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On The Convention On The Protection Of The European Communities ' Financial Interests, The Protocol Drawn Up On The Basis Of Article K.3 Of The Treaty On European Union

Original Language Title: Par Konvencijas par Eiropas Kopienu finanšu interešu aizsardzību Protokolu, kas izstrādāts, pamatojoties uz Līguma par Eiropas Savienību K.3 pantu

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The Saeima has adopted and the President promulgated the following laws: the Convention on the protection of the European Communities ' financial interests, the Protocol drawn up on the basis of article k.3 of the Treaty on European Union article 1. 27 September 1996 to the Convention on the protection of the European Communities ' financial interests, the Protocol was developed on the basis of article k.3 of the Treaty on European Union (hereinafter referred to as the Protocol), with this law is adopted and approved. 2. article. Fulfilment of the obligations provided for in the Protocol shall coordinate the corruption prevention and combating Bureau. 3. article. This Protocol shall enter into force on its article 10 on time and in order, and the Ministry of Foreign Affairs shall notify the newspaper "journal". 4. article. The law shall enter into force on 1 May 2004. By law to be put before the text of the Protocol in English, and its translation into Latvian language. The law, adopted in 2004 the Saeima on 29 April. State v. President Vaira Vīķe-Freiberga in Riga on 1 May 2004 of the PROTOCOL DRAWN UP ON the basis OF article k. 3 OF the TREATY ON EUROPEAN UNION TO the CONVENTION ON the PROTECTION OF the EUROPEAN communities FINANCIAL interests ' the HIGH CONTRACTING parties to this Protocol, Member States of the European Union, REFERRING to the Act of the Council of the European Union of 27 September 1996 , (MENU RNGTON LINE4) to ensur that their criminal law will contribute effectively to the protection of the financial interests of the European communities; RECOGNIZING the importanc of the Convention on the protection of the European Communities ' financial interests of 26 July 1995 for combating fraud Community revenue and expenditure regimes; Aware that the financial interests of the European communities may be damaged or threatened by others, particularly the criminal acts of the offenc corruptions by or against national and Community officials, responsible for the collection, management or disbursemen of Community funds under their control; CONSIDERING that people of different nationalit, employed by different public agencies or bodies, may be involved in such corruption and that, in the interests of effective action against such corruption with international ramification, it is important for their reprehensibl of nature to be perceived in a similar manner under Member States ' criminal law; NOTING that several Member States ' criminal law on crime linked to the exercise of public duties in general and concerning corruption in particular covers only acts committed by or against their national officials and does not cover, or cover only in exceptional cases, conduct involving Community officials or officials of other Member States; CONVINCED of the need for national law to be adapted where it does not penaliz acti of corruption that damage or are likely to damage the financial interests of the European communities involving Community officials or officials of other Member States; CONVINCED also that such adaptation of national law should not be confined, in the respect of Community officials, their acts of active or passive corruption, but should be extended to other crimes or likely to be affec regimes the revenue or expenditure of the European communities, including crimes committed by or against a person in whom the highest responsibilities are vested; CONSIDERING that appropriate rules should also be let down on jurisdiction and mutual cooperation, without prejudice to the legal conditions under which they apply in the specific case of this, including the waiver of immunity where appropriate; CONSIDERING finally that the relevant provision of the Convention on the protection of the European Communities ' financial interests of 26 July 1995 should be made applicable to the criminal acts covered by this Protocol, have AGREED ON the FOLLOWING PROVISION: article 1 Definition For the purpose of this Protocol: 1. (a) "official" shall mean any ' Community ' or ' national ' official, including any national official of another Member State; (b) the term ' Community 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 communities or the conditions of employment of other servants of the European communities, any person seconded to the European communities by the Member States or by any public or private body, who carr out functions equivalent to those performed by European Community officials or other servants. Members of bodies set up in accordanc with the Treats to establishing