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The Fight against Corruption from the Perspective of Judicial EU Cooperation in Criminal Matters

Updated: Aug 13


1.     Introductory Remarks

Considerations on corruption should begin with a brief explanation of definitional aspects. It is important to note that this phenomenon evolves at several levels. In poorly developed state structures, it is widespread and affects many aspects of social life. In contrast, in highly developed countries, corruption is a marginal phenomenon mainly concerning economic transactions and large sums of money. Technological and civilisational changes should also be taken into account: recently, corruption has increasingly taken the form of cybercrimes. Nevertheless, there are exceptions to these general patterns.

The term “corruption” derives from the Latin word “corruptio”. According to the “Dictionary of Foreign Words”, it means decay, demoralisation, social disintegration, rot, bribery, graft or venality.[1]

On the other hand, corruption can be defined in multiple ways as for its socio-economic (general) sense. Attention should be given to actions such as:

1.     the use of public power for private purposes;

2.     the conduct of public authorities and civil service personnel, resulting in civil servants enriching themselves illegally and unjustifiably or contributing to the enrichment of persons close to them through the improper use of entrusted power;

3.     an act committed by anyone who, driven by their direct or indirect interests, violates the system of rules they are responsible for enforcing;

4.     the violation of the principle of separating private life from professional life.[2]

Definitional issues concerning corruption could constitute a separate monograph. They should be summarised with the legal concept of corruption, according to which it is the abuse of public office for private gain, and moreover, promising, offering, giving, demanding, or accepting by any person directly or indirectly, any undue, financial, non-financial, or other benefit, or accepting an offer or promise of such benefits in exchange for acting or refraining from acting in the performance of public functions or in the course of business activities.[3]

Corruption is a problem addressed by many fields of study. Undoubtedly, it is also a subject of interest in legal sciences, which aim to develop solutions for preventing, detecting and countering this phenomenon. Corruption has gained new significance in connection with the intensive development of the European integration, including the Schengen Agreement[4] and the enlargement of the European Union to include Central and Eastern European countries.

 

 

2.     Corruption in the Context of National Law: The Case of Poland

Legal anti-corruption solutions were known as early as in the Antiquity.[5] Similarly, in Poland, as early as the times of the First Polish Republic and the Second Polish Republic, solutions were introduced into the legal system to combat this phenomenon.[6]

After World War II, Western Europe chose a path of close integration, which impacted their legal systems, including the harmonisation of regulations. The Central and Eastern European countries joined these processes much later. This has led to a certain dualism. Within sovereign states, two systems for preventing and countering corruption have developed: national and international (EU). Importantly, these systems must be complementary to each other, which is not an easy task.

First, it should be noted that at the national level, there are coherent and comprehensive legal solutions that address the recognition, prevention and counteraction of corruption. These include institutional, substantive and formal legal solutions.

Regarding the institutional aspect, there are several legal protection bodies that deal with the issue of corruption on a daily basis. The judiciary plays a key role here, including independent courts and tribunals. However, the executive branch plays a crucial role in prosecuting criminals. Primarily, this includes the prosecution service, which, according to Article 64(1) of the constitution, safeguards the rule of law and oversees the prosecution of crimes.

In addition to the prosecution service, other legal protection bodies that collaborate with it also have competencies in combating corruption. These include:

1.     Police – a uniformed and armed formation serving society, intended to protect people’s safety and maintain public order and security;

2.     Internal Security Agency – responsible for matters of internal state security and its constitutional order;

3.     Central Anti-Corruption Bureau – a special service for combating corruption in public and economic life, particularly in state and local government institutions, as well as combating activities detrimental to the state’s economic interests;

4.     Military Police – a distinct and specialised service within the Armed Forces of the Republic of Poland;

5.     Border Guard – a uniformed and armed formation designated to protect the state border, control border traffic, and prevent and counteract illegal migration;

6.     Internal Inspectorate of the Prison Service – a distinct unit within the Prison Service tasked with preventing and counteracting crimes among Prison Service officers and within facilities under the Prison Service’s control;

