Key Benefits:
The President of the Republic,
On the report of the Prime Minister and the Minister for Foreign Affairs,
Having regard to Articles 52 to 55 of the Constitution;
In view of Act No. 99-423 of 27 May 1999 authorising the ratification of the Convention established on the basis of Article K. 3, Paragraph 2 (c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of the Member States of the European Union, done in Brussels on 26 May 1997 ;
In light of the amended Decree No. 53-192 of 14 March 1953 on ratification and Publication of international commitments undertaken by France, Décrète:
The Convention established on the basis of Article K. 3 (2) (c) of the Treaty on Union European Union on the fight against corruption involving officials of the European Communities or officials of the Member States of the European Union shall be published in the Official Journal of the French Republic.
The Prime Minister and the Minister for Foreign Affairs shall each have responsibility for the execution of this Decree, which shall be published in the Official Journal of the French Republic.
C O N V E N T I O N
ESTABLISHED ON THE BASIC OF ARTICLE K. 3, PARAGRAPH 2, POINT (C) OF THE TREATY ON THE UNION THE EUROPEAN FIGHT AGAINST CORRUPTION INVOLVING OFFICIALS OF THE EUROPEAN COMMUNITIES OR THE FUNCTIONARIES OF THE MEMBER STATES OF THE EUROPEAN UNION
High Contracting Parties to this Convention, Member States of the European Union,
Referring to the Act of the Council of the European Union of 26 May 1997;
Considering that member states believe that the strengthening of judicial cooperation in the fight against corruption is a matter of common interest, which is a matter for cooperation established by Title VI of the Treaty;
Taking the view that the Council established, by act of 27 September 1996, a protocol for In particular the fight against acts of corruption in which civil servants, both national and Community, are involved and which infringe or are likely to affect the financial interests of the European Communities ;
Considering that, for the purpose of strengthening judicial cooperation in criminal matters between the Member States, it is necessary to go beyond that protocol and to establish a convention for acts of corruption in which the Involvement of officials of the Communities or officials of the States Members in general;
To ensure a consistent and effective application of this Convention throughout the territory of the European Union,
agreed to the following provisions:
Article 1st
Definitions
For the purposes of this convention:
a) The expression " Employee " Means any official, both Community and national, including any national official of another Member State;
(b) The expression " Community civil servant Means:
-any person who is a public servant or an agent hired by contract within the meaning of the Staff Regulations of Officials of the European Communities or of the Conditions of employment of other servants of the European Communities;
-any person who is Provision of the European Communities by the Member States or by any public or private body which performs functions equivalent to those exercised by officials or other servants of the European
. Bodies established pursuant to the Treaties establishing the European Communities And the staff of such bodies shall be assimilated to Community officials where the Staff Regulations of Officials of the European Communities or the Conditions of Procedure applicable to other servants of the European Communities are not applicable to
. (c) " National civil servant " Is interpreted by reference to the definition of " Employee " Or "public officer" In the national law of the Member State in which the person in question presents that quality for the purposes of applying the criminal law of that Member State.
Nevertheless, if proceedings involving an official of a Member State are instituted by a Member State Other Member State, the latter is not required to apply the definition of ' National civil servant " As long as it is compatible with its national law.
Article 2
Passive Corruption
1. For the purposes of this Convention, passive bribery is an intentional act, for an official, directly or through the interposition of third parties, to solicit or receive benefits of any kind, for himself or herself or For a third party, or to accept the promise, to fulfil or not to carry out, in a manner contrary to its official duties, an act of its function or an act in the exercise of its function.
2. Each Member State shall take the necessary measures to Ensure that the conduct referred to in paragraph 1 is set up as a criminal offence.
Article 3
Active Corruption
1. For the purposes of this Agreement, bribery is an active offence for anyone to promise or to give, directly or through the interposition of third parties, an advantage of any kind, to an official, for Or for a third party, to carry out or refrain from performing, in a manner contrary to his official duties, an act of his office or an act in the exercise of his or her function.
2. Each Member State shall take the necessary measures to Ensure that the conduct referred to in paragraph 1 is set up as a criminal offence.
Article 4
Assimilation
1. Each Member State shall take the necessary measures to ensure that, in its criminal law, the qualifications of the offences referred to in Articles 2 and 3 committed by or against the ministers of its Government, the elected representatives of its parliamentary assemblies, The members of its highest courts or the members of its Court of Auditors in the performance of their duties shall apply equally to cases in which the offences are committed by or against the members of the Commission European Communities, the European Parliament, the Court of Justice and the Court of Auditors Of the European Communities, respectively, in the performance of their duties.
2. If a Member State has adopted special laws relating to acts or omissions for which the ministers of its government must respond by reason of the position Paragraph 1 may not apply to such laws, provided that the Member State guarantees that the criminal laws implementing Articles 2 and 3 also apply to the members of the Commission. European Communities.
3. Paragraphs 1 and 2 shall be without prejudice to the provisions applicable in each Member State as regards the criminal procedure and the determination of the competent
. This Convention shall apply in full respect of the relevant provisions of the Treaties establishing the European Communities, of the Protocol on the privileges and immunities of the European Communities, of the Statute of the Court of Justice, and Texts adopted for their application, as regards the waiver of immunities.