the European communities and the staff of such bodies shall be treated as Community officials, inasmuch as the Staff Regulations of the European communities or the conditions of employment of other servants of the European communities do not apply to them; (c) the term ' national official ' shall be understood by reference to the definition of ' official ' or ' public officer ' in the national law of the Member State in which the person in question perform that function for the purpose of application of the criminal law of that Member State. Vertheles, not in the case of proceedings involving a Member State's official initiated by another Member State the latter shall not be bound to apply the definition of ' national official ' except in so far as that definition is compatible with its national law; 2. "Convention" shall mean the Convention drawn up on the basis of article k. 3 of the Treaty on European Union, on the protection of the European Communities ' financial interests of 26 July 1995, (1). Article 2 passive corruption For the purpose of 1 of this Protocol, the deliberate action of an official, who, directly or through an intermediary, requests or receive the advantage of any kind whatsoever, for himself or for a third party, or accept a promise of such an advantage, to act or refrain from acting in accordanc with his duty or in the exercise of his functions in breach of his official duties in a way which damage or is likely to damage the European Communities ' financial interests shall constitut of passive corruption. 2. Each Member State shall take the measure of the cessary ensur that conduct of the type referred to in paragraph 1 is made a criminal offenc. Article 3 active corruption 1. For the purpose of this Protocol, the deliberate action of whosoever promises or give, directly or through an intermediary, an advantage of any kind whatsoever to an official for himself or for a third party for him to act or refrain from acting in accordanc with his duty or in the exercise of his functions in breach of his official duties in a way which damage or is likely to damage the European Communities ' financial interests shall constitut active corruption. 2. Each Member State shall take the measure of the cessary ensur that conduct of the type referred to in paragraph 1 is made a criminal offenc. Article 4 Each Member State Assimilation 1. shall take the measure of the cessary ensur that in its criminal law the description of the offenc's constituting conduct of the type referred to in article 1 of the Convention committed by its national officials in the exercise of their functions apply similarly in cases where such a committed Community of the offenc by officials in the exercise of their duties. 2. Each Member State shall take the measure of the cessary ensur that in its criminal law the descriptions of the offenc referred to in the paragraph 1 of this article and in articles 2 and 3 committed by or against its Government Minister, elected members of parliamentary chambers, it is the members of its highest courts or the members of the Court of Auditors of it in the exercise of their functions apply similarly in cases where such of the offenc committed by or against members of the Commission of the European communities, the European Parliament, the Court of Justice and the Court of Auditors of the European communities respectively in the exercise of their duties. 3. Where a Member State has enacted special legislation concerning acts or omission for which the Government is responsible to the Minister by reason of their special political position in that Member State, paragraph 2 of this article may not apply to such legislation, provided that the Member State of ensur that members of the Commission of the European Community are covered by the criminal legislation implementing articles 2 and 3 and paragraph 1 of this article. 4. Paragraphs 1, 2 and 3 shall be without prejudice to the provision of applicable in each Member State concerning criminal proceedings and the determination of the competent court. 5. This Protocol shall apply in full accordanc with the relevant provision of the Treats to establishing the European communities, the Protocol on the Privileges and to the Immunit of the European communities, the Statute of the Court of Justice and the texts adopted for the purpose of their implementation, as regards the withdrawals of immunity. Article 5 penalties 1. Each Member State shall take the measure of the cessary ensur that the conduct referred to in articles 2 and 3, and participating in and instigating the conduct in question, the punishabl by effective, proportionat and dissuasiv in criminal penalties, including, at least in serious cases, penalties involving deprivation of liberty which can give rise to extradition. 