1 Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union, on the fight against corruption involving officials of the European Union or officials of Member States of the European Union, from here on called the Anti-corruption Convention, (in O.J. 1997 C 195, p. 2). It will be analyzed in detail in par. IID, infra. Google Scholar

2 Cf. United Nations General Assembly Resolution on corruption in 1997, General Principles, A/RES/51/59 Action against corruption, 28 January 1997.Google Scholar

3 Communication de la Commission au Conseil et au Parlement Européen sur une politique anticorruption de l'Union [COM (97) 0192], Bruxelles, 21/05/97.Google Scholar

4 For a deeper analysis of the influence that corruption may exercise on competition and the free market, see the Report on the Communication from the Commission to the Council and the European Parliament on a Union policy against corruption [COM (97) 0192], The European Parliament, Committee on Civil Liberties and Internal Affairs, Rapporteur: R. Bontempi, Doc. A4-0285-98.Google Scholar

5 An interesting analysis on the costs of corruption in terms of economic growth is contained in V. Tanzi, Corruption around the world. Causes, consequences, scope and cures, in International Monetary Fund – Staff Papers, Washington, 1998, p. 559; see also Corruption: integrity improvement initiatives in developing countries, by UNDP & OECD Development Centre, New York, 1998. As regards its consequences in light of modern international law, cf. M.R. Saulle, Lezioni di diritto internazionale, Napoli, 1998, p. 66.Google Scholar

6 Corruption was explicitly taken into consideration by the Action Plan to combat organised crime adopted by the Justice and Home Affairs Council on 28/04/97 and by the European Council of Amsterdam on 17/06/97. (in O.J. 1997 C 251, p. 1.)Google Scholar

7 Strengthening measures to bar corruption and fraud is one of the main goals at the European level. Cf. Council Resolution of 18/12/97 laying down the priorities for co-operation in the field of Justice and Home Affairs for the period from 01/01/98 to the date of entry into force of the Treaty of Amsterdam (in O.J. 1998 C 11, p.1].Google Scholar

8 In the absence of international or Community rules determining jurisdiction, the various national jurisdictions consider themselves to be competent to deal with offences committed on their own territory, those committed partly on a foreign territory, and those which, although committed exclusively abroad, produce effects within the national borders. On the other hand, co-operation involving international requests for judicial assistance has been hindered. Protection against cross-border crimes is defective to the same extent, while most of the offences (notably fraud and corruption) against the European Union's budget are carried out at a multinational level (especially in the European transit and tourism sector). For further details, see Report on criminal proceedings relating to protection of the Union's financial interests, The European Parliament, Committee on Budgetary Control, Rapporteur: Theato, D., Doc. A4-0082/98.Google Scholar

9 For further details regarding the national criminal provisions for combating corruption in the Member States, see Measures to prevent corruption in the Member States of the European Union, Juridical Affairs Series, Working paper of the European Parliament, JURI 101 EN, Luxembourg, 03-1998; Savona, E. – Mezzanotte, L., La corruzione in Europa, Rome, 1998.Google Scholar

10 Only the U.S. provides for an explicit outlawing of foreign official corruption with the 1977 Foreign Corrupt Practices Act. U.S. enterprises have often claimed that they were disadvantaged with respect to those coming from countries where the corruption of foreign officials is not prohibited. This can be considered another reason why the U.S. has pushed at international level (notably at UN, OECD, WTO) for the adoption of Conventions against this crime. In the UK, the Prevention of Corruption Act outlaws corruption “by any member, officer or servant of a public body.”Google Scholar

