘empresa mercantile/sociedad’ 

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‘An undue advantage of any kind’ 

Undue advantage may be an economic one but may also be non-material in nature. What is 
important  is  that  the  offender  or  any  other  person,  for  instance  a  relative,  is  put  in  a  better 
position than he/she was before the offence was committed and that he/she is not entitled to 
the  benefit.  This  includes  for  instance,  money,  holidays,  loans,  food  and  drinks,  a  case 
handled at an accelerated pace, better career prospects, etc. ‘Undue’ should be interpreted as 
something  that  the  recipient  is  not  lawfully  entitled  to  accept  or  receive.  This  interpretation 
excludes  advantages  permitted  by  the  law  or  by  administrative  rules  from  the  scope  of  the 
offence.  

19 Member States (BE, BG, DE, DK, ES, EL, CY, LT, LV, LU, HU, MT, AT, PL, PT, RO, 
FI, IT and SE) transposed this element literally. 

Some other Member States transposed it with slight variations. 

In  NL,  the  implementing  provision  does  not  refer  to  an  ‘undue  advantage’,  but  rather  to  a 
‘gift’,  ‘service’  or  ‘promise’.  In  CY,  the  ‘undue  advantage’  is  transposed  as  ‘any  gift,  or 
consideration as an inducement or reward’. FR legislation refers to ‘any advantage’, which 
has a slightly broader meaning, while in HR the law mentions a ‘favour’. In SI, the law refers 
to ‘an unauthorised award, gift or other property benefit.’ In IE the passive bribery offence 
refers  to  the  terms  ‘gift,  consideration  or  advantage’,  while  the  active  bribery  offence  only 
refers to ‘gift or consideration’. 

SK does not specifically address the offering of any undue advantage other than a bribe. The 
term ‘advantage’ is not used in the Slovak Criminal Code's provisions on bribery, but rather 
the  term  ‘bribe’  is  used17:  ‘a  bribe  shall  mean  a  thing  or  the  transfer  of  property  or  of 
anything  of  non-material  nature  to  which  no  legal  entitlement  exits’.  In  CZ,  ‘an  undue 
advantage of any kind’ is covered by the definition of ‘bribe’, which is defined as ‘an undue 
advantage consisting of direct material enrichment or other advantage… to which he/she is 
not entitled’18.  

In EE, in the case of passive bribery, the undue advantage is referred to as ‘property or other 
benefits’  while  for  active  bribery,  the  law  refers  to  a  bribe,  which  is  a  limited  concept 
compared to the undue advantage. Based on the available information, it is not clear whether 
some elements included in the definition of passive bribery also apply to active bribery. 

‘For that person / oneself  or for a third party’ 

In 22 Member States this element is transposed literally (BE, BG, CZ, DE, DK ES, EL, FR, 
HU, HR, CY, LT, LV, LU, MT, AT, PT, SK, SI, FI, IE and SE). 

In  PL,  the  aspect  related  to  a  third  party  may  be  covered  only  indirectly,  to  the  extent  it 
corresponds to ‘in favour of a buyer, or a recipient of goods, services or other performance’.  

This element is not explicitly covered in two Member States (NL and RO). In a further two 
(EE and IT) it is not covered as far as the definition of active bribery is concerned. 

17  Defined in Section 131, paragraph 3. ‘A thing’ is defined in Section 130, paragraphs 1 and 2. 
18  Section 334, para.1 of the Criminal Code. 

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‘Perform or refrain from performing any act, in breach of that person’s / one’s duties’ 

In  13  Member  States  (BE,  BG,  DE,  DK,  FR,  EL,  IE,  IT,  CY,  LV,  LU,  AT  and  SK)  this 
element is transposed literally by the national legislation. 

Seven Member States (LT, LV, HU, MT, PT, RO and SE) transposed this element with slight 
variations. In RO this aspect is only reflected in the definition of passive bribery. In LT, it is 
transposed as ‘lawful or unlawful action or inaction (…) in exercising his/her powers’. In PT, 
the  notion  of  ‘breach  of  duty’  only  appears  in  the  passive  bribery  definition,  but  not  in  the 
active one. In LV, the component ‘perform or refrain from performing any act, in breach of 
that  person’s  duties’  is  transposed  more  broadly  in  that  performing  or  refraining  from 
performing an act has to happen ‘using his or her authority’ without necessarily involving a 
specific  breach.  In  HU,  MT,  and  SE,  the  legislation  does  not  refer  to  ‘should  perform  or 
refrain  from  performing’.  It  implies  that  the  omission  of  these  elements  does  not  have  an 
impact on ‘in breach of that person’s duties’ which set out is in the Criminal Code — it does 
not make any difference whether these words are implicit or explicit. 