2. Paragraph 1 shall be without prejudice to the exercise of disciplinary powers by the competent authorities to be against national officials or Community officials. In determining the penalty to be imposed, the national criminal courts may, in accordanc with the principles of their national law, take into account any disciplinary penalty already imposed on the same person for the same conduct. Article 6 1 Each Member State Jurisdiction shall take the measure not to establish its jurisdiction over the cessary the offenc it has established in accordanc with articles 2, 3 and 4 where: (a) the offenc is committed in whole or in part within its territory; (b) the offender is one of its nationals or one of its officials; (c) the offenc is committed against one of the persons referred to in article 1 or a member of one of the institutions referred to in article 4 (2) who is one of its nationals; (d) the offender is a Community official working for a European Community institution or a body set up in accordanc with the Treats to establishing the European communities which has its headquarters in the Member State concerned. 2. Each Member State may declare when giving the notification provided for in article 9 (2) that it will not apply or will apply only in specific cases or conditions one or more of the jurisdiction rules passed down in paragraph 1 (b), (c) and (d). Article 7 Relations to the Convention articles 3 1, 5 (1), (2) and (4) and article 6 of the Convention shall apply as if there were a reference to the conduct referred to in articles 2, 3 and 4 of this Protocol. 2. The following provision of the Convention shall also apply to this Protocol: – article 7, on the understanding that, unless otherwise is indicated at the time of the notification provided for in article 9 (2) of this Protocol, any declaration within the meaning of article 7 (2) of the Convention shall also apply to this Protocol, article 9, article 10, article 8 the Court of Justice 1. Any dispute between Member States on the interpretation or application of this Protocol must in an initial stage be examined by the Council in accordanc with the procedure set out in Title VI of the Treaty on European Union with a view to reaching a solution. If the solution is found within six months from, the matter may be referred to the Court of Justice of the European communities by a party to the dispute. 2. Any dispute between one or more Member States and the Commission of the European communities concerning article 1, with the exception of point 1 (c), or articles 2, 3 and 4, or the third indent of article 7 (2) of this Protocol which it has proved impossible to settle through negotiation may be submitted to the Court of Justice of the European communities. Article 9 Entry into force this Protocol shall be 1 subject to adoption by the Member States in accordanc with their respectiv is constitutional requirements. 2. Member States shall notify the Secretary-General of the Council of the European Union of the completion of the procedures required under their respectiv of constitutional rules for adopting this Protocol. 3. This Protocol shall enter into force 90 days after the notification provided for in paragraph 2 has been given by the State which, being a Member of the European Union at the time of adoption by the Council of the Act drawing up this Protocol, is the last to fulfil that formality. If, however, the Convention has not entered into force on that date, this Protocol shall enter into force on the date on which the Convention enter into force. Article 10-Accession of new members States 1. This Protocol shall be open to accession by any State that become a member of the European Union. 2. The text of this Protocol in the language of the acceding State, drawn up by the Council of the European Union, shall be authentic. 3. Instruments of accession shall be deposited with the depositary. 4. This Protocol shall enter into force with respect to any State that accede to it 90 days after the deposit of its instrument of accession or on the date of entry into force of this Protocol if it has not yet entered into force at the time of expiry of the said period of 90 days. Article 11 reservations reservation shall be authorized From 1 with the exception of those provided for in article 6 (2). 2. Any Member State which has entered a reservation may withdraw it at any time in whole or in part by notifying the depositary. Withdrawals shall take effect on the date on which the depositary receive the notification. Article 12 Depositary 1. The Secretary-General of the Council of the European Union shall act as depositary of this Protocol. 2. The depositary shall publish in the Official Journal of the European communities information on the progress of adoption and accession, declarations and reservations and any other notification concerning this Protocol. In witness whereof, the undersigned have hereunt the Plenipotentiar to set their hands. Done in a single original, in the Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic, such original remaining deposited in the archives of the General Secretariat of the Council of the European Union.