11 There are other relevant differences that must be mentioned. For example, not all MSs foresee the prosecution of legal persons if a bribe is paid on behalf of a company. As regards immunities, in certain countries, elected officials, Ministers or Members of Parliament are not regarded as public officials and are not subject to the same laws normally provided to punish corruption among public officials. According to some national rules, trading in influence (i.e. paying a bribe to a person who has influence over an official) is not necessarily an offence. As regards the aim of bribing, officials must act in breach of their official duties in order to be punished in some legal orders. Thus, in some systems, no crime is committed when an official accepts a bribe and awards a contract to a company which should have received the contract in any event. Corruption of domestic civil servants carries with it the sanction of imprisonment in all MSs, but for a widely varying duration (from 6 months to 10 years) depending on the MS and the gravity of the crime. Only a few MSs provide for special criminal offences in order to deal with corruption in the private sector, namely when a person in a private economic entity is bribed to act in a way which is in breach of his/her duties. Some MSs have already outlawed private corruption to some degree, whereas in others civil or administrative measures are the only remedies available. Similar disparities also exist in the area of financing political parties, where there are differences in approach (public support, private assistance or hybrid systems) and in the transparency of financial conduct of political parties. A number of MSs specifically permit fiscal facilities for the bribery of foreign officials if the bribers are recognised as conducting customary business practised in the territory in question.Google Scholar

12 According to this provision, MSs shall “co-operate with the Commission to ensure that the [EC] appropriations are used in accordance with the principle of sound financial [management].” As a consequence, a more specific approach based upon this principle should be considered within the framework of the First Pillar, the legitimate aim here is the safeguarding of both the legal security and equality of economic operators through the unification of penal protection for the EU budget. Still remaining on the subject of the First Pillar, there has been some exploitation of the possibilities involved. On the grounds of Article 235 TEC (which allows the Council to take the appropriate measures when the Treaty has not provided the necessary power to do so i.e. implied powers), a “horizontal” Regulation (Council Regulation 2988/95 on the protection of the EC financial interests, in O. J. 1995, L 312/1), seeking to reduce control disparities between sectors of the budget, has been adopted. It sets up a common legal framework in all areas covered by the Communities’ policies, but confines itself to administrative measures and sanctions in order to allow the “competent authorities of the MS” to stipulate the law under which the potentially culpable behaviour of economic actors are to be assessed. Another remarkable example of a legally binding instrument laid down in an area closely related to criminal matters on the basis of the First Pillar is the Directive on money laundering (Directive on prevention of the use of the financial system for the purpose of money laundering, in O. J. 1991 L 166, p. 77).Google Scholar

13 See Delmas-Marty, M., Union Européenne et droit pénal, in Common Market Law Review, The Netherlands, 1997, p. 610. In effect, according to its author, Article 205 TEC has provided the basis for a proposed supranational penal code to be directly applicable to all the MSs (Corpus Juris portant dispositions pénales pour la protection des intérěts financiers de l'Union Européenne, sous la direction de M. Delmas-Marty, Direction Générate du Contrôle Financier, Paris 1997).Google Scholar

14 The MSs have considered the recognition of an a priori ECJ competence as being unacceptable and as an excessive control over their sovereignty (it must be always remembered that JHA action is ruled on an intergovernmental level). This is why Article K.3.2 TEU, in attempting to make up the lack of judicial control, provides for the possibility that Conventions “…may stipulate that the Court of Justice shall have jurisdiction to interpret their provisions and to rule on any dispute … in accordance with such arrangements as they may lay down.” The result is, however, a lack of judicial control. The TEU has been also accused for its lack of democratic control by the EP (Article K.6 TEU states that it shall be “regularly” informed and “consulted”, taking into consideration its views). As it was explained in the previous pages, the Treaty of Amsterdam has partially made up for it.Google Scholar

15 Monar, J., JHA in the Treaty of Amsterdam: reform at the price of fragmentation, in European Law Review, London, 1998, p. 320.Google Scholar

16 Only common positions are still not embodied within the competence of the ECJ and the EP: it is therefore quite evident that their character is more political than legal. Further details are contained in Gonzalez Alonso, L. N., La jurisdiction comunitaria en el nuevo espacio de libertad, seguridad y justicia, in Revista de Derecho Comunitario, Madrid, 1998, p. 501.Google Scholar

17 O'Keeffe, D., “Recasting the Third Pillar,” in Common Market Law Review, The Hague, 1995, p. 893.Google Scholar

18 Tampere European Council, 15-16/10/99, in http://www.presidency.finland.fi/trame.asp.Google Scholar

19 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 (in O.J. 1995 C 316, p. 49).Google Scholar

20 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 (in O.J. 1996 C 313, p. 2).Google Scholar

21 For a precise and official interpretation of the Protocol, it refers to the Explanatory Report to the Protocol to the Convention on the Protection of the European Communities’ Financial Interests (in O.J. 1998 C 11, p. 5).Google Scholar