In  EE,  this  aspect  is  referred  to  as  ‘abuse  of  his  or  her  competence’  in  passive  corruption, 
while it is not mentioned at all in the definition of active corruption. The information received 
from the Estonian authorities was not conclusive as to whether some elements included in the 
definition of passive bribery also apply to active bribery. 

In CZ, the Criminal Code does not limit the applicability of the provisions on private sector 
bribery to cases in which there has been a breach of duty. 

In ES, the sentence ‘in breach of that person’s duties’ was removed from the law. Moreover, 
the  aspect  of  ‘perform  or  refrain  from  performing  any  act’  is  not  reflected  in  the  current 
wording.  The  article's  scope  is  also  limited  (‘in  the  purchase  or  sale  of  goods,  or  in  the 
contracting of services or commercial relations’). 

In  FI,  and  HR,  breach  of  duty  is  not  specified,  and  instead  of  ‘perform  or  refrain  from 
performing  an  act’,  the  text  refers  to  favouring  a  briber  or  another  person.  In  SI,  the  law 
mentions  neglecting  the  interest  of  the  organisation  or  other  individual  or  causing  damage 
when concluding or retaining a contract. In the Netherlands, the element of ‘breach of duty’ is 
transposed  as  ‘in  violation  of  good  faith’,  which  includes  ‘concealing  the  acceptance  or 
request of the gift or promise or service from his employer or principal’19.  

In PL, the notion of ‘breach of duty’ is transposed as ‘failing to fulfil a duty assigned to such 
person  that  may  inflict  material  damage  on  such  unit  or  may  constitute  an  act  of  unfair 
competition or  inadmissible  act  of  preference  in  favour  of  a  buyer,  or  a  recipient  of  goods, 
services or other performance’. 

Further limitations  

Unlike in the 25 other EU Member States, in BE and LU there is a limitation to cases where 
the breach of duty was not known by the superior, in both passive and active bribery offences.  

Article 2(2) 

Article 2(2) establishes that Article 2(1) applies to business activities in both profit and non-
profit entities.  

Most Member States explicitly refer to the inclusion of non-profit entities in their legislation, 
and others have worded their legislation in such a broad way that non-profit entities are not 
excluded (BE, BG, CZ, DK, EE, FR, EL, HR, IE, IT, CY, LV, LT, LU, HU, NL, MT, PL, PT, 
RO, SK, SI and SE). 

19  Section 328ter of the Criminal Code. 

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In four Member States (DE, FI, AT and ES) the scope of the offence is different. In DE, FI, 
AT,  the  provision  is  limited  to  ‘businesses/companies’20,  which  is  narrower  than  private 
sector entities. ES limited the scope in a similar manner. Limiting the scope of the relevant 
criminal offences to businesses in some cases excludes criminal responsibility of individuals 
bribing  on  behalf  of,  or  in  favour  of  non-profit  organisations.  Non-profit  organisation  are 
part  of  the  private  sector,  they  may  be  for  instance  foundations,  associations,  sport  clubs, 
church  organisations  and  charities.  Non-profit  organisations  often  engage  in  business 
activities,  but  they  typically  use  the  revenues  to  further  achieve  their  ultimate  social, 
educational  or  charity  objectives,  rather  than  distributing  the  income  to  the  organisation’s 
shareholders, leaders, or members.  

Furthermore,  for  the  activities  covered  by  the  Framework  Decision,  under  Article 2(3), 
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. Such declarations 
were  made  by  DE,  IT,  AT  and  PL.  The  declarations  were  valid  until  22 July  2010. 
(Article 2(4)).  Since  the  Council  did  not  take  a  decision  to  extend  their  validity,  the 
Commission considers that they are no longer valid. 

In DE, the current wording of section 299 of the Criminal Code may exclude some situations 
that  private sector entities are involved in,  or  confronted  with in  practice and which are not 
strictly related to procurement transactions. In comparison, Article 2 refers to bribery ‘in the 
course of business activity’, which encompasses the broadest range of activities. 