Article 5
Sanctions
1. Each Member State shall take the necessary measures to ensure that the conduct referred to in Articles 2 and 3, as well as the complicity and instigation of such conduct, are punishable by effective, proportionate and dissuasive criminal penalties Including, at least in serious cases, custodial sentences which may lead to extradition.
2. Paragraph 1 is without prejudice to the exercise of disciplinary powers by the competent authorities against the National officials or Community officials. In determining a criminal sanction to be imposed, national courts may take into account, in accordance with the principles of their national law, any disciplinary sanction already imposed on the same person for the same conduct.
Article 6
Corporate Criminal Responsibility
1. Each Member State shall take the necessary measures to enable the heads of undertakings or any person with the power of decision or control within a company to be declared criminally liable, according to the principles defined By its domestic law, in the case of acts of corruption as referred to in Article 3, committed by a person subject to their authority on behalf of the enterprise.
Article 7
Competence
1. Each Member State shall take the necessary measures to establish its jurisdiction in respect of the offences it has established in accordance with the obligations arising from Articles 2, 3 and 4 in cases where:
(a) the offence is committed, in whole or in part, on its territory;
(b) the offender is one of its nationals or officials;
(c) the offence is committed against the persons referred to in section 1 or One of the members of the institutions of the European Communities referred to in Article 4 (1), which is at the same time one of its nationals;
(d) the offender is a Community official serving an institution of the European Communities or an organisation established in accordance with the Treaties establishing The European Communities and having its seat in the Member State concerned.
2. Any Member State may declare, in the notification provided for in Article 13 (2), that it does not apply, or applies only in cases or under conditions Specific, one or more of the rules of jurisdiction set out in paragraph 1 (b), (c) and (d).
Article 8
Extradition and prosecution
1. Any Member State which, under its legislation, does not extradite its own nationals shall take the necessary measures to establish its jurisdiction over the infringements which it has established in accordance with the obligations arising from Articles 2, 3 and 4 Where they are committed by its own nationals outside its territory.
2. Each Member State must, when one of its nationals is presumed to have committed an offence under the obligations in another Member State Pursuant to Articles 2, 3 or 4 and that it does not extradite that person to that other State Member solely on grounds of nationality, refer the case to its competent authorities for prosecution, if applicable. In order to enable the prosecution, the files, information and objects relating to the infringement will be sent in accordance with the procedures laid down in Article 6 of the European Convention on Extradition of 13 December 1957. The requesting Member State will be informed of the prosecutions and their results.
3. For the purposes of this Article, the words " Nationals " A Member State shall be interpreted in accordance with any declaration made by that State pursuant to Article 6 (1) (b) of the European Convention on Extradition and in paragraph 1 (c) of that Article.
Article 9
Cooperation
1. If a procedure for an offence established in accordance with the obligations under Articles 2, 3 and 4 concerns at least two Member States, they shall cooperate effectively in the investigation, prosecution and execution of the A sanction imposed by, for example, mutual legal assistance, extradition, the transfer of proceedings or the enforcement of judgments delivered in another Member
. Where an offence falls within the competence of more than one Member State and any one of those States may validly prosecute on the basis of the same facts, the Member States concerned shall cooperate to decide which of them Continue the offender (s) with the objective of centralizing, where possible, prosecution in a single member state.
Article 10
Ne bis in idem
1. Member States shall apply in domestic criminal law the ne bis in idem principle whereby a person who has been definitively tried in a Member State cannot be prosecuted for the same facts in another Member State, provided that Punishment has been carried out, either in the course of execution or can no longer be enforced according to the law of the State of conviction.
2. Any Member State may declare, in the notification referred to in Article 13 (2), that it is not Not bound by paragraph 1 of this Article in one or more of the following cases:
(a) where the facts of the judgment rendered abroad have taken place, in whole or in part, on its territory. In the latter case, however, this exception does not apply if the facts have taken place in part in the territory of the Member State in which the judgment was rendered;
(b) where the facts of the judgment rendered abroad constitute a Offence against the security or other essential interests of that Member State;
(c) where the facts referred to in the judgment rendered abroad were committed by an official of that Member State in breach of the obligations of that Member State Load.
3. If a new prosecution is brought in a Member State against a person who has been definitively tried for the same facts in another Member State, any period of deprivation of liberty in the latter Member State as a result of those facts must Be deducted from the sanction that will eventually be imposed. It will also be taken into account, to the extent that national legislation so permits, sanctions other than those which have already been suffered.
4. Exceptions which have been the subject of a declaration under paragraph 2 shall not apply where the Member State concerned has, for the same facts, requested the prosecution of the other Member State or granted the extradition of the person concerned
5. Bilateral or multilateral agreements concluded between Member States in this field and the declarations relating thereto shall not be affected by this Article.
Article 11
Internal provisions
Nothing in this Convention shall prevent Member States from adopting provisions of domestic law going beyond the obligations under this Convention.
