Finalising the EU Anti-Corruption Directive to harmonise member state laws

February 2026  |  SPECIAL REPORT: CORPORATE FRAUD & CORRUPTION

Financier Worldwide Magazine

February 2026 Issue

With the now finalised Directive on Combating Corruption (Document 16391/25 of 5 December 2025), a new European Union (EU)-wide legal framework is in place that not only standardises corruption offences but also decisively extends the scope of EU law into core areas of criminal law.

The final draft of the Directive contains independent criminal definitions, standardises nine different offences, regulates national jurisdiction, prescribes minimum maximum penalties, mandates preventive measures and requires autonomous authorities for enforcement. Compared to the original European Commission (EC) draft, there have been some dilutions and weakenings.

The regulations partly fall short of well-known anti-corruption norms and in other parts go beyond them. Member states will need to make adjustments. Notably, not only corruption offences but also offences of abuse of office and embezzlement and breach of trust are defined, and a specific, broadly defined money laundering provision is included.

In May 2023, the EC presented a draft Directive intended to replace the existing Framework Decisions 2003/568/JHA and 2017/1371. Intensive and controversial negotiations followed, which is unsurprising given that the subject still counts as a national prerogative in criminal law. Moreover, it deeply affects substantive criminal law and aims to set organisational standards.

The Directive still requires adoption by the European Parliament, which is expected to occur in the first half of 2026. The Directive will enter into force immediately thereafter. Member states will have two years to implement it, and three years regarding the obligation to provide risk-based, tailored measures and to publish national strategies on the prevention and combatting of corruption.

The text of the Directive contains several definitions that are to be interpreted autonomously, not according to national law. For example, ‘property’ is defined as any financial means and assets, including tangible and intangible assets, as well as rights. Documents evidencing a right to an asset are also considered ‘property’. Interestingly, there is no definition of what constitutes an ‘advantage’.

Only from the recitals can it be inferred that non-economic advantages are also included (recital 15). The same applies to the crucial term ‘undue advantage’, which is also undefined and thus left to the member states’ interpretation. This means that an advantage may be considered undue and thus punishable in one member state, but not in another.

Public officials are, as in most national legal systems, all persons performing a public service function in the EU, a member state or a third country. Officials and employees of public enterprises do not necessarily fall under the Directive’s definition of public official.

Particular attention was paid to the definition of high-ranking public officials, although this ultimately only appears as an optional aggravating factor. Notably, in addition to government and regional parliament members, judges of the highest courts, and members of audit offices, important advisers and staff members of ministers are included. In the core area, arbitrators and jurors are also considered public officials.

The nine offences

All nine offences defined in the Directive require intent; negligence is insufficient. These include corruption offences in the strict sense: bribery in the public sector (article 7), bribery in the private sector (article 8) and influence peddling (article 10).

Secondary offences include obstruction of justice (in connection with corruption investigations) (article 12), enrichment through corruption (article 13) and concealment (article 13a), as well as offences beyond corruption, such as embezzlement (article 9) and unlawful exercise of public functions (article 11).

The rules on instigation, aiding and attempt of any offence defined in the Directive are quite complex. All three forms of commission are mandatorily punishable, except for the unlawful exercise of public functions.

Legal entities can also be held criminally liable if a Directive offence is committed for their benefit – for example, if the aim of the act was for the legal entity to profit in any way. Such benefit can include the inflow of funds, liquidity, avoidance of expenses, obtaining contracts, information or official approval, or strengthening market position.

The term is to be interpreted broadly. Liability of legal entities requires the offence to be committed by a decision maker or a person under their direction, such as an employee. If the offence is committed by a person under the direction of a decision maker due to organisational fault, the legal entity is liable.

The definition of bribery in the public sector corresponds to the familiar one. Both the promise, offer or granting of an advantage to a public official and the demand, receipt or acceptance of an offer by a public official are punishable. Notably, under the Directive, only nationally defined undue advantages are punishable – even if a bribery is committed to induce a breach of duty. This is unusual, as typically there are no ‘appropriate’ advantages given to induce a breach of duty.

Bribery in the private sector is regulated similarly to the public sector, with no significant differences (see below for different penalties). Not only managers but any employee can be the target of active or passive bribery. The types of actions for which bribery may occur are not limited; not only legal acts but also factual actions are included.

