Preamble

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 82(1), point (d), and Article 83(1) and (2) 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 Economic and Social Committee (1), Having regard to the opinion of the Committee of the Regions (2), Acting in accordance with the ordinary legislative procedure (3), Whereas: (1) Corruption remains a significant problem at Union level, threatening the stability and security of societies, including by enabling organised and other serious crime. Corruption undermines democratic institutions and universal values on which the Union is founded, particularly the rule of law, democracy, equality and the protection of fundamental rights. It jeopardises development, prosperity and the sustainability and inclusiveness of our economies. Combatting corruption is essential for strengthening the quality of democracy and for the full realisation of the rule of law. In order to effectively prevent and combat corruption, a comprehensive and multidisciplinary approach is required. The purpose of this Directive is to tackle corruption by means of criminal law, allowing for better cross-border cooperation between competent authorities. (2) Council Framework Decision 2003/568/JHA (4) lays down requirements on the criminalisation of corruption concerning the private sector. The Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (5) (the ‘Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union’) addresses certain acts of corruption involving officials of the European Communities or officials of the Member States in general. Those instruments are, however, not sufficiently comprehensive, and the current criminalisation of corruption varies across Member States, hampering a coherent and effective response across the Union. Enforcement gaps and obstacles in cooperation between the competent authorities of different Member States have also emerged. This Directive aims to amend and expand the provisions of those instruments. Since the amendments to be made are of substantial number and nature, both instruments should, in the interests of clarity, be replaced in their entirety in relation to the Member States bound by this Directive. (3) The existing legal framework should be updated and strengthened to facilitate an effective fight against corruption across the Union. This Directive aims to criminalise corruption offences when committed intentionally. Intention and knowledge can be inferred from objective and factual circumstances. As this Directive provides for minimum rules, Member States remain free to adopt or maintain more stringent rules concerning corruption offences. This Directive builds upon the existing legal framework and should not be interpreted as aiming to weaken current national anti-corruption rules. (4) Corruption is a transnational phenomenon that affects all societies and economies. Measures adopted at national or Union level should recognise that international dimension. Union action should therefore take into account the work of the Group of States against Corruption of the Council of Europe (GRECO), the Organisation for Economic Co-operation and Development (OECD) and the United Nations Office against Drugs and Crime (UNODC). (5) Diverse manifestations of corruption necessitate a coordinated and harmonised approach among Member States to address its root causes and consequences effectively. To effectively tackle corruption, both preventive and repressive mechanisms are needed. Member States are encouraged to take a wide range of preventive, legislative and cooperative measures as part of the fight against corruption. Whereas corruption is first and foremost a crime and specific corruption offences and corruption-related offences are defined in national and international law, failings in integrity, undisclosed conflicts of interest or serious breaches of integrity rules can result in corruption offences if left unaddressed. The prevention of corruption mitigates the need for criminal repression and has wider benefits in promoting public trust and managing the conduct of public officials. Effective anti-corruption approaches in all Member States should build on measures to enhance transparency and integrity, including by regulating in areas such as conflict of interest, lobbying and revolving doors. Public bodies should seek the highest standards of integrity, transparency and freedom from undue influence as an important part of tackling corruption more broadly. A public service staffed with individuals with a high level of skills and integrity is a fundamental pillar for efficient, transparent and effective Member States that aim to eradicate corruption effectively. Enhancing transparency, efficiency and the use of objective criteria in the recruitment and promotion of public officials could help to achieve such staffing. As the private sector also plays a key role in preventing and detecting corruption, Member States can encourage the development and implementation of robust and effective compliance mechanisms within private companies. In order to ensure a common approach regarding the effectiveness of such compliance mechanisms, which could include a risk map, a code of conduct, third-party evaluation, and internal control and audit, Member States can cooperate in developing common guidelines. (6) While this Directive fully respects all relevant provisions of national constitutions, constitutional principles and laws, it is emphasised that unduly shielding individuals –particularly those holding public office – from accountability for corruption offences might undermine public trust in a manner incompatible with the objectives of this Directive. (7) Without prejudice to their institutional and administrative autonomy, Member States should have in place bodies or organisational units tasked with the prevention and repression of corruption. Member States are not obliged to create new bodies or organisational units, such as specialised courts or tribunals, under this Directive, and can decide to assign the same body or organisational unit with both preventive and repressive functions as well as with tasks related to other criminal offences, such as organised crime. In accordance with the principle of Member States’ autonomy, such bodies or units do not necessarily need to be central bodies or organisational units. With full respect for Member States’ institutional and administrative autonomy, when such anti-corruption bodies have the power to take decisions on cases brought to their attention or identified by them, or make any recommendations that they consider necessary, they should operate without undue interference or undue influence from others, thus being protected against undue external interventions or pressure. In order to ensure that such bodies or organisational units operate effectively, Member States should ensure that resources and powers allocated to such bodies or organisational units are commensurate with the proper administration of their tasks and allow for specialised knowledge on the prevention and repression of corruption. (8) In order to raise citizens’ awareness of the scope, characteristics and effects of corruption, it should be possible to undertake various measures, including in cooperation with relevant stakeholders such as civil society, academia and the media. Such measures could include, for example, dedicated sources of information, compilations of publications and relevant regulation, and awareness-raising campaigns and seminars open to the public and in an accessible language. (9) The Union is a party to the United Nations Convention Against Corruption (UNCAC), which is the most comprehensive international legal instrument to combat corruption, combining measures to prevent and fight corruption. It requires that parties to the Convention take legislative and other measures to establish criminal offences concerning bribery, misappropriation and money laundering and consider taking legislative or other measures to criminalise additional acts, such as the abuse of functions, trading in influence and illicit enrichment. In line with the commitments contained in the political declaration adopted at the 2021 United Nations General Assembly special session against corruption entitled ‘Our common commitment to effectively addressing challenges and implementing measures to prevent and combat corruption and strengthen international cooperation’, the Union should, to the extent possible, go beyond the minimum requirements of UNCAC and lay down additional measures for preventing and combatting corruption. This Directive draws on the observations and best practices emanating from the Mechanism for the Review of Implementation of the UNCAC. (10) Taking account of the evolution of corruption threats, the legal obligations of the Union and Member States under international law, and the development of national legal frameworks, the definition of corruption offences should be further approximated across all Member States so that it covers corrupt conduct more comprehensively. (11) To avoid impunity for corruption offences in the public sector, the scope of application of this Directive should be well defined. First, the concept of public official should also cover persons working in international organisations, including in the institutions, agencies and bodies of the Union and international courts. Second, as many entities or persons exercise public functions without holding a formal office, the concept of public official should cover all relevant officials, whether appointed, elected or employed on the basis of a contract, holding a formal administrative or judicial office, as well as all persons providing a public service, who have been vested with public authority or are subject to the control or supervision of public authorities in relation to the carrying-out of such a public service function, even if they do not hold formal office. For the purposes of this Directive, the definition of public official should also cover persons performing public service functions in state-owned and state-controlled enterprises, as well as in asset-management foundations and privately owned companies performing public service functions and in the legal persons established or maintained by them. Any person holding a legislative office at national, regional or local level should be assimilated to a national official for the purposes of this Directive in accordance with national law. (12) High-level officials should be understood as persons who exercise key executive, administrative, legislative or judicial functions. Such functions can include actively participating in the development or execution of governmental functions, determining and implementing policies, enforcing laws, proposing or implementing legislation, adopting and implementing by-laws or normative decrees, taking decisions on government expenditure and taking decisions on the appointment of individuals to key executive, administrative, legislative or judicial functions, as well as deciding on court cases. High-level officials can include national officials such as heads of central and regional government, members of central and regional government, deputy ministers, state secretaries, key political advisers, heads and members of a minister’s private office or cabinet when such have been established, as well as members of parliamentary chambers, members of constitutional and supreme courts, the prosecutor general, and members of supreme audit institutions, as well as members of the College of Commissioners of the European Commission and the European Parliament. (13) It is necessary to strengthen the legal framework to combat bribery and to ensure that law enforcement and prosecution authorities are equipped with effective and proportionate tools. In the context of the bribery of public officials, two types of bribery can be distinguished. Active bribery in the public sector occurs where a person promises, offers or gives an undue advantage of any kind in order to influence a public official. Passive bribery in the public sector occurs where a public official requests or receives such undue advantage, or accepts the offer or the promise thereof in order to act or to refrain from acting in a certain manner. Advantages can be tangible or intangible, and pecuniary or non-pecuniary. An advantage is not considered to be undue where, for example, it is permitted by law or by administrative rules or in cases of minimum gifts or gifts of