Procedure : 2012/0193(COD)
Document stages in plenary
Document selected : A7-0251/2014

Texts tabled :

A7-0251/2014

Debates :

Votes :

PV 16/04/2014 - 7.32
CRE 16/04/2014 - 7.32

Texts adopted :

P7_TA(2014)0427

REPORT     ***I
PDF 351kWORD 433k
25 March 2014
PE 524.832v02-00 A7-0251/2014

on the proposal for a directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law

(COM(2012)0363 – C7-0192/2012 – 2012/0193(COD))

Committee on Budgetary Control

Committee on Civil Liberties, Justice and Home Affairs

Rapporteurs: Ingeborg Gräßle, Juan Fernando López Aguilar

Rapporteur for the opinion (*):

Tadeusz Zwiefka, Committee on Legal Affairs

(*) Associated committee – Rule 50 of the Rules of Procedure

(Joint committee meetings – Rule 51 of the Rules of Procedure)

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS
 OPINION of the Committee on Legal Affairs (*)
 PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law

(COM(2012)0363 – C7-0192/2012 – 2012/0193(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to Parliament and the Council (COM(2012)0363),

–   having regard to Article 294(2) and Article 325(4) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7-0192/2012),

–   having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,

–   having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–   having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–   having regard the opinion of the Court of Auditors of 15 November 2012(1),

–   having regard to the opinion of the Committee of the Regions of 10 October 2012(2),

–   having regard to Rules 55 and 37 of its Rules of Procedure,

–   having regard to the joint deliberations of the Committee on Budgetary Control and the Committee on Civil Liberties, Justice and Home Affairs under Rule 51 of the Rules of Procedure,

–   having regard to the report of the Committee on Budgetary Control and the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Legal Affairs (A7-0251/2014),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment  1

Proposal for a directive

Citation 1

Text proposed by the Commission

Amendment

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 325 (4) thereof,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 83(2) thereof,

Amendment  2

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2) In order to ensure effective, proportionate and dissuasive protection of the Union's financial interests, criminal law in the Member States should continue to complement the protection under administrative and civil law for the most serious types of fraud-related conduct in this field, whilst avoiding inconsistencies, both within and among these areas of law.

(2) In order to ensure effective, proportionate and dissuasive protection against the most serious types of fraud-related conduct, and to ensure that the Union’s financial interests are optimally protected, measures adopted under administrative and civil law should be complemented by legislation under criminal law in the Member States, whilst avoiding inconsistencies, both within and among these areas of law.

Amendment  3

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3) The protection of the Union's financial interests calls for a common definition of fraud covering fraudulent conduct with respect to both expenditure and revenues at the expense of the EU budget.

(3) The protection of the Union's financial interests calls for a common definition of fraud covering fraudulent conduct with respect to expenditure, revenues, assets and liabilities at the expense of the Union budget, including borrowing and lending activities.

Amendment  4

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6) The Union's financial interests can be negatively affected where individual tenderers provide information to contracting or grant awarding authorities based on information unduly obtained directly or indirectly from the tendering body, with the aim of circumventing or skewing rules applicable to a public procurement or grant procedure. Such conduct is very similar to fraud, but does not necessarily need to constitute a full fraud offence on the side of the tenderer, since the provided bid may be completely in line with all requirements. Bid-rigging behaviour between tenderers violates Union competition rules and equivalent national laws; it is subject to public enforcement action and sanctions throughout the Union and should remain outside the scope of this Directive.

(6) The Union's financial interests can be negatively affected where individual tenderers provide information to contracting or grant awarding authorities based on information illegally obtained directly or indirectly from the tendering body, with the aim of circumventing or violating rules applicable to a public procurement or grant procedure. Such conduct is very similar to fraud, but does not necessarily need to bear all the hallmarks of a full fraud offence on the side of the tenderer, since the provided bid may meet all the necessary criteria. Bid-rigging behaviour between tenderers violates Union competition rules and equivalent national laws; it is subject to public enforcement action and sanctions throughout the Union and should remain outside the scope of this Directive.

Amendment  5

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

(8) Corruption constitutes a particularly serious threat against the Union's financial interests, which can in many cases also be linked to fraudulent conduct. A particular criminalisation in this area is therefore needed. It must be ensured that the relevant offences are covered by the definition irrespective of whether conduct is in breach of official duties or not. As regards the offences of passive corruption and misappropriation, there is a need to include a definition of public officials covering all relevant officials, whether appointed, elected or employed on the basis of a contract, holding a formal office, as well as persons exercising the function of providing service from government and other public bodies to citizens, or for the public interest in general, without holding a formal office, such as contractors involved in the management of EU funds.

(8) Corruption constitutes a particularly serious threat against the Union's financial interests, which can in many cases also be linked to fraudulent conduct. A particular criminalisation in this area is therefore needed. It must be ensured that the relevant offences are covered by the definition irrespective of whether conduct is in breach of official duties or not. As regards the offences of passive corruption and misappropriation, there is a need to include a definition of public officials covering all relevant officials, whether appointed, elected or employed on the basis of a contract, or holding a formal office in the Union, in the Member States or in third countries. Private persons are increasingly involved in the management of Union funds. In order to adequately protect Union funds from corruption and misappropriation, the definition of 'public official' for the purposes of this Directive therefore needs to cover also persons who do not hold a formal office, but who are none the less assigned, and who exercise, in a similar manner, a public-service function in relation to Union funds, such as contractors involved in the management of such funds.

Amendment  6

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9) The Union's financial interests can be negatively affected by certain types of conduct of a public official which aim at misappropriating funds or assets contrary to the purpose foreseen, and with the intention to damage the Union's financial interests. There is therefore a need to introduce a precise definition of offences covering such conduct.

(9) The Union's financial interests can be negatively affected by certain types of conduct of a public official which aim at misappropriating funds or assets contrary to the purpose foreseen, and with the intention to damage the Union's financial interests. There is therefore a need to introduce a precise and unambiguous definition of offences covering such conduct.

Amendment  7

Proposal for a directive

Recital 9 a (new)

Text proposed by the Commission

Amendment

 

(9a) With regard to the criminal offences committed by natural persons as defined in this Directive, it is necessary to establish intent in respect of all the elements comprised in those offences. Offences committed by natural persons which do not require intent are not covered by this Directive.

Amendment  8

Proposal for a directive

Recital 14 a (new)

 

Text proposed by the Commission

Amendment

(14a) While it is appropriate to introduce certain minimum levels of penalties in respect of the offences defined in this Directive, nothing herein should be taken as interfering with the prerogatives of the courts and judges of the Member States to use their discretion in individual cases.

Amendment  9

Proposal for a directive

Recital 14 b (new)

Text proposed by the Commission

Amendment

 

(14b) In order to ensure the coherence of Union law with respect to the protection of the Union's financial interests, it is appropriate to introduce certain minimum levels of penalties in respect of the offences defined in this Directive. This Directive lays down minimum rules. Member States should remain free to retain or introduce stricter penalties for such offences.