Annex statements made by Member States on the adoption of the Act drawing up the Protocol 1. Statement by the German delegation: "the Government of the Federal Republic of Germany States its intention, as regards the Protocol to the Convention on the protection of the European Communities ' financial interests (officials), of reaching, through negotiation, an agreement on the competence of the Court of Justice of the European communities to give a preliminary ruling that the is the same as that sought for the Convention on the protection of the European Communities ' financial interests and by the same date. " 2. Joint statement by the Belgian, Luxembourg and Netherlands delegation: "the Governments of the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg take the view that, for this Protocol to enter into force, a satisfactory solution to the question of the competence to be conferred on the Court of Justice of the European communities for the interpretation of the Protocol must be found by the end of November 1996 , preferably within the framework of the current discussion on the conferral of competence on the Court of Justice to give a preliminary ruling on the interpretation of the Convention on the protection of the European Communities ' financial interests. " 3. Statements by the Austrian Delegation: "Austria-assume that the question of the competence of the Court of Justice of the European communities to give a preliminary ruling will be settled favourably in the near future, and it will continue to work to that end." Register 1900000 — Cooperation in the field of Justice and Home Affairs subject term: justice and Home Affairs the Convention on the protection of the European Communities ' financial interests, the PROTOCOL was developed on the basis of article k.3 of the Treaty on European Union This Protocol for the High Contracting Parties, Member States of the European Union; Referring to the Council of the European Union of 27 September 1996 decision; Desiring to ensure that national criminal law effectively helps to protect the European Communities ' financial interests; Recognizing the importance of 26 July 1995 on the Convention on the protection of the European Communities ' financial interests against fraud affecting Community revenue and expenditure; Recognising that the European Communities ' financial interests may be harmful to or could compromise the other criminal offences, in particular national or community officials who are responsible for the controls collection of the existing Community funds, management or disbursement of corruption; Given that citizens of different nationalities, employed in various State bodies or organizations, may be involved in corruption and to effectively address such international branched corruption, it is essential that the Member States ' criminal law safety perception; Noting that some Member States ' criminal law on offences related to public duties in General and in particular corruption, applies only to transactions made by officials of the Member State concerned, or made against the officers and only in exceptional cases relate to activities involving community officials or officials of other Member States; Convinced that national laws should be clarified, if they are not provided for the punishment of corruption that harms or may harm the European Communities ' financial interests, and involving community officials or officials of other Member States; Similarly, the belief that such national laws relating to the updating of the community officials should not be limited to active or passive corruption, but should be extended to other criminal offences affecting or likely to affect the European Community revenue or expenditure, including offences committed by officers, or made against officials entrusted with the highest responsibility; Considering that appropriate rules should also be laid down on jurisdiction and mutual cooperation, without prejudice to the legal conditions under which it is applicable in specific cases, where appropriate, providing for the waiver of immunity; Considering that the corresponding provisions of 26 July 1995 on the Convention on the protection of the European Communities ' financial interests should apply to this Protocol, the following criminal activities, have agreed upon the following provisions. Article 1 definitions for the purposes of this Protocol: (a)) with the term "officer" refers to any community or national official, including any national official of another Member State; (b) the term ' community official ' shall mean: any person who is an official or other contract of employment, on the basis of the European Communities staff regulations of officials or the provisions on other European Community hiring, any person who, in the Member States or by any public or private person has sent to the European communities and which carries out functions equivalent to European Community officials or other staff of the functions to be performed. The institutions established under the treaties establishing the European communities, members and staff are subject to the same rules as to community officials, noting that they are not subject to the provisions of the European Community on the rules concerning staff or other staff of the European communities in hired; (c) the term "national security" is to be understood under the term "official" or "public officials" definitions in national legislation of the Member State in which the person concerned carries out functions of criminal