very low value. This Directive should also establish minimum rules on bribery and other forms of corruption in the private sector where the immediate victims include companies that are impacted unfairly and where free competition can be diminished by each bribe. The offence of bribery in the public sector builds on the offences of passive and active corruption defined in Articles 2 and 3 of the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union and should not be interpreted or applied in a manner that is more lenient than those provisions of the Convention. (14) Conduct in breach of professional duties by directors or workers of private-sector entities in the course of economic, financial or business activities can be detrimental to the interests of a private-sector company, and can also distort competition in relation to the purchase of goods or commercial services to the detriment of both potential competitors and the general public. The criminalisation of bribery in the private sector aims to deter both kinds of harm. It should contribute to preventing third parties from interfering in the fair conduct of business by promising, offering or giving any undue advantage to directors or workers of private-sector entities for them to act or to refrain from acting, in breach of their duties (active bribery in the private sector). The offence should also cover directors and workers of private-sector entities who request or receive any undue advantage, or accept the offer or the promise thereof, in order to act or to refrain from acting, in breach of their duties (passive bribery in the private sector). (15) In order to ensure that public officials do not intentionally damage the financial interests of the public or private entity concerned by using funds for purposes other than those for which they were intended, rules on the offence of misappropriation by public officials of property whose management is entrusted to them should be laid down. In order for misappropriation to constitute a criminal offence, it should lead to an advantage for the public official or a third party or damage to the financial interests of the public or private entity concerned. In order to take a comprehensive approach to the fight against corruption, Member States are also encouraged to criminalise misappropriation in the private sector. Member States should not define the offence as requiring both the establishment of damage and advantage. (16) The exertion of influence over public decision-makers with a view to obtaining an undue advantage can seriously hamper the proper functioning of public administrations. To adequately tackle it, the constituent elements of the offence of trading in influence should cover two different situations, when carried out intentionally. First, the offence should cover the promising, offering or giving of any undue advantage aimed at the exertion of improper influence with a view to obtaining an undue advantage from a public official. Second, it should also cover the request or receipt of any undue advantage, or the acceptance of an offer or a promise thereof, in order to exert improper influence with a view to obtaining an undue advantage from a public official. Such conduct should constitute a criminal offence irrespective of whether the influence was claimed or real and whether the influence was exerted and whether or not the influence led to the outcome intended. The offence should not cover the legitimate exercise of acknowledged forms of interest or legal representation which can seek to legitimately influence public decision-making but do not entail an undue exchange of advantages. Such forms of interest representation, such as advocacy, are often carried out in a regulated environment precisely so that a lack of transparency does not allow them to become gateways to corruption. Having in place well-functioning additional rules on disclosing conflicts of interest, on ‘revolving doors’ or on the financing of political parties, can also help to avoid grey areas and prevent undue influence. For the purposes of the offence of trading in influence, the undue advantage to exert improper influence includes remuneration for those forms of representation where such activities are carried out in a manner fulfilling the other elements of the offence, including due to a relevant violation of the applicable rules. (17) The unlawful exercise of public functions risks undermining public trust, the rule of law and economic fairness and can cause serious harm to the public interest. In order to prevent such harm, Member States should identify serious violations of law, be they actions or omissions, or both. Such serious violations might include for example the violation of legislative or regulatory provisions designed to guarantee free access and contracts on equal terms for candidates, or the deliberate misapplication of the law by judges or arbitrators. Member States should be able to limit the application of the offence of unlawful exercise of public functions to certain categories of public officials. In identifying the relevant serious violations of law, Member States could have regard to matters including whether conduct is committed in order to obtain an undue advantage for the official in question or for a third party or whether it is committed in order to cause damage to the legitimate rights or interests of a person. (18) The obstruction of justice is a criminal offence committed in support of corruption, among other offences. This is acknowledged in Member States’ criminal law. It is therefore necessary to criminalise the obstruction of justice, which entails the exercise of physical force, threats or intimidation, or the inducement of false testimony or evidence. Actions aimed at interfering with the giving of testimony or production of evidence, or with the exercise of official duties by judicial or law enforcement officials should also fall within the scope of this offence. In line with the UNCAC, this Directive applies only to the obstruction of justice in proceedings relating to a corruption offence. When transposing this Directive, Member States should not be obliged to establish a specific offence of obstruction of justice relating to corruption offences, as