Amendment  10

Proposal for a directive

Recital 17

Text proposed by the Commission

Amendment

(17) Without prejudice to other obligations under Union law, there is a need for appropriate provision to be made for cooperation between Member States and the Commission to ensure effective action against the criminal offences defined in this Directive affecting the Union's financial interests, including exchange of information between the Member States and the Commission.

(17) Without prejudice to other obligations under Union law, there is a need for appropriate provision to be made for cooperation between Member States and the Commission to ensure effective action against the criminal offences defined in this Directive affecting the Union's financial interests, including exchange of information between the Member States, Eurojust, and the Commission.

Amendment  11

Proposal for a directive

Article 1

 

Text proposed by the Commission

Amendment

This Directive establishes necessary measures in the field of prevention of and fight against fraud and other illegal activities affecting the Union's financial interests by defining criminal offences and sanctions.

This Directive establishes necessary measures in the field of prevention of and fight against fraud and other illegal activities affecting the Union's financial interests by defining criminal offences and sanctions with a view to affording effective and equivalent protection in the Member States and in Union institutions, bodies, offices and agencies and boosting the credibility of Union institutions and initiatives.

Amendment  12

Proposal for a directive

Article 2 – introductory part

 

Text proposed by the Commission

Amendment

For the purposes of this Directive, ‘the Union's financial interests’ means all revenues and expenditures covered by, acquired through, or due to:

For the purposes of this Directive, ‘the Union's financial interests’ means all the assets and liabilities managed by or on behalf of the Union and its institutions, bodies and agencies; and all its financial operations, including borrowing and lending activities, as well as, in particular, all revenues and expenditures covered by, acquired through, or due to:

Justification

This definition is wider and includes assets and liabilities as well as borrowing and lending activities.

Amendment  13

Proposal for a directive

Article 2 – point b

Text proposed by the Commission

Amendment

(b) the budgets of institutions, bodies, offices and agencies established under the Treaties or budgets managed and monitored by them.

(b) the budgets of institutions, bodies, offices and agencies established pursuant to the Treaties or budgets directly or indirectly managed and monitored by them.

Amendment  14

Proposal for a directive

Article 4 – paragraph 1

 

Text proposed by the Commission

Amendment

1. Member States shall take the necessary measures to ensure that any provision of information, or failure to provide such information, to contracting or grant awarding entities or authorities in a public procurement or grant procedure involving the Union's financial interests, by candidates or tenderers, or by persons responsible for or involved in the preparation of replies to calls for tenders or grant applications of such participants, when committed intentionally and with the aim of circumventing or skewing the application of the eligibility, exclusion, selection or award criteria, is punishable as a criminal offence.

1. Member States shall take the necessary measures to ensure that any provision of information, or failure to provide such information, to contracting or grant awarding entities or authorities in a public procurement or grant procedure involving the Union's financial interests, by candidates or tenderers, or by persons responsible for or involved in the preparation of replies to calls for tenders or grant applications of such participants, when committed intentionally and with the aim of circumventing or skewing the application of the eligibility, exclusion, selection or award criteria, or of distorting or destroying natural competition among bidders, is punishable as a criminal offence.

Justification

It is important to refer explicitly to irregular activities related to public tenders.

Amendment  15

Proposal for a directive

Article 4 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall take the necessary measures to ensure that money laundering as defined in Article 1 (2) of Directive 2005/60/EC of the European Parliament and of the Council33 involving property derived from the offences covered by this Directive is punishable as a criminal offence.

2. Member States shall take the necessary measures to ensure that money laundering as defined in Article 1(2) of Directive 2005/60/EC of the European Parliament and of the Council33 involving property or income derived from the offences covered by this Directive is punishable as a criminal offence.

__________________

__________________

33 OJ L 309, 25.11.2005, p. 15.

33 OJ L 309, 25.11.2005, p. 15.

Amendment  16

Proposal for a directive

Article 4 – paragraph 3

Text proposed by the Commission

Amendment

3. Member States shall take the necessary measures to ensure that the following conduct, when committed intentionally, is punishable as a criminal offence:

3. Member States shall take the necessary measures to ensure that passive corruption and active corruption, when committed intentionally, are punishable as criminal offences.

(a) the action of a public official, who, directly or through an intermediary, requests or receives advantages of any kind whatsoever, for himself or for a third party, or accepts a promise of such an advantage, to act or refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union's financial interests (passive corruption);

(a) For the purposes of this Directive, passive corruption shall consist of the action of a public official, who, directly or through an intermediary, requests or accepts in advance advantages of any kind whatsoever or a promise of such an advantage, for himself or for a third party, for acting, delaying action or refraining from acting in accordance with his duty or in the exercise of his functions, whether or not in breach of his official obligations, in a way which damages or is likely to damage the Union's financial interests.

(b) the action of whosoever promises or gives, directly or through an intermediary, an advantage of any kind whatsoever to a public official for himself or for a third party for him to act or refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union's financial interests (active corruption).

(b) For the purposes of this Directive, active corruption shall consist of the action of whosoever promises, offers or gives, directly or through an intermediary, an advantage of any kind whatsoever to a public official for himself or for a third party for him to act, to delay action or to refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union's financial interests, or for having performed those conducts in the past.

Amendment  17

Proposal for a directive

Article 4 – paragraph 4

 

Text proposed by the Commission

Amendment

4. Member States shall take the necessary measures to ensure that the intentional act by a public official to commit or disburse funds, or appropriate or use assets, contrary to the purpose for which they were intended and with the intent to damage the Union's financial interests, is punishable as a criminal offence (misappropriation).

4. Member States shall take the necessary measures to ensure that misappropriation, when committed intentionally, is punishable as a criminal offence.

 

For the purposes of this Directive, misappropriation shall consist of an act by a public official to commit or disburse funds, or appropriate or use assets, contrary to the purpose for which they were intended, and which damages the Union's financial interests.

Amendment  18

Proposal for a directive

Article 4 – paragraph 5

Text proposed by the Commission

Amendment

For the purpose of this Article, 'public official' means:

For the purpose of this Article, 'public official' means:

(a) any person exercising a public service function for the Union or in Member States or third countries by holding a legislative, administrative or judicial office;

(a) any Union or national official, including any national official of another Member State and any national official of a third country.

 

The term 'Union official' means:

 

(i) any person who is an official or other contracted employee within the meaning of the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union ('Staff Regulations'),

 

(ii) any person seconded to a Union institution, body, office or agency by the Member States or by any public or private body, who carries out functions equivalent to those performed by Union officials or other servants.

 

Members of bodies set up in accordance with the Treaties and the staff of such bodies, offices or agencies shall be treated as Union officials, inasmuch as the Staff Regulations do not apply to them;

 

The term 'national official' shall be understood by reference to the definition of 'official' or 'public official' in the national law of the Member State or third country in which the person in question performs the function.

 

Nevertheless, in the case of proceedings involving an official of a Member State, or a national official of a third country, initiated by another Member State, the latter shall not be bound to apply the definition of 'national official' except in so far as the definition is compatible with its national law;

(b) any other person exercising a public service function for the Union or in Member States or third countries, not holding such an office, participating in the management of or decisions concerning the Union's financial interests.

