Just Call It Corruption and Criminalise... An Assessment of the Commission’s Proposal for an EU Directive on Combating Corruption (COM [2023] 234 final)

Abstract

The European Commission’s proposal for a Directive on combating corruption would entail a massive expansion of criminal liability that would go well beyond the traditional concept of corruption. The proposal would make numerous non-binding UNCAC provisions mandatory for the Member States. In the offence of bribery, Member States could neither require a (envisaged) breach of an official duty nor the offering (etc.) of an undue advantage. If the proposal were to be adopted in this form, normal political processes would be criminalised, right down to the municipal level and for honorary office holders. Moreover, even a disrespect of purely formal rules in the public sector and a breach of contractual obligations in the private sector would have to be criminalised as “abuse of office”. Another proposed offence, “enrichment from corruption offences” would run counter to the constitutional presumption of innocence, with the consequence that the Member States would ultimately have to consider pulling the emergency brake of Art. 83 para. 3 TFEU.