established in Chapter II of this Directive, where their national law includes a general provision criminalising the obstruction of justice, applicable to all offences, including corruption. Member States remain free to criminalise such conduct through several criminal offences at national level. (19) Corruption is driven by the pursuit of undue economic and other advantages. In order to reduce the incentive for individuals and criminal organisations to commit new criminal acts and deter individuals from consenting to becoming fake property owners, enrichment by corruption offences should be criminalised. This should, in turn, complicate the concealment of illicitly acquired property and reduce the spread of corruption as well as the damage done to society. Transparency helps competent authorities to detect possible illicit enrichment. For example, in jurisdictions where public officials are required to declare their assets at regular intervals, including when taking up and completing duties, authorities can assess whether the declared assets correspond to declared incomes. (20) Member States should adopt measures to define as a punishable criminal offence the intentional concealment or disguising of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from the commission of the offences of bribery in the public or private sector, misappropriation, trading in influence, obstruction of justice, or inciting, aiding and abetting, and attempt, as set out in this Directive. (21) Illegal political financing can be a means of inducing decision-makers to take decisions which might be in the interest of the financer. Member States should consider taking appropriate action against types of illegal political financing in line with the principle of proportionality, and accountability and transparency rules at Union and national level, while fully respecting the fundamental freedoms of the internal market and the electoral rights of the Union citizens. While not regulated by this Directive, Member States could consider criminalising such illegal political financing where it represents a threat to the democracy of the Member States and the Union. (22) The criminal offence of enrichment from corruption offences should cover the conduct of a public official who acquires, possesses or uses property which the public official knows to be derived from corruption offences committed by another public official. The offences of enrichment from corruption offences and concealment are without prejudice to Directive (EU) 2018/1673 of the European Parliament and of the Council (6) and in particular Article 3(5) and recital 11 on ‘self-laundering’ thereof, where applicable. When considering whether property is derived from any kind of criminal involvement in a corruption offence and whether the person knew that, the specific circumstances of the case should be taken into account, such as the fact that the value of the property is disproportionate to the lawful income of the accused person and that the criminal activity and acquisition of property occurred within the same time frame. It should not be necessary to establish knowledge of all the factual elements or all circumstances relating to the criminal involvement, including the identity of the perpetrator. In addition, the proceeds obtained from corruption offences can be confiscated on the basis of Directive (EU) 2024/1260 of the European Parliament and of the Council (7). That Directive also includes provisions on other types of confiscation including, under certain conditions, on the confiscation of proceeds, or other property the value of which corresponds to proceeds, which were transferred by a suspected or accused person to third parties, or which were acquired by third parties from a suspected or accused person, where the relevant third parties knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation. (23) In order to deter corruption throughout the Union, Member States should lay down minimum types and levels of criminal and non-criminal penalties for the criminal offences defined in this Directive. The maximum levels of imprisonment and other penalties should be sufficiently high to deter possible offenders and to reflect the harmfulness of corruption. At the same time, those levels should be proportionate to the seriousness of each corruption offence and be consistent with levels of criminal penalties set in Union and national law. Member States should ensure that penalties are enforced to the extent necessary in order to deter the commission of those offences. If national law establishes the eventuality of suspended or conditional sentences, early release, parole or pardoning of persons convicted of any of the offences referred to in this Directive, judicial authorities should be able to take into account the seriousness of the criminal offences concerned among other factors. (24) This Directive should not affect the proper and effective application of disciplinary measures or penalties other than those of a criminal nature, such as administrative penalties. Penalties that cannot be equated to criminal penalties, which are imposed on the same person for the same conduct, can be taken into account when sentencing that person for a criminal offence defined by this Directive. The principle of the prohibition on being tried or punished twice in criminal proceedings for the same criminal offence (ne bis in idem) should be fully respected. (25) Member States are encouraged to enable their competent authorities to impose, in addition or as an alternative to imprisonment, penalties or measures that are not necessarily of a criminal nature, such as exclusion from tender procedures or temporary bans on running for public office. Such measures have a general dissuasive effect and could reduce the recidivism of convicted offenders. Member States should also consider establishing procedures for the suspension or temporary reassignment of a public official accused of a criminal offence as referred to in this Directive, bearing in mind the need to respect the principle of the presumption of innocence, and the right to an effective remedy. (26) In order to enhance the criminal justice response to offences concerning corruption and to deter the commission of