22 Rightly so, the definitions in the criminal law of the official's own State is given priority. This implies that in a case where a national official of the prosecuting MS is involved, the relevant national definition is applicable. By consequence, when an official of another MS is involved, the definition of the law in the MS should normally be applied by the prosecuting MS.Google Scholar

23 The concept of the pursued advantages is itself quite wide: it may comprise not only material objects (money, goods, etc.), but also anything which may be of an indirect or intangible interest for the official (e.g. settlement of the corrupted person's debt).Google Scholar

24 It is important to underline that the principle de quo was established by the ECJ in its famous sentence on the Greek maize case [Case 68/88, Commission vs. Greece, E.C.R. (1989), p. 2985]. Nevertheless, it must be noted that the same Article 4, at its par. 3, foresees a possible derogation in those MSs where the criminal liability of government ministers is governed by special legislation applicable in specific national situations.Google Scholar

25 Protocol drawn up on the basis of Article K.3 of the Treaty on European Union on interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the Protection of the European Communities’ Financial Interests (in O.J. 1997 C 151, p. 2).Google Scholar

26 Second 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 (in O.J. 1997 C 221, p. 2).Google Scholar

27 Supra 1.Google Scholar

28 These provisions must be interpreted in such a way that MSs have an obligation to introduce criminal liability only when an advantage is received before an act has been performed. Article 11 may be intended as an expression of an “upwards” harmonisation (namely the European laws cannot be lower than existing levels of citizen security thereby imposing a “downwards harmonisation” on those countries with more advanced provisions). It must be noted that a similar provision is not provided for by the first Protocol.Google Scholar

29 According to the Explanatory Report on the Convention, within the meaning of Article 6 nothing prevents a MS from providing these for objective criminal liability by virtue of the action of others, without being necessary to prove fault, negligence or failure to exercise supervision on their part [see Explanatory Report on the Convention on the fight against corruption involving officials of the European Communities or Officials of MSs of the EU (http://www.europa.eu.int/eurlex/en/lif/dat/en_498Y1215_01.html)].Google Scholar

30 Through this provision, the Convention differs from the earlier Protocol in the area of co-operation. A joint reading of the Protocol and the PFI Convention establishes that, when the corruption of officials concerns at least two MSs and constitutes a criminal offence, then those States would have a duty to co-operate effectively in relation to investigation, prosecution and punishment. This could be achieved by way of mutual assistance, extradition, transfer of proceedings, enforcement of sentences passed in another MS and/or other means of co-operation. This has the effect of limiting co-operation to criminal proceedings. It reflects the opinion, expressed by the GMC of the CoE, that a comprehensive Anti-corruption strategy should not be confined to the criminal sphere alone.Google Scholar

31 The principle is based on the Convention on the application of the ne bis in idem rule, signed in Brussels on 25/05/87, which was already used in the context of European Political co-operation (see the similar provisions contained in the Schengen Agreement). This is particularly important in cases of cross-border crime, which are liable to be prosecuted in more than one MS when it is not possible to centralise the prosecution in a single country.Google Scholar

32 This process has been referred to as one of “rolling ratification”. In that sense White, S., Protection of the financial interest of the European Communities: the fight against fraud and corruption, The Hague-London-Boston, 1998.Google Scholar

33 Communication de la Commission au Conseil et au Parlement Européen sur une politique anticorruption de l'Union, cit. note 3 supra. Google Scholar

34 See Report on a draft joint action on making corruption in the private sector a criminal offence, Committee on Civil Liberties and Internal Affairs, The European Parliament, Rapporteur: Bontempi, R., Doc. A4-0348/97, 05/11/97.Google Scholar

35 Joint Action of 22/12/98 adopted by the Council on the basis of Article K.3 TEU on corruption in the private sector (in O.J. 1998 L 358, p. 2).Google Scholar

36 Recommendation 6 reads: “A comprehensive policy against corruption should be developed, taking into account the work already carried out also in other international fora, in order to enhance the transparency in public administration, at the level of both the MSs and the Communities (see political guideline no. 13). This policy should primarily focus on elements of prevention, addressing such issues as the impact of defective legislation, public-private relationships, transparency of financial management, rules on participation in public procurement, and criteria for appointments to positions of public responsibility, etc. It should also cover the area of sanctions, be they of a penal, administrative or civil character, as well as the impact of the Union's policy relations with third countries.” Cit. note 6 supra. Google Scholar

