The European Parliament and its EU anti-corruption strategyJuan F. López Aguilar
Throughout the 2009-2014 European Parliament (EP) Legislature, I had the honour of chairing the Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee) during five years. In that initial year 2009, the EU saw the entry into force of the Treaty of Lisbon (TL) together with the EU Charter of Fundamental Rights (CDFUE), endowed with "with the same legal value of the Treaties" (Article 6.2 TEU).
But, ironically and dramatically, in parallel, the EU was submerged in the worst crisis of a history of integration that lasts 60 years: the European "Great Recession" turned into "glaciation" of Europe's will, This is to say, the freezing of driving mechanisms that had been propelling supranational integration through the accumulation of the "small steps" spoken of by the so-called "founding fathers", overcoming successive crises and setbacks that had never reached the depth and scope of the one that started in 2008. Its management in a clearly anti-social sense and its terrible handling -triggering episodes, from the "Euro crisis" and the "sovereign debt" to the so-called "refugee crisis", worsening the previous ones but without solving any of them-, have chronicled this slump to the point of challenging the EU in its "raison d'etre", an existential crisis such as we have never seen. I have dealt with all this, with greater depth and scope than is possible in this article, in some of my books (The EU: suicide or rescue, Tirant Lo Blanch, 2013, and Europe: Parliament and Rights - the Landscape After the Great Recession, Tirant Lo Blanch, 2017).
A SPECIFIC STRATEGY AGAINST CORRUPTION
However it happens that, with its entry into force, the TL has enshrined new (and far-reaching) objectives and policies of the EU (Articles 1 to 6 TEU). At the same time, in the TFEU it has expanded the legislative role of the EP on areas hitherto reserved to the Member States: among them, the Area of Freedom, Security and Justice (ELSJ, Volume V TFEU, Articles 62 to 89). This ELSJ determines that, for the first time, the EP acts as a legislator on rights and freedoms (free movement of people in the Schengen area) and a criminal legislator against serious cross-border criminality (Article 83 TFEU): terrorism, illicit trafficking, exploitation of people, corruption and laundering of money from illicit businesses.
So it is easy to understand that the LIBE Committee has become -after the entry into force of the TL in 2009- the EP Legislative Commission with the highest workload (24% of the legislative cases) and greater intensity and frequency of meetings and votes. Because one of the most significant consequences of the entry into force of the TL was precisely the mandatory implementation of a European Internal Security Strategy (Article 70 TFEU) against cross-border crime (Article 83 TFEU), together with a programme of legislative initiatives in criminal matters that gave a base of powers to the European Public Prosecutor's Office (Article 86 TFEU).
From the LIBE Commission we urged then Commissioner of the Interior, Cecilia Malmström, the subsequent implementation of a specific strategy against corruption, on the legal basis of Article 83 TFEU.
We therefore take as a priority the fight against fraud against the financial interests of the EU through criminal law. With these considerations, I had the honour to be a legislative speaker of the PIF Directive (Protection of the Financial Interests of the EU by means of Criminal Law), where we managed to standardize the crimes of fraud, embezzlement, misappropriation and corruption (bribery), while standardised minimum sanctions for the legislation of the European Member States.
However to undertake this approach to the new European Law against corruption, and at the same time prepare the entry into operation of the European Public Prosecutor's Office (on the basis of Eurojust -European Agency for Judicial Cooperation- and in collaboration with OLAF, Office that investigates administrative fraud), as provided in Article 86 TFEU, the LIBE Commission mandated the European Commission the regular undertaking (at least every two years) of an Anti Corruption Report, which is to say a report on the map of the incident corruption in the European Member States (Country Analysis Report). Therefore, a report that we should submit to parliamentary debate in the Plenary Meeting in Strasbourg at least every two years. A mandate that was, in fact carried out in 2012 and 2014, but which has not ever been done since!
CONCERNS ABOUT CORRUPTION IN THE EU HAVE INCREASED
Nevertheless, the reasons and reasons for concern about corruption in the EU have only increased over these years.