7.     National Revenue Administration – a specialised government administration performing tasks related to the collection of taxes, customs duties, fees, and non-tax budgetary receivables, protecting the state’s fiscal interests and the customs territory of the European Union, as well as providing service and support to taxpayers and payers in fulfilling their tax obligations and supporting entrepreneurs in fulfilling customs duties;

8.     Military Counterintelligence Service – a special service responsible for protecting against internal threats to the state’s defence, security, and the combat readiness of the Armed Forces of the Republic of Poland (SZ RP) and other organisational units subordinate to or supervised by the Minister of National Defence;[7]

9.     Environmental Protection Inspectorate – established to control compliance with environmental protection regulations and to study and assess the state of the environment;

10.  Supreme Audit Office – controls the activities of government administration bodies, the National Bank of Poland, state legal entities and other state organisational units.

In the substantive law aspect, the focus is directly on criminal provisions that sanction corrupt acts. Primarily, this includes the Penal Code, which defines several corrupt acts (e.g., bribery – Article 228 of the Penal Code, electoral corruption – Article 250a of the Penal Code). The Fiscal Penal Code and the Commercial Code are also significant. Additionally, provisions can be found in specific acts such as the Act on Sport or the Act on the Reimbursement of Medicines, Foodstuffs Intended for Particular Nutritional Uses, and Medical Devices, as well as the specific Act on the Liability of Collective Entities for Offenses Threatened with Punishment.[8]

The final element of the national anti-corruption system is the formal law aspect. The Code of Criminal Procedure plays a crucial role here, enabling the implementation of substantive criminal law norms. This legal act grants the competent authorities the power to prosecute criminals and gather evidence. It is also essential to mention laws regulating the activities of individual services and the authority to conduct operational and reconnaissance activities, which strongly interfere with civil rights and freedoms but may sometimes be the only way to obtain information about a crime. The formal law aspect is complemented by other procedures that prevent crimes, such as the Public Procurement Law, the Act on Restrictions on Conducting Business Activities by Persons Performing Public Functions, and the Act on the Return of Unjustly Obtained Benefits at the Expense of the State Treasury or other state legal entities.

From the above, it is clear that national law, exemplified by Poland, has a coherent system for combating corruption. Moreover, it is flexible and provides institutions capable of responding to previously unknown behaviours.

 

3.     Corruption in the Context of International Law: The Case of the European Union

The international context of combating corruption can be structured similarly to how it was done at the national level. However, due to the specific nature of the issue, a slightly different systematisation is required here. In the case of the European Union, a distinction must be made between the legal aspect (which includes both substantive and formal aspects) and the institutional aspect.

It should be emphasised that the European Union has undergone significant evolution, from an entity initially aimed at facilitating economic cooperation in Europe to a centralised institution with specialised agencies and competencies in increasingly diverse areas of national governance.

Articles 82-86 clearly state that judicial cooperation in criminal matters is based on the principle of mutual recognition of judgments and judicial decisions and includes measures to approximate the laws of Member States in several areas. Instruments such as the European Investigation Order and the European Arrest Warrant can be cited here.[9]

EU law regulates almost every aspect of social life, including corruption. The Treaty of Lisbon provided a stronger foundation for developing a justice area in criminal matters and granted the European Parliament new powers.[10] Notable legal acts in the field of corruption within the EU framework include:

1.     Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA (the Cybercrime Directive);

2.     Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union;

3.     Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (the Market Abuse Directive);

4.     Directive 2014/62/EU of the European Parliament and of the Council of 15 May 2014 on the protection of the euro and other currencies against counterfeiting by criminal law, and replacing Council Framework Decision 2000/383/JHA;

5.     Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law;

6.     Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing;

7.     Directive (EU) 2018/1673 of the European Parliament and of the Council of 23 October 2018 on combating money laundering by criminal law;

8.     Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders;

9.     Directive (EU) 2019/713 of the European Parliament and of the Council of 17 April 2019 on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA.

Alongside the legal foundations outlined above, the institutional aspect is of great importance. Over the years, some competencies have been delegated to the European Union, which has established bodies responsible for their execution. On one hand, this is justified by the transnational nature of some crimes. On the other hand, it significantly intrudes into the competencies of national states.