37 See Report on a draft Joint Action on making corruption in the private sector a criminal offence, cit. note 34 supra. Google Scholar

38 In order to have a broader idea of the European priorities in this field, see Report on the Communication from the Commission to the Council and the European Parliament on a Union Policy against corruption, cit. note 4, supra. Google Scholar

39 Communication de la Commission au Conseil et au Parlement Européen sur une Politique anticorruption de l'Union, cit. note 3 supra. Google Scholar

40 See Measures to prevent corruption in the MSs, cit. note 9 supra. Google Scholar

41 The two major EU trading partners — U.S. and Japan — have differing grounds for disallowing tax deductions for the bribery of foreign officials. All 15 MSs have adopted the OECD recommendation on tax deductibility setting out that “countries which do not disallow the deductibility of bribes to foreign officials reexamine such treatment with the intention of denying this deductibility.” It would appear therefore that all the MSs are in principle in favour of disallowing such tax deductibility. Some MSs are, however, concerned that they will be at a competitive disadvantage if other major trading nations continue to allow it.Google Scholar

42 Directives EEC 93/36, EEC 93/37 and EEC 92/50.Google Scholar

43 As the Commission has stressed in its Communication [COM (97) 192 def., see note 2 supra] establishing some form of comprehensive blacklisting system applicable to areas where Community finances are at risk could be considered. This would include the area of external assistance and would vary from sector to sector (in some cases it may be appropriate for a blacklisted enterprise to be automatically excluded from certain benefits, alternatively, a register of legal and natural persons who have been blacklisted could be established so that national and Commission services could be alerted of the dangers of dealing with those particular operators).Google Scholar

44 Council Regulation 2988/95, cit. note 12 supra. Google Scholar

45 Opinion of the Economic and Social Committee on Development aid, good governance and the role of the socio-economic interest groups (in O.J. 1997 C 287, p. 44).Google Scholar

46 Cf. Title 5. “The fight against corruption,” Ibid. Google Scholar

47 Technical assistance for containing corruption in the public sector in Eastern Europe has been provided to a limited degree under the PHARE programme (e.g. the joint CoE/EU OCTOPUS program on corruption and organised crime in Central and Eastern Europe). In this framework the joint SIGMA project with the OECD is also relevant as it addresses the problem of public procurement.Google Scholar

48 See Le contrôle et la protection des finances de l'Union Européenne en vue de l'élargissement, Fiche Thématique no. 16, Task-force Elargissement, Parlement Européen, Luxembourg 19/03/98, PE 167.330 FR.Google Scholar

49 La coopération dans les domaines de la justice et des affaires intérieures dans le processus d'élargissement, Fiche thématique n. 25, Task-force Elargissement, Parlement Européen, Luxembourg 17/06/98, PE 167.690 FR.Google Scholar

50 Joint action of 29/06/98 adopted by the Council on the basis of Article K.3 of the TED establishing a system for collective evaluation of the enactment, application and effective implementation by the applicant countries of the acquis of the European Union in the field of JHA (in O.J. 1998 L 191, p. 8).Google Scholar

51 Cf. A. PAGLIARO, La lotta contro la corruzione e la recente esperienza italiana di “mani pulite,” in Rivista Trimestrale di Diritto Penale dell’ Economia, Padova, 1997, p. 1109.Google Scholar

52 The judicial inquiry promoted by the team of Milan judges, which in 1992 discovered the extensive and deep-rooted corruptive relations characterising political and business relations (so-called phenomenon of “tangentopoli,” i.e. city of bribery), was named “mani pulite” (i.e. clean hands) in order to symbolise the need to tackle bribery by implementing a clean political-economic system in the entire national territory.Google Scholar