The Directive’s offence of embezzlement also covers cases of breach of trust. Both public officials and private sector employees who misappropriate, spend or appropriate entrusted funds (not necessarily public funds) for purposes other than intended, either to benefit themselves or a third party or to cause damage, are punishable.

Influence peddling has always been a ‘difficult’ offence because clear cases of criminal behaviour intersect with legitimate influence. The Directive acknowledges this and states in the recitals that legitimate representation of interests and legal representation do not fall under the offence. The salaries of lobbyists and lawyers are therefore not considered undue advantages.

The offence is modelled on bribery. Here, however, the undue advantage is promised, offered or granted to a third party, or demanded, accepted or received by a third party, so that this third party acts to unduly influence a public official. What constitutes ‘undue’ versus ‘appropriate’ influence is not defined, leaving it to national law. Whether the third party ultimately influences or succeeds is irrelevant for the offence.

An offence beyond corruption is the unlawful exercise of public functions. Its inclusion in the Directive was controversial, with debate over changes to the relevant offence in Italy. Accordingly, the Directive’s wording is ‘soft’. Member states are required to criminalise at least certain intentional, serious violations of law by public officials in the exercise of their function. There are no further details on what ‘certain’ or ‘serious’ means, so the provision will remain largely toothless.

Obstruction of justice offences relate expressly only to proceedings concerning offences listed in the Directive. These can be divided into two groups. The first group includes an intimidation offence: anyone who uses violence or threats to obstruct or influence proceedings is punishable. The second group involves advantages: here, not undue advantages but simply advantages. Anyone who promises, grants or offers advantages to induce false testimony or to obstruct or influence testimony or other evidence is also punishable.

Enrichment from corruption is a separate offence. Only public officials can be punished. If they acquire, possess or use an asset, they are punishable if, at the time of receipt, they knew (conditional intent is not sufficient) that the asset originated from the commission of another Directive offence by another public official.

In negotiations with the European Parliament, the offence of concealment was newly added. It is modelled on the money laundering offence but is additional to it. Anyone can be punished under this provision if they intentionally conceal or disguise the nature, location, origin, use, movement, rights or ownership of assets, knowing (conditional intent is not sufficient) that the asset originated from the commission of another Directive offence by another public official.

Penalties

The concept of prescribing at least a certain maximum penalty (‘minimum maximum penalty’) is known from other EU legal acts and is applied here. A minimum maximum penalty of five years is provided for bribery involving a breach of duty by a public official and three years if the action is in accordance with duty.

Such gradation is known from many national laws. Embezzlement, enrichment through corruption and concealment are to be punished with a maximum penalty of at least four years, while bribery in the private sector and influence peddling again have a minimum maximum penalty of three years. There is no minimum maximum penalty for obstruction of justice and unlawful exercise of public functions.

This system means that member states do not have to prescribe minimum penalties, but for the offences listed above, they must provide for a maximum prison sentence that does not fall below the specified duration.

For legal entities, the Directive provides for 5 percent of worldwide annual turnover as the penalty for bribery and embezzlement. This will significantly increase penalties for ‘classic’ property offences in some countries. The different national sanction systems for legal entities will be affected.

For other offences, a 3 percent minimum maximum penalty is provided. Alternatively, member states can set minimum maximum penalties of €40m or €24m. Additional sanctions such as exclusion from procurement procedures, withdrawal of authorisations, judicial supervision, extraordinary termination for public clients or dissolution of the legal entity are possible.

A special mitigating factor for legal entities is prescribed if they have actually implemented an effective compliance programme and proactively and promptly reported the offence to authorities and taken remedial measures. According to the recitals, a compliance programme that is not genuinely implemented would even be considered aggravating.

Conclusion

The Directive introduces a number of definitions and offences already well-known and widespread in national legal systems. Nevertheless, it will require adjustments in those systems.

These adjustments will affect the structure of substantive criminal law more deeply than previous directives. The Directive is not limited to corruption offences in the strict sense, but also introduces regulations in the area of abuse of office and classic property criminal law. Its impact should not be underestimated.

 

Georg Krakow is a partner at DLA Piper. He can be contacted on +43 (1) 531 78 1964 or by email: georg.krakow@dlapiper.com.

© Financier Worldwide

BY

Georg Krakow

DLA Piper

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