As for ES, active and passive corruption is limited to ‘the purchase or sale of goods, or in the 
contracting of services or commercial relations’. 

In SI the offence contains a possible limitation: ‘when concluding or retaining a contract’. 

Article 3 — Instigation, aiding and abetting 

Article 3  focuses  on  participation  in  corruption  through  instigation,  aiding  and  abetting. 
However, it does not address attempted offences21. 

In  25  Member  States  (BE,  BG,  CZ,  DE,  DK,  ES,  EE,  EL,  FR,  HR,  CY,  LT,  LV,  LU,  HU, 
MT, NL, AT, PL, PT, RO, SK, SI, FI and SE) the national laws address instigation, aiding and 
abetting. IE explained that while instigation was not specifically covered by its national law, it 
addressed by case law. 

IT considers that these concepts are covered by articles in the Criminal Code under the notion 
of ‘favouring’22. However, the information received in that respect was not conclusive. 

Article 4 — Penalties and other sanctions 

Article 4  (1)  requires  that  private  sector  corruption  offences  be  punishable  by  criminal 
penalties which are ‘effective, proportionate and dissuasive’. The national laws of all Member 
States address Article 4(1). 

Article 4(2) requires Member States to ensure that passive and active corruption in the private 
sector  is  punishable  by  a  maximum  penalty  of  at  least  1-3  years  of  imprisonment.  The 
Commission  concludes  that  the  threshold  for  penalties  is  transposed  in  all  Member  States’ 
legislation. 

20  Unternehmen/elinkeino. 
21  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’. 

22  ‘Favoreggiamento.’ 

8 

 
 
 
 
                                                            
Article 4(3) requires Member States to prohibit temporarily, in certain circumstances, natural 
persons from pursuing the particular or comparable business activity in a similar position or 
capacity. This is addressed by national law in 24 Member States (BE, BG, CZ, DE, DK, EE, 
EL,  FR,  HR,  IE,  IT,  LV,  LT,  LU,  HU,  MT,  NL,  AT,  PT,  PL,  RO,  FI,  SK  and  SI).  SE 
explained  that  these  measures  can  be  taken  based  on  the  Act  on  Disqualification  from 
Commercial Activities, but did not provide a more detailed explanation. 

The information provided by CY and ES was not sufficient to conclude whether or not their 
national laws address Article 4(3). 

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 may decide between criminal and administrative liability. 

In  accordance  with  Article 5(1),  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  within  that  legal 
person. 

Under  Article 5(2),  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. 

The  liability  of  legal  persons  does  not  exclude criminal  proceedings against  natural  persons 
involved as perpetrators, instigators or accessories (Article 5(3)). 

Currently, 16 Member States (BE, DK, DE, ES, EL, FR, CY, LV, LT, LU, HU, AT, PL, FI, 
SK  and  SI)  have  legislation  in  place  that  transposes  this  provision.  Some  Member  States  use 
criminal  measures,  while  others  use  administrative  measures  against  legal  persons.  Both 
approaches are equally acceptable under the Framework Decision. In IE, the liability of legal 
persons is based on case law. IE did not provide sufficient information to be able to assess the 
transposition of Articles 5(2) and 5(3). 

In PT, the liability of legal persons and equivalent entities is excluded if the perpetrator acted 
against the specific orders or instructions of those entitled to issue them. In HR, the liability of 
legal persons is conditional on two alternative criteria, out of which one refers to an ‘illegal 
gain’  for  the  legal  person  or  for  the  third  person.  In  EE,  the  legal  person  is  exempted  of 
criminal liability if an act committed by a competent representative thereof was  ‘inevitable’ 
for  the  legal  person.  IE  refers  to  common  law  and  the  relevant  jurisprudence,  according  to 
which a legal person is liable for the acts of its ‘controlling officers’. 

Under Article 5(2), Member States have to ensure that a legal person can also be held liable in 
cases where the commission of the offence was made possible because of lack of supervision 
or control. In eight Member States, there is not enough information to assess whether the lack 
of supervision or control is covered under national law (BG, CZ, EE, IT, MT, NL and PT), or 
whether case law covers these aspects (IE).  

Article 5(3)  sets  out  a  negative  condition.  Where  Member  States  have  no  contradictory 
legislation  or  practice  in  place,  it  is  assumed  that  they  meet  the  condition,  namely  that  the 
liability  of  legal  persons  does  not  exclude  criminal  proceedings  against  natural  persons 
involved as perpetrators, instigators or accessories. 