53 This is why bill no. 3915, relative to the ratification and execution of international acts for the fight against corruption, at its Article 3 states that only those who exercise correspondent functions are assimilated to public officials, while officials are assimilated to persons charged with public functions in all the other cases. The bill was approved by the Italian Parliament on 19 September 2000, see Disegno di legge 3915-D, Atto Senato, XIII Legislatura, Ratifica ed esecuzione dei seguenti Atti internazionali elaborati in base all ‘Articolo K.3 del Trattato sull'Unione europea: Convenzione sulla tutela degli interessi finanziari delle Comunità europee, fatta a Bruxelles il 26 luglio 1995, del suo primo Protocollo, fatto a Dublino il 27 settembre 1996, del Protocollo concernente l'interpretazione in via pregiudiziale, da parte della Corte di Giustizia delle Comunità europee, di detta Convenzione, con annessa dichiarazione, fatto a Bruxelles il 29 novembre 1996, nonché della Convenzione relativa alla lotta contro la corruzione nella quale sono coinvolti funzionari delle Comunità europee o degli Stati membri dell’ Unione europea, fatta a Bruxelles il 26 maggio 1997 e della Convenzione OCSE sulla lotta alla corruzione dipubblici ufficiali stranieri nelle operazioni economiche internazionali, con annesso, fatta a Parigi il 17 dicembre 1997. Delega al Governo per la disciplina della responsabilità amministrativa delle persone giuridiche e degli enti privi di personalità giuridica. Google Scholar

54 Article 320 extends the application of Article 318 to the person who is not charged with a public service (imprisonment will be reduced by one third), while Article 321 lays down that sanctions provided by Article 318 must be enforced on “whoever gives money or any other utility to the public official.”Google Scholar

55 As regards the so-called “antecedent” and “subsequent” “propria” corruption, it must be noted that the difficulty to verify when the relative pactum sceleris was concretely agreed led the Italian legislator to unify the two hypotheses of propria corruption quoad poenam through L. no. 86 of 26/04/90.Google Scholar

56 Likewise as regarding impropria corruption and even in the case of propria corruption, Article 320 extends the application of Article 319 to the person not charged with a public service (with a reduction of one third) and to the “corrupter” who gives or promises the undue advantage.Google Scholar

57 Corte di Cassazione 26/09/89.Google Scholar

58 Precisely, if somebody is unjustly imprisoned for 5 years as a result of corruption in judicial acts, the sanction will vary from 4 up to 12 years. If the undue imprisonment is longer than 5 years or includes a life sentence for somebody, the sanction will comprise from 6 up to 12 years of imprisonment.Google Scholar

59 Indeed, as regards autonomous penalisation of concussione, it must be noticed that in the U.S. the wording of extortion seems correspond exactly with Italian concussione, while in Italian extortion corresponds more specifically with blackmail. Concussione, as it is known in the Italian law, must be distinguished also from the so-called “concussion” which exists in some MSs (cf., for instance, Article 243 of the Belgian Criminal Code), namely to receive or request what one knows should be not paid for rights, taxes, customs, interests or salaries.Google Scholar

60 A precise definition, in legal terms, of concussione, may be found in the “Programme of action against corruption” adopted by the Committee of Ministers of the Council of Europe. In this document, different offences considered bribery in some countries are listed and they include “the demand of a bribe by public official, where the bribe-giver considers that he, in view of his situation vis-à-vis the bribe-taker is forced to give the bribe, thus excluding punishability of the bribe-giver” (item 9, appendix I). In addition, it is also considered the hypothesis of the “acceptance or demand of a bribe by a public official, where the bribe-giver mistakenly believes that he is under a legal obligation to give the bribe, thus excluding punishability of the bribe-giver” (item 11, appendix I). See, in particular, Appendix I, “Tentative list of corruption offences,” “I. Domestic bribery. Offences considered as bribery in some national laws”, items 9, 10 and 11.Google Scholar

61 According to the predominant orientation of Corte di Cassazione (e.g. 26/03/96), “concussione” is defined as a vice of private person's will which impedes setting up relations on equal terms.Google Scholar

62 In effect, this crime is of so much importance to the national legislator that one must mention a bill for the introduction of this crime into the Italian criminal system presented during the X Legislature (Riforma dei crimini contro la Pubblica Amministrazione, Progetto A.C. 2441 presentato il 07/03/88, Min.Vassalli).Google Scholar