(b) any other person assigned and exercising a public service function involving the management of, or decisions concerning, the Union's financial interests in Member States or third countries.

Justification

This amendment is based on the current definition of official included in the First Protocol to the PIF Convention in force which is well known and accepted by Member States.

Amendment  19

Proposal for a directive

Article 5 – paragraph 1

 

Text proposed by the Commission

Amendment

1. Member States shall take the necessary measures to ensure that inciting, aiding or abetting the criminal offences referred to in Title II is punishable as a criminal offence.

1. Member States shall take the necessary measures to ensure that inciting, aiding or abetting the commission of any of the criminal offences referred to in Articles 3 and 4 is punishable as a criminal offence.

Justification

Technical change.

Amendment  20

Proposal for a directive

Article 5 – paragraph 2

 

Text proposed by the Commission

Amendment

2. Member States shall take the necessary measures to ensure that an attempt to commit the criminal offence referred to in Article 3 or in Article 4, paragraph 4, is punishable as a criminal offence.

2. Member States shall take the necessary measures to ensure that an attempt to commit any of the criminal offences referred to in Article 3 and in Article 4(4) is punishable as a criminal offence.

Justification

Technical change.

Amendment  21

Proposal for a directive

Article 6 – paragraph 1 – introductory part

 

Text proposed by the Commission

Amendment

1. Member States shall take the necessary measures to ensure that legal persons can be held liable for any of the criminal offences referred to in Title II committed for their benefit by any person, acting either individually or as part of an organ of the legal person, and having a leading position within the legal person, based on:

1. Member States shall take the necessary measures to ensure that legal persons can be held liable for any of the criminal offences referred to in Articles 3, 4 and 5 committed for their benefit by any person, acting either individually or as part of an organ of the legal person, and having a leading position within the legal person, based on:

Justification

Technical change.

Amendment  22

Proposal for a directive

Article 6 – paragraph 2

 

Text proposed by the Commission

Amendment

2. Member States shall also take the necessary measures to ensure that legal persons can be held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission, of any of the criminal offences referred to in Title II for the benefit of that legal person by a person under its authority.

2. Member States shall also take the necessary measures to ensure that legal persons can be held liable where the lack of supervision or control by a person referred to in paragraph 1 has made possible the commission of any of the criminal offences referred to in Articles 3, 4 and 5 for the benefit of that legal person by a person under its authority.

Justification

Technical change.

Amendment  23

Proposal for a directive

Article 6 – paragraph 3

 

Text proposed by the Commission

Amendment

3. Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators of the criminal offences referred to in Title II or criminally liable under Article 5.

3. Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators of the criminal offences referred to in Articles 3 and 4 or criminally liable under Article 5.

Justification

Technical change.

Amendment  24

Proposal for a directive

Article 7 – paragraph 1

 

Text proposed by the Commission

Amendment

1. As regards natural persons, Member States shall ensure that the criminal offences referred to in Title II shall be punishable by effective, proportionate and dissuasive criminal penalties, including fines and imprisonment as specified in Article 8.

1. As regards natural persons, Member States shall ensure that the criminal offences referred to in Articles 3, 4 and 5 are punishable by effective, proportionate and dissuasive criminal penalties, including fines and imprisonment as specified in Article 8.

Justification

Technical change.

Amendment  25

Proposal for a directive

Article 7 – paragraph 2

 

Text proposed by the Commission

Amendment

2. In cases of minor offences involving damages of less than EUR 10,000 and advantages of less than EUR 10,000 and not involving particularly serious circumstances, Member States may provide instead for other than criminal penalties.

2. In cases of offences involving damages of less than EUR 5 000 and advantages of less than EUR 5 000 and not involving aggravating circumstances, Member States may provide instead for the imposition of sanctions other than criminal penalties.

Amendment  26

Proposal for a directive

Article 7 – paragraph 3

 

Text proposed by the Commission

Amendment

3. Paragraph 1 shall be without prejudice to the exercise of disciplinary powers by the competent authorities against public officials.

3. Paragraph 1 of this Article shall be without prejudice to the exercise of disciplinary powers by the competent authorities against public officials, as defined in Article 4(5).

Amendment  27

Proposal for a directive

Article 8 – paragraph 1 – subparagraph 1 – point a

Text proposed by the Commission

Amendment

(a) a minimum penalty of at least 6 months imprisonment ;

deleted

Justification

Minimum penalties do not respect the diversity of legal systems and the need for judicial discretion. Introducing them here would also not be consistent with the position Parliament has taken as regards the draft Directive on the protection of the euro and other currencies against counterfeiting in criminal law

Amendment  28

Proposal for a directive

Article 8 – paragraph 1 – subparagraph 2 – point a

Text proposed by the Commission

Amendment

(a) a minimum penalty of at least 6 months imprisonment;

deleted

Justification

Minimum penalties do not respect the diversity of legal systems and the need for judicial discretion. Introducing them here would also not be consistent with the position Parliament has taken as regards the draft Directive on the protection of the euro and other currencies against counterfeiting in criminal law

Amendment  29

Proposal for a directive

Article 8 – paragraph 1 – subparagraph 2 a (new)

Text proposed by the Commission

Amendment

 

This paragraph shall not affect the discretion of courts and judges in Member States in determining the most appropriate and proportionate sentence in any individual case.

Amendment  30

Proposal for a directive

Article 8 – paragraph 2

 

Text proposed by the Commission

Amendment

2. Member States shall take the necessary measures to ensure that the criminal offences referred to in Title II shall be punishable by a maximum penalty of at least 10 years of imprisonment where the offence was committed within a criminal organisation in the sense of Framework Decision 2008/841.

2. Member States shall take the necessary measures to ensure that the criminal offences referred to in Articles 3, 4 and 5 are punishable by a maximum penalty of at least 10 years of imprisonment where the offence was committed within a criminal organisation within the meaning of Framework Decision 2008/841.

Amendment  31

Proposal for a directive

Article 8 a (new)

 

Text proposed by the Commission

Amendment

 

Article 8a

 

Aggravating circumstances

 

Member States shall take the necessary measures to ensure that, where it is established that a criminal offence as referred to in Articles 3, 4 or 5 has been committed within a criminal organisation within the meaning of Framework Decision 2008/841, that fact is treated as an aggravating circumstance for sentencing purposes.

Justification

It is better to consider this case as an aggravating circumstance then a different criminal offence.

Amendment  32

Proposal for a directive

Article 9 – point a a (new)

Text proposed by the Commission

Amendment

 

(aa) temporary or permanent exclusion from Union tender procedures;

Amendment  33

Proposal for a directive

Article 9 a (new)

 

Text proposed by the Commission

Amendment

Article 9a

 

Ne bis in idem rule

 

Member States shall apply in their national criminal law the 'ne bis in idem' rule, under which a person whose trial has been completed in a Member State may not be prosecuted in another Member State in respect of the same facts, provided that, if a penalty was imposed, it has been enforced, is in the process of being enforced or may no longer be enforced under the laws of the sentencing State.

