I. Introduction

Most of the international instruments adopted in past decades in the criminal law field are not limited to introducing new incriminations in order to approximate national laws or more sophisticated mechanisms of cooperation among judicial authorities. Increasingly, they also accompany the new legal framework with mechanisms aimed at monitoring the effective implementation of an instrument by its state parties, to assess practical experiences and pave the way for possible integration or future modifications.

The characteristics of these monitoring mechanisms may vary but, curiously, the reference model does not seem to stem from an international convention but rather from a non-binding format, e.g., the 40 Recommendations adopted by the Financial Action Task Force (FATF) in the field of money laundering in 1990. At the time of the adoption of the Recommendations (later revised in 1996, in 2003, and currently under new scrutiny), FATF also decided to monitor the progress made by member governments in their implementation by means of a sophisticated multilateral peer review: the mutual evaluation program.

Building on the FATF experience, mutual evaluation models have developed particularly, though not exclusively, in the field of anti-money laundering and corruption. They have been adopted by a number of international organisations such as the Organisation for Economic Cooperation and Development (OECD), the Council of Europe (CoE), and also the European Union (EU).

II. Legal Framework

A short review of the more relevant instruments adopted at the international level to fight corruption is useful for a better understanding of the matter. The Inter-American Convention, considered the “pioneer” of legally binding instruments against corruption and adopted by the Organisation of American States (OAS) on 29 March 1996, serves as the starting point.

It was soon followed by the considerably more sophisticated and comprehensive EU Convention against corruption involving officials of the European Communities or officials of Member States of the European Union adopted on 26 May 1997, which covers active and passive corruption at the internal level within Member States as well as at the EU level. The Convention had been “announced” some months before, on 27 September 1996, by the 1st Protocol to the Convention on the protection of financial interests of the European Communities, dealing with the same corruption behaviour but only if and when related to European fraud.

Just a few months after this major EU achievement, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions was adopted on 21 November 1997; in line with the mission of the OECD, the Convention is limited to active bribery of foreign public officials committed in order to obtain or retain business or other improper advantage in the conduct of international business.

In 1999, it was the CoE’s turn to adopt its Instruments against Corruption, a criminal convention and a civil one (respectively adopted on 27 January and 4 November), dealing with active and passive corruption, in the more general terms, and covering national and international aspects.

Finally, the United Nations Convention against Corruption (UNCAC) was adopted in Merida, Mexico on 31 October 2003; this global instrument symbolically concludes, at the global level, this phase of great impetus in the creation of legislative tools to fight corruption.

Beyond the establishment of legal instruments, different actors in the international community are also tackling the problem of corruption at different levels.

While the World Bank and the International Monetary Fund (IMF) have already been active on this issue for many years, the interest of the G-20 is more recent and culminated with the endorsement of an anti-corruption action plan at the Seoul Summit in November 2010.¹ The G-20 has also called upon FATF to address the problem of corruption from the specific angle of combating money laundering and terrorist financing.

III. Monitoring Mechanisms in Place

With the exception of the EU Convention, all the legal instruments mentioned above have been accompanied by a monitoring and evaluation mechanism.

1. The OECD Working Group on Bribery

It does not come as a surprise − taking into account the precedent of FATF being active within the framework of the same organisation – that the OECD Working Group on Bribery in International Business Transactions (WGB) appears to be the oldest and most experimented monitoring body in the field of anti-corruption.² It is the 1997 Convention itself (Art. 12, “Monitoring and Follow-up”), which provides that the parties “shall co-operate in carrying out a programme of systematic follow-up to monitor and promote the full implementation” of the Convention within the framework of the OECD Working Group on Bribery in International Business Transactions, which pre-existed the Convention itself and negotiated the instrument until its adoption.

Nowadays, the WGB, which is composed of representatives from the 38 state parties to the Convention, is responsible for monitoring the implementation and enforcement not only of the OECD Anti-Bribery Convention but also of the recently adopted 2009 Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions (2009 Anti-Bribery Recommendation) and related instruments. Observers (EU, World Bank) and ad hoc observers (states that are not party to the Convention) are also invited to attend the meetings of the WGB.