63 Indeed, according to the above-mentioned “Programme of action against corruption” of the Council of Europe, in Italy the phenomenon of corruzione ambientale provides a behaviour typically seen as corrupt, but which depends to a great extent on local cultural traditions and the social climate (ambiente). The included annex to the Programme of action considers as bribery related offence also the case of the “acceptance, without an express demand, of a bribe, where the bribe-giver considers that he, in view of his situation vis-à-vis the bribe-taker, is forced to give the bribe, thus excluding punishability of the bribe-giver” (item 11, appendix I).Google Scholar

64 Current criminal rules no longer seem to be adequate: a maximum of 5 years of imprisonment is provided for corruption thus placing the crime in a band of medium gravity, while it is a real dangerous one. Considering the phase-difference of its gravity with its sanction, there have been demands that penalties be made more serious and aligned with those for the crime of “concussione.” Google Scholar

65 Cf. FORTI, G., Unicità o ripetibilità della corruzione sistemica? Il ruolo della sanzione penale in una prevenzione ‘sostenibile’ dei crimini politico-amministrativi, in Rivista Trimestrale di Diritto Penale dell'Economia, Padova, 1997, p. 1086.Google Scholar

66 Commissione Speciale per l'esame dei progetti di legge recanti misure per la prevenzione e la repressione dei fenomeni di corruzione. Google Scholar

67 For a complete outline of legislative projects in matters of corruption, see “Dossier provvedimento. Modifiche ai reati contro la Pubblica Amministrazione,” A. C. 781 e abb., no. 344, XIII Legislatura, maggio 1997, Servizio Studi, Camera dei Deputati. Google Scholar

68 The necessity of a deep-going reform was already proposed by the judges of the “mani pulite-pool” in 1994 (the so-called “Proposta di Cernobbio”). Their proposals have been taken in consideration, with partial modification, in particular through “Proposte di legge n. 781 (d'iniziativa dei Deputati Pecoraro Scanio e Siniscalchi), no. 2606 (d'iniziativa del Deputato Cento) e no. 2610 (d'iniziativa del Deputato Piscitello)”, XIII Legislatura. Google Scholar

69 As regards crimes committed by a public official, it must be underlined that disciplinary measures have been provided on a scale ranging from cautions (minimum) to progressive degrees of severity (i.e. commitment for trial corresponds to the transfer, a first conviction to suspension from work, a sentence of not less than one year to definitive discharge) (Disegno di legge Bassanini). Google Scholar

70 Cf. “Proposta di legge no. 1212, presentata il 24/05/96 (d'iniziativa dei Deputati Bonito et al.)” and “Proposta di legge no. 2582, presentata il 29/10/96 (d'iniziativa dei Deputati Trantino et al.).”Google Scholar

71 The ratio legis evidently aims at stimulating collaboration with the judiciary authorities. The technique of providing “rewarding models” is already contained in the Italian legislative system in the framework of terrorist crimes (see L. 15/1990 and L. 304/1982 for dissociation and active collaboration). Other examples are to be found in countries with common law systems, like the U.S. and UK, where the “guilty plea” involves an agreement between the public prosecutor and the defence in order to give impunity or lesser sentences to those who testify. The new French Criminal Code also provides penalty exemption for members of criminal gangs who “avant toute porsuite” reveal the identity of the other participants to the competent authorities (Article 450-2). Similar provisions may also be found in the Austrian Penal Code (par. 240 on money falsification, par. 277 on criminal conspiracy) and the German Penal Code (par. 84 V on maintenance of unconstitutional political parties, par. 129 VI on criminal association). For further details, see STELLA, F., “Relazione sulla proposta di legge in materia di corruzione,” dalla c.d. Proposta di Cernobbio, 1994.Google Scholar

72 Proposta di legge no. 1780, presentata il 31/05/84 (d'iniziativa dei Deputati Azzaro et al.). Google Scholar

73 See “Proposta di legge no. 781, presentata il 13/05/96, XIII Legislatura (d'iniziativa dei Deputati Pecoraro Scanio e Siniscalchi).”Google Scholar

74 “Proposta di legge no. 623, presentata il 09/05/96, XIII Legislatura (d'iniziativa del Deputato Galdelli).” Google Scholar