law enforcement purposes. However, in cases where legal proceedings in cases where a Member State is involved, officials began a another Member State, the latter need not apply "national official" definition, except where the definition is adequate in that State's national law. 2. "Convention" means the 26 July 1995 Convention on the protection of the European Communities ' financial interests drawn up on the basis of article k.3 of the Treaty on European Union. Article 2 passive corruption 1. this The meaning of the Protocol, the deliberate action by which any officer directly or with the help of mediation requests or receives advantages of any kind to yourself or any third party, or accepts such advantage, to offer this Executive perform its functions or duties or refrain from your function or duties in breach of his duties, causing or potentially causing damage the European Communities ' financial interests shall be considered as the passive corruption. 2. Each Member State shall take the necessary measures to ensure that the conduct referred to in the first subparagraph is qualified as a criminal offence. 3. Article 1 of the active corruption of the meaning of this Protocol, the deliberate action by which any person or give a step, directly or through mediation, officials of the benefits of any kind intended for that official or a third party, this officer to carry out their functions or duties or refrain from your function or duties in breach of his duties, causing or potentially causing damage to the European Communities ' financial interests , is considered the "active corruption. 2. Each Member State shall take the necessary measures to ensure that the conduct referred to in the first subparagraph is qualified as a criminal offence. Article 4 Assimilation 1. Each Member State shall take the necessary measures to ensure that the criminal offence in the criminal code's description of the article 1 of the Convention to the activities referred to by the national officials in the exercise of his duties, be applied also to the cases where such criminal offences in the performance of their duties, officials shall be made. 2. Each Member State shall take the necessary measures to ensure that its criminal law in the first part of this article and in article 2 and 3 these offences which they have committed Government Ministers, elected by its Parliament in the Chamber members, members of the Supreme Court or the Court of Auditors of the Member in the performance of their functions, or who have been committed against them, are also extended to the cases where such offences are committed members of the Commission of the European Community in the , The European Parliament, the Court of Justice of the community and the members of the Court of Auditors, in the performance of their tasks, or which have been committed against them. 3. where a Member State has adopted special rules concerning acts or omissions for which Government Ministers are responsible to their special political position in that Member State, the second part of this article to such laws may not apply, provided that the Member State shall ensure that the Commission of the European communities will apply to members of the criminal law article, which provides for the responsibility for the Protocol referred to in article 2 and 3 and the first part of this article. 4. The first, second and third paragraphs shall be without prejudice to any Member State, the applicable rules relating to criminal proceedings and the determination of the competent court. 5. this Protocol shall apply in full accordance with the relevant provisions of the Treaty establishing the European Community, the provisions of the European Community, of the Protocol on the privileges and immunities, the Statute of the Court of Justice and the texts adopted for their application, in connection with the waiver of immunity. Article 5 penalties 1. Each Member State shall take the necessary measures to ensure that article 2 and 3 of the said activities, participation in and promotion of the activity would be punished by effective, proportionate and appropriate criminal penalties, including, at least in cases of serious offences, the deprivation of liberty, which creates prerequisites for the extradition of the person. 2. the first part of this article shall not affect the competent bodies implement the application of disciplinary sanctions against national officials or community officials. In determining the applicable penalty, national courts, which view the criminal, according to their national legal principles may take into account the fact that the person for the same Act is the appropriate disciplinary action. Article 6 jurisdiction 1. Each Member State shall take the necessary measures to establish its jurisdiction over the offences it has established in accordance with 2, 3 and 4, where: (a) a criminal offence is committed in whole or in part within its territory; (b) criminal offender is a national of the Member State concerned or official; (c) a criminal offence is committed against one of 1. persons referred to in article 1, or to any of the article 4, second subparagraph member institutions of the European Community, which is also the national; (d) criminal offender is a community official working for a European Community institution or a body set up in accordance with the Treaty establishing the European Community, and whose location is in the Member State concerned. 