The evaluation procedures are conducted by collecting the information through questionnaires, on-site country visits (during which evaluation teams to ask questions in discussions with domestic representatives of public authorities, civil society, and other relevant stakeholders), and, ultimately, draft evaluation reports. These reports, which are examined, discussed, and adopted by the Plenary of the Working Group, contain recommendations addressed to the evaluated countries in order to improve their level of compliance with the Convention. Measures adopted to implement recommendations are subsequently assessed in a separate follow-up procedure.

The WGB is actually conducting its 3rd round of evaluations (Phase 1 was dedicated to evaluation of the adequacy of a country’s legislation to implement the Convention, Phase 2 assessed whether a country was applying this legislation effectively), which focuses on the issue of enforcement of the Convention, the 2009 Anti-Bribery Recommendation, and outstanding recommendations stemming from Phase 2.

The activities of the WGB are driven by the Management Group (MG), which helps prepare the ground for discussions, makes proposals for the Programme of Work and Budget, and helps structure plenary discussions. Membership in the MG consists of up to eight WGB experts, including the Chair and Vice Chair, and should comprise differences in legal systems and adequate geographical representation.

OECD member countries and countries that are party to the Convention are also called upon to volunteer as “regional mentors” to non-members to the Convention in their region (e.g., Japan for the Asia-Pacific region; Turkey for countries in Central Asia or the Middle East, etc.).

2. The Group of States against Corruption (GRECO)

The monitoring and evaluation mechanism established by the CoE (GRoupe d’Etats contre la COrruption − GRECO) was created in 1999, parallel to the adoption of the two Conventions against corruption, in order to monitor states’ compliance with the organisation’s anti-corruption standards. As also stated by the European Commission, GRECO represents “the most inclusive existing anti-corruption monitoring mechanism at European level, with participation of all EU Member States.”³

Unlike the WGB, the establishment of GRECO was not provided by the Conventions but decided by means of a separate instrument called “enlarged partial agreement”; this means that its membership is not limited to Council of Europe Member States but open to any state that took part in the elaboration of the enlarged partial agreement or which becomes a party to one of the anti-corruption Conventions; at present, GRECO comprises 49 Member States (48 states are members of the Council of Europe and the United States of America).

Notwithstanding the fact that the activities of the Group are focused on the mutual evaluation process, GRECO also provides a forum for the sharing of best practice in the prevention, detection of, and fight against corruption. As is the case of the WGB of the OECD, beyond its representatives in the Group, each Member has to provide GRECO with a list of experts available for participation in GRECO’s evaluations. Other CoE bodies, the WGB, the United Nations Office on Drugs and Crime (UNODC), the OAS, and the International Anti-Corruption Academy (IACA) benefit from their status as observers in GRECO, while the European Union has already announced its intention to join GRECO with a full membership.⁴

GRECO’s evaluation procedures are very similar to those already described above for the WGB. The subsequent implementation of the recommendations is also assessed by GRECO under a separate compliance procedure. Since January 2007, GRECO has put in place a 3rd evaluation round, which deals with two distinct themes: the first one covers the incriminations provided for in the Criminal Law Convention on Corruption and its Additional Protocol while the second deals with the issue of transparency of party funding.

The enlarged agreement also provides for the establishment of a “bureau” with a maximum of seven members. They are assigned with a number of steering functions, which, in this case, also do not differ in a substantial manner from the competences of the MG of the WGB.

3. Review of the UNCAC (IRG) and the OAS Convention (MESICIC)

After the entry into force of the Merida Convention (December 2005), in November 2009, in Doha, the Conference of the States Parties to UNCAC adopted, through a resolution based on Art. 63, para. 7 of the Convention (according to which the Conference should establish any appropriate mechanism or body to assist in the effective implementation of the Convention), the terms of reference of the Mechanism for the Review of Implementation of the Convention. It decided that an “Implementation Review Group” (IRG) shall be in charge of continuing the work already undertaken by the Working Group on Technical Assistance.⁵

Each review phase shall be composed of two review cycles of five years each. During the first cycle, the review will cover chapters III (criminalization and law enforcement) and IV (international cooperation) and, during the second cycle, chapters II (preventive measures) and V (asset recovery).

The IRG is currently conducting the first review cycle, which should be completed within 4 years.

As to the Inter-American Convention, although it was the first to be adopted, only in 2002 did the OAS introduce a mechanism to evaluate its implementation (the name of this follow-up mechanism is MESICIC).

IV. Evaluating the Evaluators…?

It is certainly not an easy task to come to a judgement on this panoply of mechanisms.