75 “Proposta di legge no. 2610, XIII Legislatura (d'iniziativa dei Deputati Piscitello et al.).” Google Scholar

76 “Proposta di legge no. 725, presentata il 10/05/96, XIII Legislatura (d'iniziativa dei Deputati Martinat et al.).” Google Scholar

77 Cf. “Proposta di legge no. 4339, presentata il 17/11/97. Norme in materia di responsabilità dei movimenti politici a seguito di finanziamenti illeciti, XIII Legislatura (d'iniziativa dei Deputati Li Calzi et al.).” Google Scholar

78 Commissione mista giustizia-tesoro per la riforma organica del diritto societario, istituita il 30 luglio 1998 (c.d. Commissione Mirone). Google Scholar

79 See, for instance, “Proposte di legge no. 3635 (d'iniziativa del Deputato Meloni) e no. 3636 (d'iniziativa del Deputato Veltri), presentate il 30/04/97 in tema di modifiche al codice civile in materia di gestione delle società.” Google Scholar

80 For an extensive analysis, see G. M. Flick, Riforma delle società di capitali non quotate, Giornata di studio dei commercialisti del Triveneto, Venice, 20/02/99 (to be published).Google Scholar

81 See “Proposta di legge no. 3015/S recante misure per la prevenzione dei fenomeni di corruzione” (http://www.giustizia.it/002/dis-legge/p13015.htm).Google Scholar

82 This according to the Protocol on Immunities and Privileges (Brussels 08/04/65), the new Article 4 of Attachment I to EP Regulation (17/07/96) foresees that European deputies are subjected in matters of declaration of salary, to obligations deriving from their national legislation of the MS they came from.Google Scholar

83 Supra note 53, as recently as modified.Google Scholar

84 For further details, see “Dossier Provvedimento: Atti internazionali sulla lotta alla corruzione,” A. C. 5491-B, no. 1024/1, XIII Legislating, maggio 2000, Servizio Studi, Camera dei Deputati.Google Scholar

85 In Italy a programmatic norm concerns those bills which defer to a future legislative intervention in order to specify some technical aspects. Yet, Article 11 contains precise guidelines to be observed: the future law shall foresee exclusively administrative sanctions for corruption or fraud inflicted by criminal judges only on private collective entities. However, it must be noticed that, on 15 September 2000, the special Commission of the Justice Department (so called Commissione Grosso, entrusted to reform the Italian Criminal Code) presented the preliminary Project: once approved, for the first time an entire section of the Criminal Code (Titolo VII, Responsabilità delle persone giuridiche, Article 123 et seq.) shall contain specific rules on criminal responsibility of legal persons (see Commissione Ministeriale per la riforma del Codice Penale istituita con D. M. 1 ottobre 1998. Progetto preliminare di riforma del Codice Penale, Parte Generale; in www.giustizia.it/news/index.htm).Google Scholar

86 It must be born in mind that the EU has formulated a coherent strategy on corruption in accordance with the most important international forums (the OECD, WTO, CoE, OAS, UN). Both institutions include all the EU MSs amongst their Members and can be considered as precursors in the fight against corruption EU has adopted two Common Positions in relation to OECD and CoE work. These will firstly ensure compatibility with the work carried out within the EU, and therefore avoid unnecessary duplication, incompatibility or jeopardy. Secondly, these initiatives will also co-ordinate the position of the MSs within negotiations conducted or being conducted in these international contexts, in order to increase the scope of their initiatives. Cf. Common Position of 06/10/97 defined by the Council on the basis of Article K.3 of the Treaty on European Union on negotiations in the Council of Europe and the OECD relating to corruption (in O.J. 1997 L 279, p. 7); Second Joint Position of 13/11/97 defined by the Council on the basis of Article K.3 of the Treaty on European Union on negotiations held in the Council of Europe and the OECD on the fight against corruption (in O.J. 1997 L 320, p. 1).Google Scholar