those offences, the penalties regime against legal persons and natural persons should be clarified and brought into line with other Union criminal law instruments. Under Directives 2009/81/EC (8), 2014/23/EU (9), 2014/24/EU (10) and 2014/25/EU (11) of the European Parliament and of the Council, a conviction, by way of final judgment, for corruption is grounds for an exclusion from participating in a procurement procedure or a concession award procedure. Nevertheless, Member States should also be able to decide to include, among the criminal or non-criminal penalties or measures which can be imposed on legal persons and natural persons, the exclusion of such legal persons from tender procedures or concessions, in order to also cover procurement procedures and concession award procedures below the thresholds of the relevant directives. (27) Legal persons should not be able to avoid responsibility by using intermediaries, including related legal persons, to offer, promise or give a bribe to a public official on its behalf. Moreover, fines for legal persons should be calculated considering their worldwide turnover or based on fixed maximum amounts. Non-trial resolutions are being applied in the context of corruption offences and often viewed as a pragmatic and efficient way to resolve cases that would otherwise require a significant amount of time and resources to investigate and prosecute before reaching a court. However, non-trial resolutions might also present some challenges, and Member States are encouraged to take such challenges into account. (28) While there is no obligation to increase sentences, Member States should ensure that the judge or the court is able to take into account the aggravating circumstances set out in this Directive, as implemented in national law, when sentencing offenders. It remains within the discretion of the judge or the court to determine whether to increase the sentence due to the specific aggravating circumstances, taking into account the specific circumstances in each individual case. Member States should not be obliged to provide for aggravating circumstances where national law provides for the criminal offences defined in Council Framework Decision 2008/841/JHA (12) to be punishable as separate criminal offences and this could lead to more severe penalties. (29) Member States should ensure that the judge or the court is able to take into account the mitigating circumstances set out in this Directive, as implemented in national law, when sentencing offenders. Subject to judicial discretion, such circumstances should cover those cases in which offenders provide information or otherwise collaborate with authorities. Similarly, where legal persons have implemented genuine, effective and duly assessed internal controls, ethics and compliance programmes, it should be possible to consider such actions as mitigating circumstances when sanctioning such legal persons. Lower penalties should also be considered where, upon discovery of an offence, a legal person swiftly discloses information and takes remedial measures. In any case, it remains within the discretion of the judge or the court to determine the actual amount of the penalty due to the specific mitigating circumstances, taking into account the specific circumstances in each individual case, including, where applicable, the fact that the legal person has compliance programmes only for cosmetic purposes, also called ‘window dressing’. (30) Members of parliament and other public officials can have immunity or legal protection from investigation or prosecution, which helps strengthen their independence by protecting them against unfounded complaints, in particular with regard to opinions expressed or votes cast in the course of performing their functions. However, such immunities can hamper the effective investigation and prosecution of corruption offences, including by affecting the detection and investigation or prosecution of other persons who do not enjoy immunity and might have participated in the offence. There should therefore be an appropriate balance between, on the one hand, any immunities or jurisdictional privileges accorded to public officials for acts performed in the exercise of their functions, and, on the other hand, the possibility of effectively investigating, prosecuting and adjudicating corruption offences. Member States should ensure that privileges with regard to and immunity from investigation and prosecution granted to national officials for the offences referred to in this Directive can be lifted. However, Member States should not be obliged to change their national constitutions or constitutional principles when transposing this Directive. In the transposition of this Directive into national law as well as in the application of national law transposing this Directive, those privileges and immunity, including respect for the freedom of the member’s mandate, are fully taken into account. This Directive should not affect the legitimate exercise of acknowledged forms of interest representation which can seek to legitimately influence public decision-making but do not entail an undue exchange of advantages. Interest representation is important for the creation of policy that is supported by civil society and can contribute legitimately to the public sector. (31) Without prejudice to the set-up of their national judicial systems, discretionary powers under national law not to prosecute persons for criminal offences referred to in this Directive should be exercised in accordance with clear rules and criteria. Such rules should aim to take into account the need, in general, for effective, proportionate and dissuasive criminal penalties for corruption offences and ensure the effectiveness of the judicial process. (32) 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. (33) Given, in particular, the mobility of certain perpetrators and proceeds stemming from criminal activities, as well as the complex cross-border investigations required to combat corruption, all Member States should establish their jurisdiction in order to enable the competent authorities to investigate and prosecute that crime effectively, including where the offence is committed in whole or in part in its