The concept does not differentiate substantially among them: a mutual evaluation process aimed to assess the level of implementation by each party of the instruments of reference through “peer pressure.”

What can help distinguish one from another, from the perspective of the procedure, is the use of on-site visits in the country under evaluation. Such visits are systematic in the WGB and GRECO but only optional in the system of the United Nations.

The subject of the evaluations also differs, depending on the specific scope of each instrument to be assessed (the WGB’s mandate, for instance, only covers active bribery in international business transactions). The wider the scope, the better (potentially but not necessarily) the opportunity for the evaluators to express their views on the overall system of jurisdiction under examination.

The “pressure” on the parties will depend on many different factors. Hence, it will certainly be more effective in those cases in which the publication of the evaluation report is systematic (for instance, this is the case in the OECD and in the Council of Europe but not in the UN mechanism). Also, the determination shown by the body in publishing “thorough” press communiqués, where needed, instead of passepartout ones, can serve as a deterrent to non-compliant states.

In a recently published Communication on Fighting Corruption in the EU,⁶ the European Commission renders its judgment on each of the mechanisms described above.

After having recognised that they provide an added value and “an impetus for state parties to implement and enforce anti-corruption standards,” the Commission analysed their possible impact at the EU level. It affirms that each of these mechanisms has factors limiting their potential to cope with the problems of corruption at the EU level.

In such an analysis, the intergovernmental GRECO evaluation process and its follow-up mechanism would benefit neither from a “limited visibility” nor would it allow for comparative analysis or for the exchange of best practices and peer learning.

Unfortunately, the OECD’s Convention only focuses on the specific issue of bribery of foreign public officials in international business transactions, and could not be extended to other areas of importance in the fight against corruption in the EU.

Coming to the UNCAC, to which EU became a party in September 2008,⁷ the potential of the instrument would be limited by its merely intergovernmental nature, the long duration of the review exercise, and the very disparate anti-corruption standards among the state parties.

V. Towards an (Additional) EU Mechanism…?

The EU was already familiar with mutual evaluation procedures; Joint Action 97/827/JHA⁸ established a mechanism for evaluating the application and implementation at the national level of international undertakings in the fight against organised crime (at present in its sixth round), while Council Decision 2002/996/JHA introduced a similar mechanism in the fight against terrorism.⁹

Moving from the loopholes allegedly detected in the monitoring mechanisms already in place, the European Commission has now announced its intention to establish a specific EU monitoring and assessment mechanism, the “EU Anti-Corruption Report,”¹⁰ to be combined with EU participation in GRECO, announced by a sister Communication.¹¹ The publication of the first report should follow in 2013.

In the Commission’s view, a mandate for such action is to be found in the “Stockholm Programme.”¹² Point 4.4.5 of the Programme in effect provides for the development of indicators to measure efforts in the fight against corruption, but this activity should take place “on the basis of existing systems and common criteria” and in “close cooperation” with GRECO.

To prevent and tackle any criticism on this subject, the Communication explicitly states that “when preparing the EU Anti-Corruption Report, the Commission will cooperate with existing monitoring and evaluation mechanisms to avoid additional administrative burdens for Member States and duplication of efforts.” It would be highly desirable if this spirit of self-restraint is affirmed when the moment comes to transform ideas into practice.

In the intention of the Commission, the report will include a first section focusing on specific aspects of the fight against corruption in the EU, including thematic case studies, examples of best practices, and recommendations.

A second component should be made of analyses of individual Member States, in a similar fashion to the country reports of GRECO or the WGB. They should also include tailor-made recommendations elaborated on the basis of existing monitoring mechanisms and evidence made available from other relevant sources; in particular, the findings of the OECDۥs WGB will be used as an“input”for the EU Anti-Corruption Report.

A third section, based on Eurobarometer’s survey and other relevant sources of information, should illustrate trends at the EU level in the perception of corruption among European citizens.

A number of experimental or brand new indicators should be used. New indicators will be developed, in particular, where relevant standards are not yet made available in an already existing instrument or where higher standards are required at the EU level.

The Communication also specifies that “the need for additional EU policy initiatives, including the approximation of criminal law in the field of corruption” will be considered by the Commission later, after analysis of the findings of the EU Anti-Corruption Report.