2. When submitting the article 9 of the notice referred to in the second subparagraph, each Member State may determine that it will establish its jurisdiction or establish it only in special circumstances or with particular conditions, or the first part of this article (b), (c) and (d) in the cases referred to in points. Article 7 of the Convention in connection with article 3 of the Convention 1, article 5 of the first, second and fourth paragraphs, and article 6 shall apply as if there would be a reference to this Protocol 2, 3, and 4. the activities referred to in article. 2. this Protocol shall be subject to the following provisions: – article 7, indicating that, unless that article 9 of the Protocol provided for in the second subparagraph the period of notice unless otherwise specified, all declarations on article 7 of the Convention, the meaning of the second paragraph also apply to this Protocol, article 9, article 10. Article 8 the Court of Justice of the European Communities 1. any dispute between Member States regarding the interpretation or application of this Protocol the original case to the Council in accordance with the Treaty on European Union, the procedure laid down in title IV, for the purpose of reaching a solution. If no solution is reached within six months, the party to the dispute may refer the case to the Court of Justice of the European communities. 2. any dispute between one or more Member States and the Commission of the European communities concerning article 1, except for in the first subparagraph, point (c)), or 2, 3 and 4 of this article, as well as the Protocol to article 7 of the second paragraph of the third indent, which cannot be resolved by negotiations, may be filed in the Court of Justice of the European communities. Article 9 entry into force 1 this Protocol shall be adopted by Member States in accordance with their respective constitutional requirements. 2. Member States shall inform the Secretary-General of the Council of the European Union of the completion of the procedures which the respective constitutional requirements for adopting this Protocol. 3. this Protocol shall enter into force 90 days after the last State which, at the time when the Council adopted a decision on the approval of the Protocol was a Member State of the European Union, has provided this provided for in the second subparagraph of article statement. If on that day the Convention has entered into force, this Protocol shall enter into force on the date of entry into force of the Convention. Article 10 the accession of new Member States 1. this Protocol shall be open to accession by any State that becomes a member of the European Union. 2. The Council of the European Union the text of this Protocol, drawn up in the language of the acceding State shall be authentic. 3. the instruments of accession shall be deposited with the depositary. 4. this Protocol shall enter into force with respect to any State that accedes to it 90 days after the date of deposit of its instrument of accession or on the date of entry into force of this Protocol if it has not yet entered into force after those 90 days. Article 11 reservations 1. no reservation are not allowed, except those provided for in article 6, second paragraph. 2. any Member State which has entered a reservation may withdraw it in whole or in part by notifying the depositary. Withdrawal shall take effect on the date on which the depositary receives the notification said. Article 12 depositary 1. the Secretary-General of the Council of the European Union is the depositary of this Protocol. 2. the depositary shall publish in the Official Gazette of the European communities information on the progress of adoptions and accessions, declarations and reservations, and also any other notification concerning this Protocol. In witness thereof, the undersigned, being duly authorised thereto, have signed this Protocol. Signed in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic, the original is deposited in the General Secretariat of the Council of the European Union's archives.
Annex to the communication Member States shall decide on the approval of the Protocol, the delegation of Germany 1 statement: "the Government of the Federal Republic of Germany with regard to the Convention on the European Communities ' financial interests (officials) Protection Protocol, shall notify their intention to the negotiations to reach agreement on the jurisdiction of the Court of Justice of the European communities to give a preliminary ruling, the same decisions that were required in relation to the Convention on the protection of the European Communities ' financial interests." 2. the Belgian, Luxembourg and Netherlands delegations overall statement: "the Kingdom of Belgium, the Kingdom of the Netherlands and the Government of the Grand Duchy of Luxembourg considers that the entry into force of this Protocol, to the end of November 1996, is to find an appropriate solution to the question of the Court of Justice of the European communities hold expertise in the interpretation of the Protocol, preferably, taking into account the ongoing discussions on the delegation of power to the Court to enable it to give a preliminary decision with respect to the Convention on the protection of the European Communities ' financial interests." 3. the Austrian delegation's statement: "Austria believes that the competence of the Court of Justice of the European communities for a preliminary ruling a question on the provision of the decision will be decided as soon as favourable and it will continue to work towards this objective."