Amendment  34

Proposal for a directive

Article 11 – paragraph 1

 

Text proposed by the Commission

Amendment

1. Member States shall take the necessary measures to establish their jurisdiction over the criminal offences referred to in Title II where:

1. Member States shall take the necessary measures to establish their jurisdiction over the criminal offences referred to in Articles 3, 4 and 5 where:

(a) the offence is committed in whole or in part within their territory; or

(a) the offence is committed in whole or in part within their territory;

(b) the offender is one of their nationals.

(b) the offender is one of their own nationals or is resident in their territory; or

 

(c) the offender is subject to the Staff Regulations, or was subject to the Staff Regulations at the time of the offence.

Justification

The amendment of paragraph 1(b) aims to widen the scope of the Directive. The introduction of a third category of offender in paragraph 1(c) reflects the OLAF operational experience: officials with non-EU nationalities and not on the EU territory (but in delegations) should be included in the PIF jurisdiction.

Amendment  35

Proposal for a directive

Article 13

 

Text proposed by the Commission

Amendment

This Directive shall be without prejudice to the recovery of sums unduly paid in the context of the commission of the criminal offences referred to in Title II.

This Directive shall be without prejudice to the recovery of sums unduly paid in the context of the commission of the criminal offences referred to in Articles 3, 4 and 5.

 

Member States shall take the necessary measures to ensure the prompt recovery of such sums and their transfer to the Union budget, without prejudice to the relevant Union sector-specific rules on financial corrections and recovery of amounts unduly spent. Member States shall also keep regular records of the sums recovered and shall inform the relevant Union institutions or bodies about those sums, or, where they have not been recovered, of the reasons for such non-recovery.

Amendment  36

Proposal for a directive

Article 15 – title

Text proposed by the Commission

Amendment

Cooperation between the Member States and the European Commission (European Anti-Fraud Office)

Cooperation

Justification

Justification: For the purpose of this Directive, cooperation should not be limited to cooperation between Member States and Commission but encompass as well the cooperation between the Member States themselves

Amendment  37

Proposal for a directive

Article 15 – paragraph 1

Text proposed by the Commission

Amendment

1. The Member States and the Commission shall cooperate with each other in the fight against the criminal offences referred to in Title II. To that end the Commission shall lend such technical and operational assistance as the competent national authorities may need to facilitate coordination of their investigations.

1. Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal matters, the Member States, Eurojust and the Commission shall, within their respective competences, cooperate with each other in the fight against the criminal offences referred to in Articles 3, 4 and 5. To that end, the Commission and, where appropriate Eurojust, shall lend such technical and operational assistance as the competent national authorities may need to facilitate coordination of their investigations.

Amendment  38

Proposal for a directive

Article 15 – paragraph 2

 

Text proposed by the Commission

Amendment

2. The competent authorities in the Member States may exchange information with the Commission so as to make it easier to establish the facts and to ensure effective action against the criminal offences referred to in Title II. The Commission and the competent national authorities shall take account in each specific case of the requirements of investigation secrecy and data protection. To that end, a Member State, when supplying information to the Commission, may set specific conditions covering the use of information, whether by the Commission or by another Member State to which that information may be passed.

2. The competent authorities in the Member States may, within their respective competences, exchange information with the Commission and with Eurojust so as to make it easier to establish the facts and to ensure effective action against the criminal offences referred to in Articles 3, 4 and 5. The Commission, Eurojust and the competent national authorities shall in each specific case comply with Article 6 of the Treaty on the European Union, with the Charter of Fundamental Rights of the European Union and with the applicable Union legislation on the protection of personal data, and shall take into account the requirements of investigation secrecy. To that end, a Member State, when supplying information to the Commission and to Eurojust, may set specific conditions covering the use of information, whether by the Commission, by Eurojust, or by another Member State to which that information may be passed.

Amendment  39

Proposal for a directive

Article 15 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. The Court of Auditors, national audit institutions (for example when auditing transactions under shared management arrangements) and auditors responsible for auditing the budgets of the institutions, bodies and agencies established pursuant to the Treaties, or the budgets managed and audited by the institutions, shall disclose to OLAF any criminal offences of which they become aware during their mission.

Amendment  40

Proposal for a directive

Article 15 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

 

2b. Union officials shall disclose to OLAF any criminal offences of which they become aware during their mission;

Amendment  41

Proposal for a directive

Article 17a (new)

Text proposed by the Commission

Amendment

 

Article 17a

 

Reporting, statistics and evaluation

 

1. The Commission shall, by [24 months after the deadline for implementation of this Directive], and thereafter on a yearly basis, submit to the European Parliament and to the Council a report assessing the extent to which the Member States have taken the necessary measures to comply with this Directive and evaluating the effectiveness of this Directive in attaining its objectives.

 

Those reports shall refer to the information made available by Member States pursuant to paragraph 2.

 

2. Member States shall regularly collect and maintain comprehensive statistics from the relevant authorities in order to review the effectiveness of the systems established by them to protect the Union's financial interests. The statistics collected shall be sent to the Commission on a yearly basis and shall include:

 

(a) the number of criminal proceedings initiated, subdivided into the number of proceedings dismissed, the number resulting in an acquittal, the number resulting in a conviction and the number of ongoing proceedings,

 

(b) the amounts recovered, and the amounts not recovered, following criminal proceedings,

 

(c) the number of requests for assistance received from other Member States, subdivided into the number of requests acceded to and the number rejected.

 

3. The Commission shall, by [60 months after the deadline for implementation of this Directive], submit to the European Parliament and to the Council a full evaluation of this Directive, based on the experience gained and, in particular, on the reports and statistics provided pursuant to paragraphs 1 and 2. If appropriate, the Commission shall at the same time submit a proposal for amendment of this Directive, taking duly into account the outcome of the evaluation.

(1)

OJ C 383, 12.12.2012, p. 1.

(2)

OJ C 391, 18.12.2012, p. 134.


EXPLANATORY STATEMENT

The rapporteurs welcome the Commission’s proposal for a on the fight against fraud to the Union’s financial interests by means of criminal law. In particular, the rapporteurs share the view that the fraud and related illegal activities affecting the Union’s financial interests pose a serious problem to the detriment of the Union budget and thereby the taxpayers, who urgently call the European institutions to ensure that public money is devoted to structural growth, fiscal consolidation and jobs.

When it comes to fraud to the Union’s budget, the rapporteurs also are seriously concerned about the existence of differences among the Member States’ legal and sanctioning systems. In this respect, the rapporteurs acknowledge the existence of a well-structured acquis communautaire in the field of fight against fraud. Yet, this has been implemented by the Member States so far by adopting only insufficiently harmonised and approximated rules and provisions, including sanctions. This fragmented legal framework creates incentives, for the potential perpetrators, to move across the European territory to the most favourable judicial system. The European Parliament believes that the Union and the Member States shall respond with a unique voice to fraud and any other illegal activities affecting the financial interests of the Union through deterrent measures and, as such, shall afford an effective and equivalent protection in all Member States.