So, at the June 2018 plenary session of the EP in Strasbourg, there was an intense debate whose judgment not only sheds light on the evolution of corruption in the EU, but also urges and compels the Commission to act, beginning by committing to its responsibility before the mandates of the EP:
Thus, in the first place, the criminal punishment base required in Article 83 TFEU continues there: the European legislation against serious transnational crime, including corruption, in which the EP is a criminal legislator;
Secondly, the volume of costs and economic damage of corruption in the EU is simply stratospheric. According to the most trustworthy estimates, it amounts to the same as the EU Budget: close to 125,000 million Euros;
Thirdly, it is increasingly evident that both knowledge and the fight against corruption in the EU need a map, a mapping of corruption in the EU. I refer with this expression to a detailed, up-to-date and precise examination of its phenomenology and its territorial distribution, country by country, in the entire of the European Member States (EMSs). Because it is clear that in each country there are specific forms of corruption that has to also be combated with particular instruments. It is not about "impressions" or about conventional wisdom: the empirical evidence clearly indicates that there are some EMSs where corruption is concentrated in certain material areas and certain levels of territorial power: for example, corruption and corruption in Spain and its causes has gravitated preferentially around the urban planning, land management and territorial management powers entrusted to local entities and regional regulations; whereas, in contrast, in the most recent member states (Hungary, Poland, for example) it has concentrated on the management (fraudulent or corrupt) of European funds (Structural and Cohesion Funds), which, strikingly, it was not the case of Italy, Portugal and Spain at the time;
However, finally, and most importantly, corruption has been shown to have a political impact. Clearly political; and electoral, of course. Because there is rampant boredom and widespread discomfort with regard to corruption and the loss of confidence in public resources project on the part of society and the general public in the European Member States. The nausea of growing segments of general public regarding what has roughly been referred to in the journalistic language as "political corruption" (and "of politicians", a quite specific variant of what L. Díez Picazo explained in his outstanding work on the "criminality of the leaders") which has surely played a decisive role in a succession (open, still unfinished) of electoral quakes and abrupt redefinitions of political landscapes (parliamentary spectrums and majorities of government) in the European Member States and, consequently, in the EU.
CORRUPTION IS THE MOTOR OF POLITICAL CHANGE
This explains, in fact for the first time, in the entire democratic history since the Spanish Constitution of 1978, a motion of constructive censure has served to overthrow a government (Rajoy and the PP, beset by a sequence of judicial proceedings related to the Gürtel case) through the investiture (automatic, therefore simultaneous: Articles113 and 114 CE) of an alternative candidate (Pedro Sánchez, of the PSOE). So that, for the first time, a motion of censure triumphed based on the tipping point of disgust -nothing more and nothing less- against corruption, a the fundamentally triggering factor that has prevailed in Congress and in Spanish public opinion. To put it in other terms, corruption is the motor of changes in the political map.
The conclusion cannot be other than a strategy and actions proportionate to the scale of the challenge.
This lead the Commission to incorporate the EU as the leader of the Council of Europe Group against Corruption (a concentric organization that integrates 47 states on the London Treaty of 1949 and the ECHR of Rome in 1950), the so-called GRECO. And of course also, the strictest compliance with the United Nations Convention against Corruption (in force since December 14th, 2005).
Therefore in January 2018, at the Meeting of Coordinators of LIBE (Coordinators Meeting, a sort of Board of Spokespersons in each EP Committee) it was agreed to present a question to the Commission with an oral response in Plenary. and this, fundamentally, with the express purpose of asking the Commission to account for not having complied strictly and in a timely manner with the commitments that it had set itself in 2011 to undertake the fight against corruption in the EU, including -I repeat- the publication (and debate) at least every two years of a detailed Anti-Corruption Report in the EU, together with the participation of the EU itself in GRECO.
And indeed in 2014, the Commission published its first and last Anti-Corruption Report in the EU. They should have published their second mandatory report in 2016: it never came to be. Now, in its debate in the EP, the Commission insists that the (so-called) "European Semester" (European regulatory framework of European controls on the procedure for the preparation of national budgets of the European Member States for the preventive control of macro-magnitudes in the management of their public accounts) that "sufficiently treats" the problems and concerns raised in the fight against corruption.
Faced with the position now held by the Commission, the parliamentary majority clearly objects that the current regulation of the "European Semester" is far from being enough to ensure on a European scale the combating the multiple forms of corruption.
PARTICIPATION IN THE UN CONVENTION AGAINST CORRUPTION
In contrast, from the EP we stress that the cost of corruption amounts to 125,000 million Euros per year (although some sources say that this figure could reach even 900,000 million!). and that the presentation of the biannual report on this crucial issue was a substantive part of the package of measures that the Commission approved at the time, in 2011, mandated by the LIBE Committee, to fight against corruption (together with the participation of the EU in the GRECO, in addition to including measures to support the European Member States to establish and implement their respective national anti-corruption strategies.
As was evident from the debate held in the June 2018 plenary session, the majority of the EP deplored, in its resolutions, that six years later, the concern about corruption in the EU continues to get worse and concern grows; that the committed Report has only materialized on one occasion thus far (in 2014); and that the GRECO negotiations are deadlocked... and that the Union is not fulfilling its obligations under the United Nations Convention against Corruption!
In a nutshell, and to conclude. The EP expresses the awareness and alertness of European general public against corruption.
Moreover, it strongly demanded that the Commission explain why it has not presented the second Report so far; how it intends to implement the recommendations of the "European Semester" to fight against the other aspects and effects derived from corruption in the EU; and how it intends to ensure that the European institutions arm and better equip themselves against any aspects of corruption as a form of cross-border crime in the EU; and its participation in the UN Convention against corruption.