Author: Giulia Varisco – Law student Milano-Bicocca University
Editor in chief – STEPPO Editorial board
Date: 12/06/2023
On 3 May 2023, the European Commission presented a proposal (COM 234, Corruption proposal) for the adoption of a new directive aimed at perfecting the tools to combat corruption.
This proposal stems from the need to overcome the obstacles and inefficiencies found up to now in practice, which have recently been identified and documented in the annual report of the European Commission on the Rule of Law. To this end, the traditional crimes of corruption, extortion, embezzlement, trafficking in influence, abuse of office, illicit enrichment and obstruction of justice will be reduced to an all-encompassing crime hypothesis, which will be associated with a uniform disciplinary treatment in all Union countries.
This will make it possible to neutralize any differentiations within the Member States, such as, for example, the recognition of immunities that prevent the exercise of criminal prosecution, until the ultimate goal of establishing a Union anti-corruption network is achieved. From a strictly legal point of view, the foundation of this proposal is established by articles 83, para. 1 and 2, and 82, para. 1, lit. d), TFEU. The first article identifies corruption as one of the crimes that have a particular transnational dimension and, consequently, authorizes the European Parliament and the Council to approve directives aimed at defining the crimes, as well as the relative sanctioning intervention in the EU intervention sectors. Of primary importance is the authorization to regulate corruption phenomena. We speak of phenomena, and not of a phenomenon, because the definition of corruption is not univocal, since this presents itself as an endemic problem, which takes on different connotations depending on the reference society.
The art. 82, on the other hand, provides the legal basis for the introduction of measures aimed at favoring, in relation to criminal proceedings and the execution of sanctions, cooperation between the judicial authorities of the various Member States.
In fact, the transnational nature of corruption makes joint intervention necessary, since actions undertaken individually by each State would only achieve unsatisfactory results. In this sense, the directive will require the various Member States to adopt effective rules for the management of conflicts of interest in the public sphere, for the reporting and verification of the assets of public officials, as well as for the control of the methods of interaction between the public sector and private.
This is a possible new European Union provision aimed at protecting the functioning of the single market through the promotion of sustainable economic growth, capable of increasing resources in the various productive sectors, making public spending more efficient and reducing social inequalities. These objectives can only be fully pursued in a context capable of tackling corruption, which undermines democratic institutions and the principles on which the Union is founded, in particular, the rule of law, equality and the protection of fundamental rights.
Another very recent news is represented by the changes that the European Public Prosecutor’s Office has made to the internal regulation on the functioning of the European Public Prosecutor’s Office, on the basis of the provisions of EU regulation no. 2017/1939 published in the Official Journal of the European Union of 23 May 2023 (Series C 181, EU EPPO). This modification clarified the internal language regime and that relating to relations with the Court of Justice of the European Union.
In fact the art. 2 specifies that, “communication with persons involved in criminal proceedings, with victims and witnesses must take place in the requested language, in compliance with national criminal procedural regulations”. At an organizational level, the regulation, as amended, provides that strategic and political decisions are taken by the College on a proposal from the European Chief Prosecutor.
The procedures for carrying out the meetings and the quorums are also detailed required for decision-making and voting mechanisms. In relation to the latter aspect, the possibility of tacit approval has also been introduced. The news then indicated the procedures for identifying the number of permanent chambers and the methods for allocating responsibilities. In this regard, art. 19 introduces a system of random and automatic assignment of cases to permanent chambers, of which the Supervising European Prosecutor is not a permanent member, according to the order of registration of each new case. Finally, the rules for carrying out the investigation have been improved, which, while maintaining the provisions of national law, require the organization of the files in such a way as to guarantee the correct functioning of the EPPO. In accordance with art. 44, par. 4, lit. c), where possible, all copies of the elements added in the dossier are archived electronically in the automatic dossier management system.