87 OECD Convention in combating bribery of officials in international business transactions, OECD Working Papers, Paris, 1998. It consists of only 17 articles, but what was unusual was its entry in force in that it required 5 of the 10 countries with the largest export shares, representing at least 60% of export in the aggregate, to ratify the Convention for it to become effective. The national legislation to implement it can be broader, but not narrower. The Convention will not result in uniformity, but should — if properly implemented — establish a minimum standard of conduct. 34 countries (29 OECD Members plus Argentina, Chile, Brazil, Bulgaria and Slovenia) signed it and it came in force in 11 countries on 15 February 1999, which ratified it. The threat to a good result lies in the fact that some of the signatory States themselves are fiscal paradises and problems of international juridical co-operation still exist. For further details, see OECD Commentaries on the Convention on Combating Bribery of officials in international business transactions, adopted by the Negotiating Conference on 21/11/97 (http://www.oecd.org/daf/cmis/bribery/20nov2e.htm).Google Scholar

88 An exhaustive panorama of measures adopted in this field by European Institutions may be offered by consulting the Joint Action of 29/06/98 adopted by the Council, on the basis of Article K.3 TEU, on good practice in mutual assistance in criminal matters (in O. J. 1998 L 191, p. 1); Joint Action of 29/06/98 adopted by the Council on the basis of Article K.3 TEU, on the creation of a European judicial network (in O.J. 1998 L 191, p. 4); Report on the independence, role and status of the Unit for the Coordination of Fraud Prevention (UCLAF), The European Parliament, Committee on Budgetary Control, Rap.: Bosch, H., Doc. A4-0297/98, 22/09/98.Google Scholar

89 Conso, G. – Grevi, V., Profili del nuovo codice di procedura penale, Padova, 1996, p. 792 ss.Google Scholar

90 For the problem of new legal remedies against corruption, see Flick's, G.M. more detailed survey in L'azione di contrasto alla corruzione nell'attuale contesto internazionale ed europeo, Scuola Interforze di Polizia, 23/02/99, Rome (to be published).Google Scholar

91 In order to abolish the bank secrecy definitively, it was decided at the Santa Maria da Feira European Council (Portugal, 19–20 June 2000) to endorse a step-by-step development towards realization of the exchange of information as the basis for the taxation of savings income of non-residents. With a view to preserve the competitiveness of European financial markets, as soon as agreement has been reached on the substantial content of the Directive and before its adoption, the EU shall enter into discussions with the U.S. and key third countries (Switzerland, Liechtenstein, Monaco, Andorra, San Marino) to promote the adoption of equivalent measures in those countries; at the same time the MSs concerned commit themselves to promote the adoption of the same rules in all relevant dependent or associated territories in the Caribbean, in the Channel Islands and Isle of Man. Once sufficient reassurances with regard to the application of the same/equivalent measures in the named countries have been obtained, the Council will decide on the adoption and implementation of the Directive on the taxation of savings no later than 2002. In the medium term, MSs shall exchange information on savings income with other MSs or operate a withholding tax (the rate should be at least 20–25 %). The latter is the case of Austria and Luxembourg which already declared they cannot accept a move to drop banking secrecy for non-residents, so they retain its final withholding tax for residents and its present banking legislation as far as domestic residents are concerned. In any case, MSs shall agree to implement exchange of information no later than seven years after the entry into force of the directive, in order to achieve the ultimate objective of the EU: the concrete abolition of the bank secrecy by the 2010 (see europa.eu.int/council/off/june2000/june2000_en.pdf).Google Scholar

92 Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein, 20/02/79, E.C.R. (1979), p. 649.Google Scholar

93 See Export credit insurance and the fight against international corruption, Memorandum submitted to the EU-Institutions by Transparency International-Brussels, 26/02/99.Google Scholar

94 According to data from the Italian Treasury and Ufficio Italiano Cambi, during the last three years more than 400.000 billions (around 160.000 per year) have been moved to off-shore countries, in particular the Bahamas and the Cayman Islands. In Italy laundered money passes through banks (53%) and trade activities (28%) while 15% is transferred unlawfully abroad.Google Scholar

95 For further details, cf. First Report on allegations regarding fraud, mismanagement and nepotism in the European Communities, Committee of Independent Experts, 15/03/99 (http://www.europarl.eu.int/experts).Google Scholar

^* Source: European Commission Translation Service, English Style Guide, List of Common Abbreviations and Acronyms, Annex 10. Http://europa.eu.int/comm/translation/en/stygd/index.htm.