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 the commission of the offence possible through lack of supervision or 

9 

 
 
 
control.  Article 6(1),  in  addition  to  financial  penalties,  gives  other  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. 
Under Article 6(2), sanctions have to be effective, proportionate and dissuasive. 

18 Member States (BE, BG, CZ, DE, DK, EL, FR, HR, LV, LU, HU, MT, AT, PL, SK, SI, FI 
and CY) have provided information which indicates that legislation transposing Article 6(1) is in 
place. The information from the other Member States was not conclusive. 

Article 6(2)  is  addressed  in  national  legislation  in  26  Member  States.  IE  confirms  the 
transposition  of  Article 6  by  means  of  a  legal  act  adopted  in  1906.  However,  this  act  only 
covers penalties for natural persons, not legal persons. The information provided is therefore 
insufficient to assess the transposition. 

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. 

All Member States have in place national measures to transpose this provision. 

In line with Article 7 (2), 16 Member States (BG, DE, DK, FR, EL, IT, IE, LT, LU, HU, MT, 
NL,  AT,  PL,  FI  and  SE)  have  decided  not  to  apply  certain  rules  on  jurisdiction  (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 some Member States (such 
as FI, FR, or DK), under Article 7 (2) b) a dual criminality requirement is foreseen, and may 
be  subject  to  further  conditions,  such  as  a  report  submitted  by  the  victim  (FR)  or  the 
proceeding initiated by the prosecutor (FR). 

CONCLUSIONS 

Information received from the Member States indicates that major reforms have taken place in 
many of them since 2011. For example, Greece amended its criminal provisions on corruption 
in  2014,  and  Bulgaria,  Germany,  Estonia  and  Spain  did  so  in  2015.  Belgium  amended  its 
Criminal Code in 2016 and 2018 and Italy did so in 2017. Hungary adopted a new Criminal 
Code  in  2012  and  revised  all  the  related  legal  instruments.  Slovakia  adopted  a  law  on  the 
liability of legal persons in 2016. 

Overall, the level of transposition of the Framework Decision has clearly improved since the 
2011 implementation report. The level of sanctions introduced in the national criminal codes 
is in line with the minimum thresholds of the Framework Decision in all Member States.  

However, some of the Framework Decision's provisions have been difficult to implement in 
some  Member  States.  For  example,  accepting  the  promise  of  a  bribe  is  not  covered  in  the 
national legislation of all Member States, and in some countries the committing of an offence 
by someone in a directing or working role is limited to specific positions or powers. Undue 
advantage  offered  or  given  to  third  parties  does  not  seem  to  be  fully  covered  in  a  small 
number of Member States. Undue advantage is also a concept which is defined in a variety of 
ways,  sometimes  covering  more  than  what  is  strictly  necessary,  but  other  times  omitting 
important elements. Furthermore, some Member States included a limitation to the scope of 
the  private  sector  corruption  offence,  either  by  specifying  certain  conditions  in  which  the 
offence may be committed, or by limiting the scope of the offence to companies and other for-
profit entities, thereby omitting non-profit organisations. In some Member States, the relevant 
provisions of the Criminal Code do not extend to non-profit entities.  

10 

 
 
 
 
While  several  Member  States  made  efforts  to  amend  their  national  legislation,  their  efforts 
need  to  extend  to  enforcing  these  criminal  measures.  Only  1323  Member  States  provided 
recorded  data  on  bribery  in  the  private  sector,  among  the  22  Member  States  that  provided 
statistics  in  the  framework  of  2018  update  for  the  reference  years  2014–2016.  There  have 
been only very few convictions for private sector corruption in the reported years. 

The  Commission  will  continue  to  support  Member  States  in  transposing,  implementing  and 
enforcing EU legislation to a satisfactory level. This includes checking that national measures 
fully  comply  with  the  corresponding  provisions  in  the  Framework  Decision,  organising 
meetings  with  Member  States’  national  authorities  and  facilitating  the  development  and 
exchange of best practices in specific areas. Where necessary, the Commission will make use 
of  its  enforcement  powers  under  the  Treaties  through  infringement  procedures.  Finally,  the 
Commission will continue to collect criminal statistics covering private sector corruption. 

23 AT, BE, BG, DE, HR, HU, IT, LT, LU, PL, PT, SL and UK. 

11