Article 12
Court of Justice
1. Any dispute between Member States relating to the interpretation or application of this Convention which could not be resolved bilaterally shall, in a first step, be examined within the Council in accordance with the procedure laid down in Title VI of the Treaty on the European Union, with a view to a solution. On expiry of a period of six months, if a solution has not been found, the Court of Justice of the European Communities may be seized by a party to the dispute.
2. Any dispute relating to Article 1, with the exception of point (c), and to the Articles 2, 3 and 4 between one or more Member States and the Commission of the European Communities, to the extent that it concerns an issue relating to Community law or the financial interests of the Communities, or involving members or Officials of their institutions or treaty bodies Establishing the European Communities, which could not be settled by negotiation, may be referred to the Court of Justice by a party to the
. Any court of a Member State may ask the Court of Justice to give a preliminary ruling on a question concerning the interpretation of Articles 1 to 4 and 12 to 16, raised in a case before it, involving members or Officials of the Community institutions or bodies established pursuant to the Treaties establishing the European Communities, acting in the exercise of their functions, since it considers that a decision on this point is necessary To render its judgment.
4. The jurisdiction of the Court of Justice provided for in paragraph 3 shall be subject to its acceptance by the Member State concerned in the form of a declaration to that effect made in the notification referred to in Article 13 (2) or at any time Later.
5. A Member State making a declaration under paragraph 4 may limit the right to ask the Court of Justice to give a preliminary ruling to its courts whose decisions are not subject to judicial review of law
6. The Statute of the Court of Justice of the European Community and its Rules of Procedure shall apply. In accordance with that Statute, any Member State, as well as the Commission, has the right, whether or not it has made a declaration under paragraph 4, to file before the Court of Justice a written statement or observations in the cases before it Entered under paragraph 3.
Article 13
Entry into force
1. This Convention shall be subject to adoption by the Member States in accordance with their respective constitutional requirements.
2. Member States shall notify the Secretary-General of the Council of the European Union of the completion of the required procedures By their respective constitutional rules for the adoption of this
. This Convention shall enter into force ninety days after the notification referred to in paragraph 2 by the Member State which makes the last such formality.
4. Until the entry into force of this Convention, each Member State may, at the time of the notification referred to in paragraph 2 or at any later time, declare that the Convention, with the exception of Article 12, shall apply in respect thereof, in its Relations with the Member States which have made the same declaration. This Convention shall become applicable in respect of the Member State having made such a declaration on the first day of the month following the expiration of a period of ninety days after the date of the filing of its declaration.
5. A Member State which has made no declaration under paragraph 4 may apply this Convention to the other Contracting Member States on the basis of bilateral agreements.
Article 14
Accession of new Member States Member States
1. This Convention shall be open for accession by any State which becomes a member of the European Union.
2. The text of this Convention in the language of the acceding State, established by the Council of the European Union, is authentic.
3. The instruments of accession shall be deposited with the
. This Convention shall enter into force in respect of any State which accedes thereto ninety days after the date of deposit of its instrument of accession or on the date of entry into force of that Convention, if it has not yet entered into force on the The expiration of the ninety day period.
5. Where this Convention has not yet entered into force at the time of deposit of the instrument of accession, Article 13 (4) shall apply to the acceding States.
Article 15
Reservations
1. No reservations shall be permitted, with the exception of those provided for in Article 7 (2) and Article 10 (2).
2. Any Member State which has made a reservation may withdraw it at any time, in whole or in part, by means of a Notification to the depositary. The withdrawal shall take effect on the date of receipt of the notification by the depositary.
Article 16
Depositary
1. The Secretary-General of the Council of the European Union shall be the depositary of this Convention.
2. The depositary shall publish in the Official Journal of the European Communities the status of adoptions and accessions, declarations and reservations, as well as Any other notification relating to this Convention.
In witness whereof, the Plenipotentiaries have signed at the bottom of this Convention.
Done at Brussels, on 26 May 1997, in a single copy, in the German languages, English, Danish, Spanish, Finnish, French, Greek, Irish, Italian, Dutch, Portuguese and Swedish, all these texts being equally authentic, which is deposited in the archives of the General Secretariat of the Council of the European Union.
Statements by the Republic French
Declaration under Article 7, paragraph 2:
" Where the offences provided for in Articles 2, 3 and 4 of this Convention are committed outside the territory of the Republic, France declares, in accordance with the provisions of Article 6 (2), that the pursuit of such offences In respect of the persons listed in Article 7 (1) (b), (c) and (d), may be exercised only at the request of the public prosecutor. Such prosecution shall be preceded by a complaint by the victim or his successors in title or by a formal denunciation by the authority of the country in which the act was committed. "
Declaration under Article 12 (4):
" In accordance with the declaration made by France on 4 March 2000 pursuant to Article 35 of the Treaty of the European Union, the French Republic declares that it accepts the jurisdiction of the Court of Justice of the European Communities, acting by title On a question concerning the interpretation of Articles 1 to 4 and 12 to 16 of the Convention, in accordance with the conditions laid down in paragraph 3 of Article 12. "
Done at Paris, June 28, 2006.
Jacques Chirac
By the President of the Republic:
Prime Minister,
Dominique de Villepin
The Minister for Foreign Affairs,
Philippe Douste-Blazy
