A comprehensive EU anti-corruption policy

The aim of the anti-corruption policy of the European Union is to reduce all forms of corruption, at every level, in all EU countries and institutions and even outside the EU.

The Communication reviews the EU’s progress in tackling corruption and suggests improvements to give fresh impetus to these efforts. The text also aims to identify possible areas where the EU might be an appropriate actor to take future initiatives in the fight against corruption.

ACT

Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee – On a comprehensive EU policy against corruption [COM(2003) 317 final – Not published in the Official Journal]

SUMMARY

The Communication adopts the definition of corruption used by the United Nations’ Global Programme against Corruption, i.e. “abuse of power for private gain”. In its conclusion it sets out the principle elements of a future EU anti-corruption policy:

• a strong political commitment at the highest level;
• the implementation of existing anti-corruption instruments should be closely monitored and strengthened. The Commission recommends that the European Community adhere to the Council of Europe’s conventions on corruption and participate in its monitoring mechanism, GRECO;
• EU Member States should develop and improve investigative tools and allocate more specialised staff to the fight against corruption;
• Member States and EU institutions and bodies should redouble their efforts to combat corruption damaging the financial interests of the European Community;
• common integrity standards should be established for public administrations across the EU;
• the efforts of the private sector to raise integrity and corporate responsibility should be supported;
• the fight against political corruption and illicit financing of social partner entities and other interest groups should be stepped up;
• corruption-related issues should be addressed in dialogues with acceding, candidate and other third countries;
• the EU should continue to make the fight against corruption an integral part of its external and trade police.

These elements are elaborated in the different sections of the Communication. A historical introduction and a section on terminology are followed by a third section that highlights one of the most important aspects: the priority given to political commitment. A clear political determination and an unambiguous stance by the Member States and the EU would give a clear signal to representatives of other countries.

The Communication also stresses the need to develop an anti-corruption culture in the EU institutions. It reviews the steps taken by the Commission in this field, particularly the creation of the European Anti-Fraud Office (OLAF). It also refers to the guide to sound financial management and other internal measures taken by the Commission. Following the creation of the Investigation and Disciplinary Office (IDOC) in 2002, there is now a need for a memorandum of agreement to regulate relations between IDOC and OLAF.

Giving effect to criminal law instruments

This section explains the need to agree on common definitions of offences and common penalties and to elaborate a multidisciplinary EU policy. Key elements here are the ratification of European and international anti-corruption instruments, the monitoring of their implementation and the fight against corruption in the private sector.

On the subject of monitoring implementation, the Commission points out that, once the EU instruments are in place, there will be a need to align criminal law provisions in the Member States. International efforts to combat corruption can prove their worth only if they are followed by monitoring and evaluation mechanisms based on peer review. The Communication also points to the lack of a proper follow-up or evaluation mechanism comparable to GRECO, the group that monitors the implementation of the Council of Europe’s anti-corruption measures. However, the Commission is not at this stage in favour of setting up a separate evaluation and monitoring mechanism for the EU, in order to avoid duplication of effort.

Although the Council of Europe’s civil and criminal law conventions on corruption and the Statute of GRECO all contain specific accession clauses for the European Community, the EU has not yet acceded to them. The Commission is preparing for accession. If participation in GRECO is not regarded as a viable option, the possibility of setting up a separate EU evaluation mechanism will be considered.

The fight against corruption in the private sector is also discussed. A Joint Action to make corruption a criminal offence was adopted in 1998. In 2002 Denmark submitted an initiative for a more binding Council Framework Decision on the same subject. The Commission welcomes this initiative because it gives the same degree of legal protection against corruption, regardless of whether it occurs in the public or the private sector.

There have been several advances in the field of police and judicial cooperation in the EU:

• the judicial cooperation network, EUROJUST, was set up in 2002 with a mandate that covers fraud and corruption, money laundering and participation in a criminal organisation;
• the mandate of the European Police Office (Europol) has been extended;
• the Commission has suggested appointing a European Financial Prosecutor to deal with corruption affecting the financial interests of the Community;
• the Framework Decision on the European Arrest Warrant, applicable since 1 January 2004, will be a key factor in the fight against corruption because it will make it easier for offenders to be surrendered to the judicial authorities of the requesting State;
• the second Money Laundering Directive adopted in 2001 (Directive 2001/97/EC) classifies corruption as a serious offence and thus increases the obligations on the Member States to tackle it;
• the Council is currently examining proposals for two new legal acts on the mutual recognition of orders freezing the proceeds of corruption offences and facilitating the confiscation of such proceeds.

In the Commission’s view, however, the main problem continues to be the implementation of legislation, and more importance needs to be attached to preventing, investigating, prosecuting and adjudicating corruption cases. It calls on the Member States to introduce common standards for the collection of evidence, the confiscation of the proceeds, special investigative techniques and the protection of whistleblowers, victims and witnesses. It also urges Member States, where necessary, to introduce clear guidelines for the staff of public administrations.