territory. As part of that obligation, Member States should ensure that jurisdiction is also established in situations where an offence is committed by means of information system used on their territory, whether or not that technology is based in their territory. (34) In order to ensure that the competent authorities have sufficient time to conduct complex investigations and prosecutions, this Directive provides for a minimum limitation period that enables the detection, investigation, prosecution and adjudication of corruption offences for a sufficient period of time after the commission of such offences, without affecting those Member States which do not set limitation periods for investigation, prosecution and enforcement. (35) Corruption offences can be difficult to identify and investigate, as they mostly occur covertly. Thus, a significant proportion of corruption crime remains undetected, and the criminal parties are able to benefit from the proceeds of their corruption. The longer it takes to detect a corruption offence, the more difficult it is to uncover evidence. Therefore, it should be ensured that law enforcement and competent authorities have appropriate investigative tools to gather relevant evidence of corruption offences which often affect more than one Member State. Furthermore, Member States should allocate sufficient training, in close coordination with the European Union Agency for Law Enforcement Training (CEPOL), including on the use of investigative tools to successfully carry out proceedings and the identification and quantification of proceeds of corruption in the context of asset recovery and confiscation. In addition, this Directive facilitates the gathering of information and evidence by setting out mitigating circumstances for offenders that help the authorities. The training of law enforcement and the judicial authorities should concern criminal investigation and criminal proceedings of offences falling within the scope of this Directive. (36) Persons reporting information to competent authorities concerning past, ongoing or planned instances of corruption, having acquired such information in the context of their work-related activities, risk suffering retaliation in that context. Such whistleblowers’ reports can strengthen enforcement by enabling the competent authorities to effectively prevent, detect and prosecute corruption. Given the public interest in shielding public and private institutions from such acts, and in enhancing transparency, good governance and accountability, it is necessary to ensure that effective arrangements are in place to enable whistleblowers to use confidential channels, to alert competent authorities and to protect them from retaliation. Directive (EU) 2019/1937 of the European Parliament and of the Council (13) applies to reports of breaches affecting the financial interests of the Union as referred to in Article 325 of the Treaty on the Functioning of the European Union (TFEU) and as further specified in relevant Union measures and thus applies to the reporting of all criminal offences falling within the scope of Directive (EU) 2017/1371 of the European Parliament and of the Council (14). As regards the criminal offences referred to in this Directive, Directive (EU) 2019/1937 should be applicable to the reporting of such offences and to the protection of persons reporting such offences under the conditions established therein. Beyond the obligations flowing from Directive (EU) 2019/1937, competent national authorities should ensure that persons providing evidence or otherwise cooperating with criminal investigations have access to the necessary protection, in accordance with national law. (37) Since the general public is negatively affected by corruption offences and cannot generally represent itself as a victim in criminal proceedings, for the purposes of effective enforcement, members of the public concerned should have the possibility of acting on behalf of the general interest in corruption cases, in accordance with national law and subject to the relevant procedural rules. This Directive does not require Member States to introduce new procedural rights for the members of the public concerned. However, when such procedural rights for members of the public concerned exist in a Member State in equivalent situations concerning criminal offences other than those provided for pursuant to this Directive, such as the right to participate in proceedings as a civil party, such procedural rights should also be granted to the members of the public concerned in proceedings concerning the corruption offences defined in this Directive. The rights of the members of the public concerned are without prejudice to the rights of victims as set out in Directive 2012/29/EU of the European Parliament and of the Council (15). The notions of ‘members of the public concerned’ and ‘victims’ should remain distinct, and Member States should not be required to apply victims’ rights to members of the public concerned. This Directive does not require Member States to grant to members of the public concerned the procedural rights in criminal proceedings that they grant to categories of persons other than members of the public concerned. (38) This Directive requires Member States to adopt and publish a national strategy on preventing and combatting corruption. Member States are encouraged to develop the national strategy in consultation with civil society, anti-corruption bodies or organisational units, independent experts, researchers and other stakeholders. The national strategy should take into account the Member States’ needs, specificities and challenges. (39) Independent civil society organisations are crucial for the proper functioning of democracy, and play a key role in upholding the common values on which the Union is founded. They act as essential watchdogs, drawing attention to threats to the rule of law, contributing to making those in powers accountable, and ensuring respect for fundamental rights. Member States should promote the participation of civil society in anti-corruption activities, where appropriate. (40) Media pluralism and media freedom are key enablers for the rule of law, democratic accountability, equality and the fight