VI. Need (or Opportunity) for More Coordination…?

It is not difficult to imagine that officials in the Ministries of Justice could easily refrain from showing an excess of enthusiasm should they be confronted with an additional monitoring system in the field of corruption.

Filling in and answering questionnaires, organising or attending on-site visits, making counter-proposals and defending amendments in the course of the elaboration of the draft reports, are all activities that are too demanding and time-consuming to be indefinitely multiplied with additional monitoring mechanisms.

While a specific action at the EU level − after many years of inertia − that is in line with the high standards and specific needs of the Union is certainly to be welcomed, it is also more than desirable that the Commission contain its engagement to avoid additional administrative burdens and duplication of efforts. Only the concrete experience gained along with the first EU Report in 2013 will indicate whether this will be respected.

Going beyond the new EU impetus, the coexistence of so many monitoring and evaluation mechanisms (OECD, Council of Europe, UN, etc.) certainly confronts the international community with the question of how to try to ensure an acceptable degree of coordination among them.

It seems that there are a lot of elements that could be taken from the different reports for use in evaluations of the same country conducted in other fora, at least when it comes to the assessment of statistics or collection of court cases. According to concrete experience, cross references to other evaluation reports do not seem to be the rule among the different mechanisms despite the impressive amount of information that could be extracted from each of them. Questionnaires addressing the country under an evaluation could, for instance, incorporate some relevant assessments taken from other recent evaluations and be submitted for possible revision.

The review cycles also do not seem to give realistic consideration to ongoing activities elsewhere. Both OECD and GRECO are conducting a third cycle of evaluations (which, unsurprisingly, comes after a 1st and a 2nd cycle), while a 4th evaluation round was already launched by GRECO in January 2012.

To use Italy as an example, during all of 2011 and the first part of 2012, the country has had to go through the compliance procedure referred to by the 2nd evaluation round conducted by GRECO in 2008, the Phase 3 evaluation by the WGB of the OECD, and the entire 3rd evaluation round by GRECO.

Also, attendance at the respective plenary meetings of the different bodies by representatives of other mechanisms is not really customary or pro-active. Each representative often limits his participation to the time strictly necessary to present the ongoing activities of the organisation he belongs to, at the same time refraining from entering into the depth of the discussions (provided that they would be entitled to under the statute of the body).¹³ Just to limit the analysis to GRECO (while UNODC, OECD, IACA, and OAS have the status of observers to GRECO), the meeting reports¹⁴ show that their representatives are very often mentioned as “excused” in the list of participants.

It could be argued that possible duplications could also be found, for instance, in the money laundering field where the FATF monitoring process coexists alongside the “Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism” (MONEYVAL) that has been active since 1997 within the framework of the Council of Europe. The difference is that MONEYVAL particularly (but not exclusively) monitors Member States of the Council of Europe that are not members of the FATF. In the field of the fight against corruption, the involvement of the same countries in different monitoring mechanisms occurs quite frequently.

VIII. Conclusions

Last but certainly not least in this fragmented scenario, the advent of the EU Anti-Corruption Report could represent either another additional monitoring mechanism − though hidden under a more neutral name − or otherwise serve as the kick-off for a new experience, depending on the effective implementation by the European Commission of its will to “cooperate with existing…mechanisms to avoid additional administrative burdens…and duplication of efforts.”

If this model is to prove effective, other bodies could feel incited to follow, suit and maximise the use and updating of “outsourced” material instead of producing new analyses (which could also sometimes risk conflict with previous ones).

The creation of a sort of “platform,” composed of the different subjects playing an active role in the field of anti-corruption could also be envisaged. Such a platform could be made up of representatives from the steering bodies already established under each mechanism and be hosted by the UN or under a more neutral “umbrella” to be determined (could the European Anti-Fraud Office, OLAF, consider playing a role?).

Far from running the risk of creating a sort of additional super-monitoring mechanism, such a platform should constitute a forum where it would be possible to coordinate the respective action of each body, in particular in order to help plan the evaluations processes with full respect to the specificities of each. It could also help in assessing the more factual and descriptive parts of the evaluation reports prepared according to the different procedures, at the same time preventing the risk of possible inconsistencies among documents related to the same country.

A “round table,” where all the actors involved in the efforts of the international community in a given sector could meet and coordinate their action on a genuine equal footing basis, could also be a test and become a valuable precedent for other, similar situations. It could be felt that there is a need to go further but in a less dispersed order.