In this regard, the Commission’s legislative proposal moves in the right direction, by inserting provisions aimed to approximate the national legal systems, including criminal law measures, in order to counteract fraud and other illegal activities detrimental to the Union’s budget. However, the rapporteurs would like to further improve the proposal by ensuring the adoption of:

-    A more precise and comprehensive definition of fraud detrimental to the Union’s budget. On this point, the European Parliament welcomes the Commission’s proposal, which naturally includes VAT fraud in the directive;

-    A provision which facilitates the approximation of the countermeasures to fraudulent activities related to access to public EU tenders, including those annulling or distorting the natural competitions among bidders;

-    Provisions which consider “any” offence involving damages to the Union’s budget an offence “as such”, without differentiating among minor and serious offences depending on the level of amounts affected. On this point, taking into account at EU level the existing national provisions, the rapporteurs also decrease the offences’ threshold from 10.000 to 5.000 Euros in order to allow the Member States, if they wish to do so, to provide for other than criminal sanctions for fraud below this level. The rapporteurs thereby wish to send a strong signal to the fraudsters that above this threshold, their activities are to be considered criminal offences everywhere across Europe.

-    Lower benchmarks for imprisonment when it comes to fraud against the Union’s budget and other illegal activities, in order to promote the approximation of national laws towards a well-determined level. The rapporteurs grounded their approach on a comparative analysis of the existing legal provisions in the Member States. The European Parliament believes that it is important to communicate the message that committing fraud against the Union’s budget is no longer tolerable.

-     A provision which takes into account the role of Eurojust in the cooperation between the Member States and the Commission to protect the Union’s financial interests.

The rapporteurs believe that the Commission's proposal for a directive on the fight against fraud to the Union's financial interest is an important step in the field of EU Criminal Law. This area has been significantly enhanced since the entry into force of the Lisbon Treaty, with the abolition of the three-pillar structure and the consolidation of the European Parliament as a fully-fledged co-legislator in the European Area of Freedom, Security and Justice.

The general objective of the proposal is to ensure effective, proportionate and dissuasive protection of the Union's financial interests. For that purpose, it seeks to lay down minimal rules, including definitions of offences and minimum as well as maximum sanctions, in the field of fight against fraud and other illegal activities affecting the Union's financial interests.

The rapporteurs highlight that this directive is intended to provide a framework within which a future European Public Prosecutor's Office would operate. It represents a significant development in the creation of a European area of criminal justice.

The rapporteurs believe that, for the purposes of legal certainty, it is better to avoid categorisation of offences as 'minor' and/or 'serious'. In that respect, the rapporteurs share the view that all fraud against the EU's financial interests should be taken seriously.

The rapporteurs also share the Commission's view that a distinction should be drawn between fraud, on the one hand, and corruption and money-laundering, on the other. However, unlike the Commission, the rapporteurs think that the minimum sanctions proposed should reflect the differences between those offences (and not simply the amounts involved).

The rapporteurs further believe that, where the European Union's financial interests are at stake, it is appropriate to establish a level of minimum criminal sanctions to ensure a degree of consistency across the EU on sanctions imposed on those who defraud the EU's financial interests. Such a step must also be seen as a means of discouraging forum shopping on the part of money-launderers and fraudsters, and as part of a further development of a European area of criminal justice. However, such sanctions should not interfere with the prerogatives retained by the individual courts and judges of the Member States.

The rapporteurs want to ensure close cooperation between the Member States and the relevant Union institutions and agencies on investigating and prosecuting fraud. In particular, in that regard, it is important to acknowledge the increased role which Eurojust could play in future developments of EU criminal justice.

While establishing an effective and dissuasive deterrent to fraud against the EU's budget, the rapporteurs are also conscious of the need to maintain high standards of procedural safeguards in criminal proceedings throughout the EU, in particular with the reference to the principle of ne bis in idem.

With this report, the rapporteurs answer the citizens’ and taxpayers’ concerns, and offer a stronger basis to ensure an effective and equivalent protection of the Union’s financial interests across the entire territory of the Union.


OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS

Mr Michael Theurer

Chair

Committee on Budgetary Control

BRUSSELS

Subject:           Opinion on the legal basis for the proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law (COM(2012)0363 – C7-0192/2012 – 2012/0193(COD))

Dear Chair,

At its meeting of 27 November, the Legal Affairs Committee decided to take up on its own initiative, under Rule 37(3) of Parliament's Rules of Procedure, the question whether it is appropriate to change the legal basis of the proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law (COM(2012)0363) by replacing Article 325(4) TFEU which the Commission put forward as the legal basis by Article 83(2) TFEU.

Background

1. The proposal

The proposed directive sets out harmonised criminal law provisions, including definitions of offences and minimum as well as maximum sanctions, in the field of the fight against fraud and other protection of the Union's financial interests.

In detail, the proposal lays down what conduct is to be punishable as fraud affecting the Union's financial interests (Article 3) and as fraud-related criminal offences affecting the Union's financial interests (Article 4), such as obstruction of public procurement or grant procedures, money laundering, active and passive corruption and misappropriation of funds. In this context, the proposal also contains a definition of "public official" (Article 4(5)). It further establishes that incitement, aiding and abetting as well as attempts related to these criminal offences are to be punishable (Article 5), and provides for the liability of legal persons (Article 6). It also identifies which (particularly serious) offences are to be punished by imprisonment and sets minimum and maximum thresholds for these (Article 8). In particular, the proposal requires Member States to impose a minimum penalty of at least 6 months' imprisonment and a maximum penalty of at least 5 years' imprisonment for such serious cases, and a maximum penalty of at least 10 years' imprisonment where the offence was committed within a criminal organisation. It also defines minimum sanction types for legal persons (Article 9). It further contains provisions on freezing and confiscation (Article 10) and jurisdiction (Article 11). It also harmonises aspects of the statutes of limitations (Article 12), including a minimum duration of 5 years for prescription periods and rules on the interruption and commencement of prescription periods.

The proposal finally contains provisions on interaction with other applicable legal acts of the Union (Article 14) and on cooperation between the Member States and OLAF (Article 15).

2. The legal bases in question

a) Legal basis of the proposal

The Commission proposal is based on Article 325(4) TFEU, which reads as follows:

"(4) The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Court of Auditors, shall adopt the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Union with a view to affording effective and equivalent protection in the Member States and in all the Union's institutions, bodies, offices and agencies."

b) Proposed change in the legal basis

The Legal Affairs Committee is invited to examine the appropriateness of replacing Article 325(4) by Article 83(2) TFEU as the legal basis. Article 83(2) TFEU reads as follows:

"2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76".

Analysis

1. Principles established by the Court

Certain principles emerge from the case law of the Court as regards the choice of legal basis. First, in view of the consequences of the legal basis in terms of substantive competence and procedure, the choice of the correct legal basis is of constitutional importance(1). Secondly, under Article 13(2) TEU, each institution is to act within the limits of the powers conferred upon it by the Treaty(2). Thirdly, according to the case-law of the Court of Justice, "the choice of legal basis for a Community measure must rest on objective factors amenable to judicial review, including in particular the aim and the content of the measure"(3).