against corruption. Independent and pluralistic media, in particular investigative journalism, play an important role in the scrutiny of public affairs, detecting possible corruption and integrity breaches, raising awareness and promoting integrity. Member States have an obligation to guarantee an enabling environment for journalists, protect their safety and proactively promote media freedom and media pluralism. The Commission Recommendation on the protection, safety and empowerment of journalists and other media professionals in the European Union of 16 September 2021, the Commission Recommendation on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (‘Strategic lawsuits against public participation’) of 27 April 2022 as well as Directive (EU) 2024/1069 of the European Parliament and of the Council (16) include important safeguards and standards to ensure that journalists, human rights defenders and others can carry out their role unhindered. (41) To effectively address the criminal offences defined in this Directive, it is necessary that competent authorities in the Member States collect accurate, consistent and comparable statistical data on those offences. Member States should therefore ensure that an adequate system is in place for the recording, production and transmission of existing statistical data on the offences defined in this Directive. It is important that those statistical data are used by Member States to analyse the scale of and trends in offences related to corruption, as well as for providing information to citizens. Member States should publish relevant statistical data on proceedings related to corruption offences, extracted from data that already exists at a centralised or decentralised level within the whole Member State. Those data can be analysed and used by the Commission in the context of the monitoring, implementation and evaluation of this Directive, as well as the application of any of the instruments in the Rule of Law Toolbox, such as the annual Rule of Law Report. (42) To combat corruption effectively, the efficient exchange of information between competent authorities responsible for the prevention, detection, investigation or prosecution of corruption offences is crucial. Member States should ensure that information is exchanged between competent law enforcement authorities using Europol’s Secure Information Exchange Network Application (SIENA) in an effective and timely manner in accordance with national and Union law. This Directive, which aims to lay down common definitions of corruption offences, should serve as a benchmark for information exchange and cooperation between the competent national authorities under Regulations (EU) No 603/2013 (17), (EU) 2018/1240 (18) and (EU) 2018/1862 (19) of the European Parliament and of the Council, Directives (EU) 2016/681 (20), (EU) 2019/1153 (21) and (EU) 2023/977 (22) of the European Parliament and of the Council, and Council Decision 2008/633/JHA (23). (43) Corruption is a cross-cutting concern, and vulnerabilities, as well as the most appropriate way of tackling them, differ from sector to sector. Member States should therefore, within appropriate intervals, perform an assessment to identify the sectors or occupations most at risk of corruption and develop measures to address the main risks in the sectors or occupations identified, including by regularly organising, as appropriate, awareness-raising activities adapted to the specificities of the sectors or occupations identified. Member States that have broad national anti-corruption strategies in place could also choose to address their risk assessments in those strategies, as long as the risks are assessed and the measures are reviewed regularly. For instance, as stated in the report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions of 23 January 2019 entitled ‘Investor Citizenship and Residence schemes in the European Union’ investor residence schemes are among the sectors that bear high risks for corruption and should therefore be included in the assessments of the sectors most at risk of corruption and the training sessions to be conducted by Member States as provided for by this Directive. (44) To provide for an equivalent level of protection between the Union’s and the national financial interests, the provisions of Directive (EU) 2017/1371 should be aligned with those of this Directive. To that end, the rules applicable to criminal offences affecting the Union’s financial interests as regards criminal or non-criminal penalties, aggravating and mitigating circumstances and limitation periods should be equivalent to those laid down by this Directive. (45) The implementation of this Directive should ensure a level of protection of the Union’s financial interests which is equivalent to the protection of the national financial interests. (46) Since the objectives of this Directive, namely to establish common minimal rules concerning the definitions of criminal offences in the area of corruption in all Member States and the availability of effective, proportionate and dissuasive criminal penalties for those offences, cannot be sufficiently achieved by Member States but can rather, by reason of the scale and effects of this Directive, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives. (47) 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 in particular 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 principle of ne bis in idem. (48) In accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council (24) the European Data Protection Supervisor delivered an opinion on 21 June 2023. (49) In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, Ireland has notified, by letter of 10 July 2023, its wish to take part in the adoption and application of this Directive. (50) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexed to the TEU and to the TF EU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application. Framework Decision 2003/568/JHA shall continue to be binding upon and applicable to Denmark, HAVE ADOPTED THIS DIRECTIVE:

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Source: EUR-Lex (Cellar) · retrieved 2026-10-09 · Text as adopted (Official Journal); later amendments are not incorporated in this text.