The anti-corruption authorities must be independent, autonomous and endowed with effective means for gathering evidence and protecting those who help them to combat corruption. Inter-agency cooperation and joint investigations should be encouraged.

Preventing corruption – the single market and other internal policies

The Commission wants to focus initiatives on preventive measures designed to avoid conflicts of interest and to introduce systematic checks and controls. It calls for steps to raise integrity in the public sector and recommends a comprehensive dialogue on minimum standards and benchmarking. It undertakes to examine the question of public procurement in the light of the introduction of new rules and stresses that bribes paid to foreign public officials will no longer be tax-deductible.

In order to raise integrity in the private sector, the Commission calls on the professional associations of notaries, lawyers, accountants, auditors and tax consultants to continue to tighten up their self-regulatory regimes. In order to enhance corporate responsibility, it urges companies, which may be both offenders and victims of corruption, to apply modern accounting standards, to adopt adequate internal audit schemes and codes of conduct, and to establish clear rules on whistleblowing. There is a need to raise awareness in the private sector as a whole, and the Commission intends to continue to stimulate the dialogue between the public and the private sector through initiatives such as the EU Forum on the prevention of organised crime.

The statutory audit will be the subject of a forthcoming communication from the Commission that will outline future policy priorities in this field. Although the EU adopted a Regulation in June 2002 requiring listed companies, including banks and insurance companies, to prepare their consolidated accounts in accordance with International Accounting Standards (IAS) and issued recommendations on the independence of the statutory auditor, there are at present no agreed auditing standards in the EU.

The Communication also includes a section on special bodies and organisations that are at the interface between the public and the private sector, such as political parties and trade unions. The Commission is calling for a review of the links maintained by these organisations. It argues that only transparency in the financing of social partners and interest groups and in election spending can prevent potential conflicts of interest. On the basis of such a study, the Commission will produce proposals on best practice in terms of transparency.

External aspects

In order to promote anti-corruption policies in the ten new EU Member States, candidate countries and other third countries, the Commission has drawn up ten general principles, which are annexed to the Communication. It also proposes increasing efforts to extend the comprehensive anti-corruption strategy to all of these countries and recognises that the biggest challenge remains effective implementation. Better coordination could be achieved with a single anti-corruption unit or body, as suggested by the Commission on a number of occasions. Better training and specialisation in this area are also recommended, as is a general strengthening of the national institutions.

In its fight against corruption and as part of its new neighbourhood policy, the EU is examining the possibilities for stepping up police and judicial cooperation and developing mutual legal assistance with neighbouring countries.

In the area of cooperation agreements and external aid programmes, the Commission is currently reviewing its framework agreement, its specific financing agreements and tender documents with a view to inserting anti-corruption clauses. This has already been done in the case of the ACP-EU partnership agreement signed in Cotonou in 2000.

In trade policy, studies have shown that corruption can be combated by open, transparent and competitive market conditions, and this is the strategy which the Commission is pursuing. It also recommends extending the Agreement on Government Procurement to other parties to the WTO and is committed to negotiating a multilateral agreement on transparency in government procurement.

Finally, the Commission invites Member States to monitor the implementation of anti-corruption clauses for officially supported export credits, in line with the revised OECD “Action Statement” of 2003.

Background

The EU has produced several documents on fighting corruption:

• Article 29 of the Treaty on European Union mentions preventing and combating corruption as one of the ways of achieving the objective of creating and maintaining a European area of freedom, security and justice;
• the 1997 action programme on organised crime calls for a comprehensive anti-corruption policy based on preventive measures;
• the first communication on an EU anti-corruption policy suggested banning the tax deductibility of bribes and introducing rules on public procurement procedures, accounting and auditing standards, and measures relating to external aid and assistance;
• the Council’s 1998 Vienna Action Plan and the Tampere European Council in 1999 also identified corruption as a particularly important area where action was needed; the Millennium Strategy on the Prevention and Control of Organised Crime reiterated the need for approximation of national legislation and to develop multidisciplinary EU policy and urged Member States to ratify the EU and Council of Europe anti-corruption instruments;
• the Communication on the fight against fraud, which sought to establish an overall strategic approach.

The EU has also established its own instruments to tackle corruption:

• the two conventions on the protection of the European Communities’ financial interests and the fight against corruption involving officials of the European Communities or officials of the EU Member States;
• the European Anti-Fraud Office (OLAF), set up in 1999, which has interinstitutional investigative powers.

The Commission is also in favour of accession to a number of instruments originating with other international bodies. The aim is to take account of the activities that already exist, in order to avoid duplication, and to ensure that measures already existing in the EU have the same mandatory character in other international organisations. The Organisation for Economic Cooperation and Development (OECD), the Council of Europe and the United Nations have already produced their own conventions on corruption:

• OECD Convention on combating bribery of foreign public officials in international business transactions;
• the Criminal Law Convention on Corruption of the Council of Europe;
• the Civil Law Convention on Corruption of the Council of Europe;
• the United Nations Convention against Corruption.