2. The Commission's choice of legal basis

The Commission explains its choice of legal basis as follows: "Article 325 sets out the EU's competence to enact the necessary measures in the fields of prevention of and fight against fraud and any other illegal activities affecting the Union's financial interests which 'act as a deterrent'(4). Article 325(4) provides for the legislative procedure to adopt the necessary measures with a view to affording effective and equivalent protection."(5). The Commission further explains that "the fight against illegal activities affecting the Union's financial interests is a very specific policy area", and that the aim of Article 325 is to protect "the single interest which this priority policy is about, i.e. Union public money, wherever it should be collected or spent".

3. Objective and content of the proposed directive

The proposed directive "establishes necessary measures in the field of prevention of and fight against fraud and other activities affecting the Union's financial interests by defining criminal offences and sanctions" (Article 1). Recital 2 further explains that "in order to ensure effective, proportionate and dissuasive protection of the Union's financial interests, criminal law in the Member States should continue to complement the protection under administrative and civil law for the most serious types of fraud-related conduct in this field, whilst avoiding inconsistencies, both within and among these areas of law".

The main elements of the proposal aimed at achieving this objective are the definition of offences, the introduction of minimum sanctions, and the harmonisation of aspects of statutory limitation. The measures are set out in detail above ("Background" under 1.).

It therefore appears that both the strengthening of criminal law provisions in Member States with a view to improving the fight against fraud and protection of the Union's financial interests, as well as the harmonisation of these provisions, together with a clarification and tidying-up exercise, are the main purposes of the proposed Directive.

The question whether Article 325(4) or Article 83(2) TFEU is the appropriate legal basis for the proposal under examination therefore basically boils down to the question which of these provisions is lex specialis for a case such as the present one: would Article 325(4) TFEU constitute a lex specialis for measures in the fight against fraud/protection of EU financial interests area or would Article 83(2) TFEU be lex specialis for certain elements of harmonisation of national criminal laws, where this harmonisation is essential for the effective implementation of a Union policy in an area which has been subject to harmonisation measures?

As regards Article 325 TFEU, it has to be noted that it replaced the former Article 280(4) EC(6), which limited the measures to be taken on its basis as follows "These measures shall not concern the application of national criminal law or the national administration of justice". Article 325(4) TFEU now no longer contains this exclusion. It might therefore be argued that this article now includes the competence to take measures to harmonise criminal law. This understanding certainly seems to underlie the Commission's reasoning in the explanatory memorandum to the proposal although the issue is not explicitly addressed.

On the other hand, it is important to recall that the Lisbon Treaty introduced in Article 83(2) TFEU a new legal basis for harmonisation of substantive criminal law to ensure the effective implementation of EU policies which have been subject to harmonisation measures. This provision endorses the previous jurisdiction of the Court of Justice according to which - despite the fact that, as a general rule, criminal law did not fall within the Union's competence - there were exceptions such as when the application of effective, proportionate and dissuasive criminal penalties was essential for combating serious environmental offences so as to ensure effectiveness(7). The deletion of the last sentence of Article 280(4) EC might therefore also be due to the introduction of this new legal basis. It is interesting to note that a similar deletion has also been effected in the area of customs cooperation: Article 135 EC(8) contained the same last sentence as Article 280 EC while it is no longer there in its TFEU equivalent, Article 33 TFEU(9).

As for the genesis of Article 83(2) TFEU, it is worth noting that there is evidence in the materials of the Convention that the inclusion of a legal basis in the Treaty permitting the adoption of minimum rules on criminal substantive law was considered appropriate in the context of the protection of the EU financial interests(10). This supports the idea that Article 83(2) – which provides this new legal basis – is a lex specialis as regards the conferral of competence for substantive criminal law. It is further to be noted that Article 83(2) TFEU contains specific requirements ("essential to ensure the effective implementation of a Union policy [...]") and limits the content of the rules that can be based on this provision ("minimum rules with regard to the definition of criminal offences and sanctions in the area concerned"). Furthermore, the specific mechanism of an emergency brake is provided for in Article 83(3). It would be surprising if these limitations could be circumvented by recourse to another substantive legal base. To allow recourse to different potential legal bases on substantive policies would also hamper the coherent development of future legislation in the area of criminal law harmonisation. This could not have been intended under the Treaty of Lisbon.

Finally, it is worth mentioning that Article 86 TFEU contains a provision on the establishment of a European Public Prosecutor's office "in order to combat crimes affecting the financial interests of the Union"(11). This shows that not all measures related to combating fraud and other activities affecting the financial interests of the Union are exhaustively regulated by Article 325 TFEU, which leaves room for Article 83(2) TFEU regulating substantive criminal law organisation to this end.

Against this background, and in order for Article 83(2) TFEU to cover the proposed directive, it would need to be established that the proposed measures are "essential" for the fight against fraud policy. The Commission puts forward strong arguments to that effect in the explanatory memorandum of the proposal.

As regards the content of the proposed measures, the proposals would need to be assessed to see whether they do not go beyond "minimum rules with regard to the definition of criminal offences and sanctions in the area concerned". At first glance, as the Commission mainly proposed harmonised definitions and minimum sanctions as well as some flanking measures, Article 83(2) TFEU appears to cover the main elements of the proposal. The issue should however be borne in mind for the further debate in the legislative procedure.

Legal Affairs Committee recommendation

The Legal Affairs Committee considered the above question at its meeting of 27 November 2012. At this meeting, it accordingly decided unanimously, by 17 votes in favour and no abstentions(12), to recommend that the appropriate legal basis for the proposal for the proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law should be Article 83(2) TFEU.

Yours sincerely,

Klaus-Heiner Lehne

(1)

Opinion 2/00 Carthagna Protocol [2001] E.C.R. I-9713, para. 5; Case C-370/07 Commission v. Council [2009] E.C.R. I-8917, paras 46-49; Opinion 1/08, General Agreement on Trade in Services [2009] ECR I-11129, para. 110.

(2)

Case C-403/05 Parliament v. Commission [2007] E.C.R. I-9045, para. 49, and the case-law cited therein.

(3)

See most recently Case C-411/06 Commission v Parliament and Council [2009] E.C.R. I-7585.

(4)

See the text of Article 325(1) TFEU: "1. The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union's institutions, bodies, offices and agencies."

(5)

COM(2012)0363, Explanatory memorandum, p.6.

(6)

Article 280(4) EC: "4. The Council, acting in accordance with the procedure referred to in Article 251, after consulting the Court of Auditors, shall adopt the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Community with a view to affording effective and equivalent protection in the Member States. These measures shall not concern the application of national criminal law or the national administration of justice." (Emphasis added)

(7)

Case C-176/03 Commission v. Council [2005] E.C.R. I-07879, paras. 48-51; Case C-440/05 Commission v Council [2007] E.C.R. I-09097, paras. 66-69.

(8)

Article 135 EC: "Within the scope of application of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission. These measures shall not concern the application of national criminal law or the national administration of justice." (Emphasis added)

(9)

Article 33 TFEU: "Within the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.

(10)

Final report of Working Group X "Freedom, Security and Justice", CONV 426/02, p. 10: "The Working Group therefore considers it opportune to include a legal base in the new Treaty permitting the adopting of minimum rules [...] where the crime is directed against a shared European interest which is already itself the subject of a common policy of the Union (e.g. counterfeiting the Euro, the protection of the Union financial interest), approximation of substantive criminal law should be part of the toolbox of measures for the pursuit of that policy whenever non-criminal rules do not suffice".