The most important institutions of the European Union in this regard include the European Anti-Fraud Office (OLAF) and the European Border and Coast Guard Agency (Frontex). However, in terms of judicial and police cooperation, the key institutions are: the European Union Agency for Criminal Justice Cooperation (Eurojust), the European Union Agency for Law Enforcement Cooperation (Europol), and the European Public Prosecutor’s Office (EPPO). The creation of these bodies impacts the functioning of national law enforcement agencies.[11] As a result, several cases may fall under the jurisdiction of EU agencies, imposing cooperation obligations on national law enforcement in these specific instances. Additionally, EU agencies establish special networks that program and coordinate cooperation to increase efficiency at the prevention stage, which includes organisational and informational obligations imposed on national bodies.

The above presents the system of preventing corruption in the European Union. Compared to national solutions, it is not as clear-cut and depends on the attitudes of individual Member States participating in it.

 

4.     Conclusions

Based on the above considerations, it is essential to highlight the problematic issue of cross-border corruption. National solutions are territorially limited. Therefore, they cannot be applied universally. In many cases, the only way to recognise, detect or prevent a crime is through international cooperation within specific institutions.

The European Union has a wide range of tools that can be utilised for this purpose. However, they are sometimes not effectively used. Cooperation among the judicial systems of Member States should be based on voluntary collaboration and networking rather than top-down institutionalisation, which does not improve the situation but instead paralyses the actions taken by Member States’ authorities. An example of this is the sluggish response of the authorities in the so-called Qatargate scandal.[12]

It is worth considering whether, instead of institutionalisation, which is the last step before federalisation, Member States could employ other solutions. Often, bilateral or small group cooperation can be more effective. It is not necessary to create permanent bodies and procedures that, through unclear regulations and interpretations by EU courts, might usurp the competencies of sovereign states. For combating corruption, especially in the context of cyber threats, decision-making centres should be located much closer to the national states. The Member States are on the front lines and will have established networks of cooperation with other countries, without the need to notify Brussels about specific actions.

Strong efforts to standardise legal regimes in both formal and institutional dimensions can negatively affect the approach of the Member States towards international cooperation and their review of proposed solutions. Therefore, it is essential to consider whether the current law enforcement bodies are firstly necessary and secondly effective. Subsequently, it is crucial to outline directions for revising the European system of prevention of corruption.

 


[2] M. Brol, Urynkowienie gospodarki a korupcja – doświadczenia państw europy środkowej i wschodniej, Studia.

Ekonomiczne. Zeszyty Naukowe Uniwersytetu Ekonomicznego w Katowicach nr 378/2019, s. 148-149.

[6] M. Marmola, A. Olszanecka-Marmola, Korupcja i przeciwdziałanie korupcji w Polsce. Wymiar psychospołeczny i prawnopolityczny, Katowice 2021.

[7] T. Bojanowski, Istota i przeznaczenie karnoprocesowe czynności operacyjno-rozpoznawczych, Lublin 2023.

[9] G. Krzysztofiuk, Perspektywy współpracy sądowej w sprawach karnych w Unii Europejskiej, Prokuratura i Prawo Nr 7-8/2015.

[11] C. Nowak, Prokuratura Europejska – idea się urzeczywistnia, Prokuratura i Prawo 3/2013, 19-45 p; A. GRUSZCZAK, Europejski urząd policji (europol) – okoliczności i geneza powstania, Politeja 2(12)/2009, 213-234 p.; A. GRUSZCZAK, III filar Unii Europejskiej po Tampere: wnioski i perspektyw, Studia Europejskie / Centrum Europejskie Uniwersytetu Warszawskiego 3/2000, 87-106 p.; A. LACH, Europejska pomoc prawna w sprawach karnych, Toruń, Towarzystwo Naukowe Organizacji i Kierownictwa „Dom Organizatora”, 2007 RV.

[12] EU standards chief calls for tougher lobbying rules amid Qatar scandal. Politico Europe. Archived from the original on 12 December 2022. Retrieved 13 December 2022, https://www.politico.eu/article/eu-ombudsman-emily-oreilly-calls-for-ethics-rules-revamp-qatar-lobbying-scandal-erupts-eva-kaili-european-parliament/ [Access: June 25, 2024].

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