I. Introduction

The President of the EU Commission Ursula von der Leyen announced new actions to counter corruption in her 2022 State of the Union speech.¹ The anti-corruption package was later adopted by the Commission in May 2023.² The timing could not have been more appropriate, especially considering recent corruption cases that have shaken the heart of EU institutions, allegedly involving decision-makers in the European Parliament, their close advisers, and decision-influencers.³ Overall, the 2023 Eurobarometer survey data indicates that the majority of Europeans think corruption is a concrete problem.⁴ The anti-corruption package includes a Commission proposal for a directive to combat corruption by means of criminal law⁵ and a joint Communication (by the Commission and the High Representative of the Union for foreign affairs and security policy), with a proposal to establish a regime of sanctions against serious acts of corruption committed outside the EU.⁶ It also features the creation of the EU Network against corruption, which was then established in September 2023, whose key task will be to support EU-wide corruption risk-mapping, which will inform the future EU anti-corruption strategy.⁷

The anti-corruption package consolidates the existing framework composed of different EU anti-corruption legal texts, actions, and programmes. Anti-corruption is also dealt with in the Rule of Law Report⁸ as well as in some measures of the Recovery and Resilience Facility⁹ (which may be used to fund actions implementing recommendations stemming from the “European semester” reports).¹⁰ In addition, in the context of the conditionality rules,¹¹ the Commission may ask the Council of the EU to issue budgetary measures (e.g., suspension of payments or financial corrections) against Member States violating the Rule of Law, including its anti-corruption pillar, when it “directly affects or seriously risks affecting the sound financial management of the Union budget or of the financial interests of the Union in a sufficiently direct way”. In parallel, in June 2023, the Commission presented a proposal for establishing an EU ethics body,¹² with a view to creating a common set of ethics standards and types of conduct¹³ for members of the institutions,¹⁴ thereby preventing possible corruption-related malpractices.

II. The Proposal for the Directive on Combating Corruption

The EU legal framework on combatting corruption is considered fragmented, outdated and limited in scope.¹⁵ The current EU legal measures cover anti-bribery in private and public sectors.¹⁶ A number of corruption-related offences, also listed in the UN Convention Against Corruption (UNCAC), have yet to be harmonised at the EU level. As a result, the possible cross-border dimension of corruption is currently not properly addressed. At the operational level, differences in criminalisation leave loopholes regarding both specific types of corruption offences and corruption enablers. As indicated in various studies,¹⁷ gaps in and limited enforcement of existing legislation, together with the need for cooperation and capacities to prosecute cross-border cases, call for both the definition of common standards across the EU and more efficient law enforcement cooperation in corruption-related cases. Additionally, the lack of comparable statistics on corruption risks, cases and impact renders evidence-based policy development, both at the national and European levels, more difficult. Furthermore, the fight against corruption at the national level remains scattered among several law enforcement agencies, triggering concerns regarding national and cross-border institutional and operational cooperation.

The legislative proposal on the fight against corruption by means of criminal law is intended to update the EU legal framework, including through the integration of internationally binding standards, such as those of the UNCAC, to which both the EU and all EU Member States are parties. The proposal seeks to ensure that all forms of corruption are criminalised in all Member States; that legal persons may also be held responsible for such offences; and that these offences incur effective, proportionate and dissuasive penalties. The legal basis for the proposal for the Directive is based on three provisions of the Treaty on the Functioning of the European Union (TFEU): a) Article 83 TFEU, which lists corruption as one of the “euro-crimes”; b) Article 83(2) TFEU as a legal basis for the proposed alignment with the so called “PIF Directive” (Directive no 1371 of 2017);¹⁸ and c) Article 82(1)(d) TFEU, which constitutes a legal basis for cooperation instruments.

The focus of the proposed Directive is threefold. First, it aims to consolidate existing anti-corruption rules into one single legal act. It does so by harmonising the definition of corruption offences as per the UNCAC. This covers bribery, misappropriation, trading in influence, abuse of functions, obstruction of justice and illicit enrichment related to corruption offences. The proposal also approximates the common minimum level of criminal sanctions for both individuals and legal persons¹⁹ as well as for aggravating and mitigating circumstances.²⁰

Secondly, the proposal includes measures for the prevention of corruption, which Member States should adopt in order to build an effective system for integrity system. These measures consist in awareness-raising campaigns, research and education programmes taken to mitigate incentives for corruption. The aim is to ensure that the public sector is made accountable. As a consequence, Member States are to establish qualitative transparency through access to information of public interest, the declaration of possible conflicts of interests and their mitigating measures, asset declaration systems for public officials, and frame contacts between the private and the public sectors; they should also have specialised anti-corruption bodies that are adequately equipped (with financial, human, and technical resources), and suitably trained.²¹

Thirdly, the proposal is to facilitate the effective investigation and prosecution of corruption cases. Competent law-enforcement agencies, services, as well as prosecuting and investigating entities should thus be properly resourced and able to use dedicated investigative tools.²² This also covers the adoption of minimum rules on the statute of limitations, notably to prevent foreclosure in complex cases requiring lengthy investigations. Lastly, the proposal also addresses the misuse of privileges and immunity when aimed to prevent criminal investigations.²³

III. Outlook

Reducing the demand side of corruption and ensuring deterrent penalties for criminals are expected to increase the overall level of security and disrupt organised crime activities. The increased level of harmonisation in the field of anti-corruption is also expected to alleviate obstacles to cross-border cooperation in criminal matters. The question remains as to what extent the content of the proposal will be maintained in the final text of the directive that still has to be approved by the two EU co-legislators, i.e. the Council of the European Union and the European Parliament. Negotiations over the proposal are now ongoing. The ambitious expectation is to reach an agreement on the text before the end of the term of the current European Parliament’s mandate, set for June 2024. Member States’ initial reactions have been relatively cautious: beyond conventional criticism concerning the legal basis, some decision-makers underlined the text’s weak proportionality in addressing both preventive and repressive measures.²⁴ In exchange for their support on the draft directive against corruption, Member States may ask for more stringent measures to prevent, investigate, and prosecute integrity cases inside the EU institutions.²⁵ The recent bribery scandal allegedly involving EU officials,²⁶ and the fact that national authorities acted first to detect and investigate this case, may be a reason used to call for a larger competence to be allocated to the European Public Prosecutor’s Office.²⁷