(11)

Article 86(1) TFEU: "1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining consent of the European Parliament".

(12)

The following were present for the final vote: Raffaele Baldassarre (Vice-Chair), Sebastian Valentin Bodu (Vice-Chair), Françoise Castex (Vice-Chair), Sergio Gaetano Cofferati, Christian Engström, Marielle Gallo, Giuseppe Gargani, Klaus-Heiner Lehne (Chair), Eva Lichtenberger, Antonio Masip Hidalgo, Alajos Mészáros, Angelika Niebler, Evelyn Regner (Vice-Chair), Rebecca Taylor, Alexandra Thein, Axel Voss, Cecilia Wikström.


OPINION of the Committee on Legal Affairs (*) (6.11.2013)

for the Committee on Budgetary Control and the Committee on Civil Liberties, Justice and Home Affairs

on the proposal for a directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law

(COM(2012)0363 – C7-0192/2012 – 2012/0193(COD))

Rapporteur (*): Tadeusz Zwiefka

(*) Associated committee – Rule 50 of the Rules of Procedure

AMENDMENTS

The Committee on Legal Affairs calls on the Committee on Budgetary Control and the Committee on Civil Liberties, Justice and Home Affairs, as committees responsible, to incorporate the following amendments in their report:

Amendment  1

Proposal for a directive

Citation 1

Text proposed by the Commission

Amendment

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 325 (4) thereof,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 83 (2) thereof,

Amendment  2

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2) In order to ensure effective, proportionate and dissuasive protection of the Union's financial interests, criminal law in the Member States should continue to complement the protection under administrative and civil law for the most serious types of fraud-related conduct in this field, whilst avoiding inconsistencies, both within and among these areas of law.

(2) In order to ensure effective, proportionate and dissuasive protection against the most serious types of fraud-related conduct, and in order to ensure that the Union’s financial interests are optimally protected, measures adopted under administrative and civil law should be complemented by legislation under criminal law in the Member States, whilst avoiding inconsistencies, both within and among these areas of law

Amendment  3

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6) The Union's financial interests can be negatively affected where individual tenderers provide information to contracting or grant awarding authorities based on information unduly obtained directly or indirectly from the tendering body, with the aim of circumventing or skewing rules applicable to a public procurement or grant procedure. Such conduct is very similar to fraud, but does not necessarily need to constitute a full fraud offence on the side of the tenderer, since the provided bid may be completely in line with all requirements. Bid-rigging behaviour between tenderers violates Union competition rules and equivalent national laws; it is subject to public enforcement action and sanctions throughout the Union and should remain outside the scope of this Directive.

(6) The Union's financial interests can be negatively affected where individual tenderers provide information to contracting or grant awarding authorities based on information illegally obtained directly or indirectly from the tendering body, with the aim of circumventing or violating rules applicable to a public procurement or grant procedure. Such conduct is very similar to fraud, but does not necessarily need to bear all the hallmarks of a full fraud offence on the side of the tenderer, since the provided bid may meet all the necessary criteria. Bid-rigging behaviour between tenderers violates Union competition rules and equivalent national laws; it is subject to public enforcement action and sanctions throughout the Union and should remain outside the scope of this Directive.

Amendment  4

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

Corruption constitutes a particularly serious threat against the Union's financial interests, which can in many cases also be linked to fraudulent conduct. A particular criminalisation in this area is therefore needed. It must be ensured that the relevant offences are covered by the definition irrespective of whether conduct is in breach of official duties or not. As regards the offences of passive corruption and misappropriation, there is a need to include a definition of public officials covering all relevant officials, whether appointed, elected or employed on the basis of a contract, holding a formal office, as well as persons exercising the function of providing service from government and other public bodies to citizens, or for the public interest in general, without holding a formal office, such as contractors involved in the management of EU funds.

Corruption constitutes a particularly serious threat against the Union's financial interests, which can in many cases also be linked to fraudulent conduct. A particular criminalisation in this area is therefore needed. It must be ensured that the relevant offences are covered by the definition irrespective of whether conduct is in breach of official duties or not. As regards the offences of passive corruption and misappropriation, there is a need to include a definition of public officials covering all relevant officials, whether appointed, elected or employed on the basis of a contract, holding a formal office in the Union, in the Member States or in third countries. Private persons are increasingly involved in the management of Union funds. In order to adequately protect Union funds from corruption and misappropriation, the definition of 'public official' for the purposes of this Directive therefore needs to cover also persons that do not hold a formal office, but nonetheless are assigned and exercising, in a similar manner, a public service function in relation to Union funds, such as contractors involved in the management of such funds.

Amendment  5

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9) The Union's financial interests can be negatively affected by certain types of conduct of a public official which aim at misappropriating funds or assets contrary to the purpose foreseen, and with the intention to damage the Union's financial interests. There is therefore a need to introduce a precise definition of offences covering such conduct.

(9) The Union's financial interests can be negatively affected by certain types of conduct of a public official which aim at misappropriating funds or assets contrary to the purpose foreseen, and with the intention to damage the Union's financial interests. There is therefore a need to introduce a precise and unambiguous definition of offences covering such conduct.

Amendment  6

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12) In order to protect the Union's financial interests equivalently through measures which should act as a deterrent throughout the Union, Member States should further foresee certain minimum types and levels of sanctions when the criminal offences defined in this Directive are committed. The levels of sanctions should not go beyond what is proportionate for the offences and a threshold expressed in money, under which criminalisation is not necessary, should therefore be introduced.

(12) In order to protect the Union's financial interests equivalently through measures which should act as a deterrent throughout the Union, Member States should further foresee certain types and levels of sanctions when the criminal offences defined in this Directive are committed.

Amendment  7

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14) The sanctions for natural persons in more serious cases should foresee imprisonment ranges. These serious cases should be defined by referring to a certain minimum overall damage, expressed in money, which must have been caused by the criminal behaviour to the Union's and, possibly, other budget. The introduction of minimum maximum imprisonment ranges is necessary in order to guarantee that the Union's financial interests are given an equivalent protection throughout Europe. The minimum sanction of six months ensures that a European Arrest Warrant can be issued and executed for the offences listed in Article 2 of the Framework Decision on the European Arrest Warrant, thus ensuring that judicial and law enforcement cooperation will be as efficient as possible. The sanctions will also serve as a strong deterrent for potential criminals, with effect all over Europe. More severe sanction levels should be imposed for cases when the offence was committed within a criminal organisation in the sense of Council Framework Decision 2008/841/JHA.

(14) The sanctions for natural persons should foresee imprisonment ranges. The introduction of minimum maximum imprisonment ranges is necessary in order to guarantee that the Union's financial interests are given an equivalent protection throughout Europe. The minimum sanction of six months ensures that a European Arrest Warrant can be issued and executed for the offences listed in Article 2 of the Framework Decision on the European Arrest Warrant, thus ensuring that judicial and law enforcement cooperation will be as efficient as possible. The sanctions will also serve as a strong deterrent for potential criminals all over Europe. More severe sanction levels should be imposed for cases when the offence was committed within a criminal organisation in the sense of Council Framework Decision 2008/841/JHA.

Amendment  8

Proposal for a directive

Article 2 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) the budgets of institutions, bodies, offices and agencies established under the Treaties or budgets managed and monitored by them.

(b) the budgets of institutions, bodies, offices and agencies established pursuant to the Treaties or budgets managed and monitored by them.

Amendment  9

Proposal for a directive

Article 4 – paragraph 5

Text proposed by the Commission

Amendment

For the purpose of this Article, 'public official' means:

For the purpose of this Article, 'public official' means:

(a) any person exercising a public service function for the Union or in Member States or third countries by holding a legislative, administrative or judicial office;

(a) any 'Union' or 'national official', including any national official of another Member State and any national official of a third country;

 

(i) the term 'Union official' shall mean:

 

- any person who is an official or other contracted employee within the meaning of the Staff Regulations of officials of the European Union or the Conditions of employment of other servants of the European Union,

 

- any person seconded to the European Union by the Member States or by any public or private body, who carries out functions equivalent to those performed by Union officials or other servants.

 

Members of bodies set up in accordance with the Treaties and the staff of such bodies shall be treated as Union officials, inasmuch as the Staff Regulations of the European Union or the Conditions of employment of other servants of the European Union do not apply to them;

 

(ii) the term 'national official' shall be understood by reference to the definition of 'official' or 'public official' in the national law of the State in which the person in question performs the function.

 

Nevertheless, in the case of proceedings involving a Member State's official, or a national official of a third country, initiated by another Member State the latter shall not be bound to apply the definition of 'national official' except in so far as the definition is compatible with its national law;

(b) any other person exercising a public service function for the Union or in Member States or third countries, not holding such an office, participating in the management of or decisions concerning the Union's financial interests.

(b) any other person assigned and exercising a public service function involving the management of or decisions concerning the Union's financial interests in Member States or third countries.

Justification

This amendment is based on the current definition of official included in the First Protocol to the PIF Convention in force which is well known and accepted by Member States.

Amendment  10

Proposal for a directive

Article 15 – title

Text proposed by the Commission

Amendment

Cooperation between the Member States and the European Commission (European Anti-Fraud Office)

Cooperation between the Member States, the European Court of Auditors, the national audit institutions, European civil servants, auditors and the European Commission (European Anti-Fraud Office)

Amendment  11

Proposal for a directive

Article 15 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. The European Court of Auditors, national audit institutions (e.g. when auditing transactions under shared management arrangements) and auditors responsible for auditing the budgets of the institutions, bodies and agencies established pursuant to the Treaties, or the budgets managed and audited by the institutions, shall disclose to OLAF any criminal offences of which they become aware during their mission and shall be held criminally liable if they fail to do so; moreover, this disclosure shall not render them liable to prosecution;

Amendment  12

Proposal for a directive

Article 15 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

 

2b. European civil servants shall disclose to OLAF any criminal offences of which they become aware during their mission and shall be held criminally liable if they fail to do so; moreover, this disclosure shall not render them liable to prosecution;

PROCEDURE

Title

Fight against fraud to the Union’s financial interests by means of criminal law

References

COM(2012)0363 – C7-0192/2012 – 2012/0193(COD)

Committees responsible

       Date announced in plenary

CONT

11.9.2012

LIBE

11.9.2012

 

 

Opinion by

       Date announced in plenary

JURI

11.9.2012

Associated committee(s) - date announced in plenary

13.6.2013

Rapporteur

       Date appointed

Tadeusz Zwiefka

18.9.2012

Rule 51 – joint committee meetings

       Date announced in plenary

       

10.6.2013

Discussed in committee

30.5.2013

9.7.2013

 

 

Date adopted

5.11.2013

 

 

 

Result of final vote

+:

–:

0:

19

1

0

Members present for the final vote

Raffaele Baldassarre, Luigi Berlinguer, Sebastian Valentin Bodu, Françoise Castex, Christian Engström, Marielle Gallo, Giuseppe Gargani, Sajjad Karim, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Alajos Mészáros, Bernhard Rapkay, Evelyn Regner, Rebecca Taylor, Alexandra Thein, Cecilia Wikström, Zbigniew Ziobro, Tadeusz Zwiefka

Substitute(s) present for the final vote

Eva Lichtenberger, József Szájer


PROCEDURE

Title

Fight against fraud to the Union’s financial interests by means of criminal law

References

COM(2012)0363 – C7-0192/2012 – 2012/0193(COD)

Date submitted to Parliament

11.7.2012

 

 

 

Committees responsible

       Date announced in plenary

CONT

11.9.2012

LIBE

11.9.2012

 

 

Committee(s) asked for opinion(s)

       Date announced in plenary

ECON

11.9.2012

JURI

11.9.2012

 

 

Not delivering opinions

       Date of decision

ECON

11.9.2012

 

 

 

Associated committee(s)

       Date announced in plenary

JURI

13.6.2013

 

 

 

Rapporteur(s)

       Date appointed

Ingeborg Gräßle

9.12.2013

Juan Fernando López Aguilar

9.12.2013

 

 

Rule 51 – joint committee meetings

       Date announced in plenary

       

10.6.2013

Legal basis disputed

       Date of JURI opinion

JURI

27.11.2012

 

 

 

Discussed in committee

22.1.2014

20.2.2014

20.3.2014

 

Date adopted

20.3.2014

 

 

 

Result of final vote

+:

–:

0:

44

2

5

Members present for the final vote

Jan Philipp Albrecht, Marta Andreasen, Inés Ayala Sender, Arkadiusz Tomasz Bratkowski, Zuzana Brzobohatá, Philip Claeys, Carlos Coelho, Ioan Enciu, Frank Engel, Cornelia Ernst, Monika Flašíková Beňová, Kinga Gál, Kinga Göncz, Ingeborg Gräßle, Nathalie Griesbeck, Sylvie Guillaume, Anna Hedh, Lívia Járóka, Timothy Kirkhope, Juan Fernando López Aguilar, Monica Luisa Macovei, Svetoslav Hristov Malinov, Anthea McIntyre, Nuno Melo, Louis Michel, Claude Moraes, Jan Mulder, Monika Panayotova, Antigoni Papadopoulou, Carmen Romero López, Paul Rübig, Birgit Sippel, Csaba Sógor, Renate Sommer, Rui Tavares, Kyriacos Triantaphyllides, Axel Voss, Renate Weber, Cecilia Wikström, Tatjana Ždanoka, Auke Zijlstra

Substitute(s) present for the final vote

Cornelis de Jong, Mariya Gabriel, Iliana Malinova Iotova, Jean Lambert, Hubert Pirker, Olle Schmidt, Czesław Adam Siekierski, Joachim Zeller

Substitute(s) under Rule 187(2) present for the final vote

Jo Leinen, Emilio Menéndez del Valle, Luis Yáñez-Barnuevo García

Date tabled

25.3.2014

Last updated: 3 April 2014Legal notice