The European Commission has proposed this Wednesday a series of legislative measures to classify and harmonize the crimes associated with corruption and the sanctions at the level of the entire EU. Among them, one element is of special interest in our country: that convictions for embezzlement have a maximum sentence of five years, whether or not there is profit, which is above what is contemplated by the Spanish Penal Code after the recent reform promoted by the Government to satisfy the demands of their pro-independence allies.
This is only the first step in the long and complicated Community legislative process. The initiative corresponds to the Commission, but now the ball is passed to the European Parliament and the Council of the EU, that is, to the ministers, who must first reach an agreement internally and then between institutions, so that a final text can emerge from there. It is a long procedure, which can take many months and years and the content can change, in small details or in its entirety, since it requires everyone’s consensus and it is not uncommon that in the most sensitive, politically complicated dossiers or that become explosives at electoral moments are delayed until more propitious moments.
Criminal law is very sensitive and that is why so far only bribery has a widespread status in the Union. So the directive outlined today may have a very different face when it goes through all the filters. But if it goes like this, without major changes in the substance, our country would have to transpose it with a maximum term, once again modifying the recently amended upwards to collect various extenuating factors.
The spirit of what was launched today, in any case, goes completely in the opposite direction to the reform made by Pedro Sánchez’s team. It is not surprising because when the Government launched the reform of the Criminal Code, the messages from Brussels were clear and reminded them that in a few months, before the summer, they were going to launch this anti-corruption package asking for harsher punishments. What Spain did was not illegal, or irregular, but totally opposite to what Brussels is trying to instigate and that it was mandatory to launch now to try to approve it before the end of the European legislature, in May 2024.
Every time a criminal offense that is included in Union legislation is touched upon, the Commission has, ex officio, to see if national law continues to be aligned with that of the Union. When penalties are raised there is no problem, but if they are lowered there may be a conflict. But as this newspaper reported at the time, in the Commission it creaked a lot that a capital decided to touch down on criminal offenses related to corruption, an endemic evil and that with hundreds of billions of euros in new community funds it was a matter of the most sensitive. Especially when our country assumes the presidency of the Council on July 1 and must be in charge of guiding the discussion in the Council as an honest broker, an objective actor regardless of their position.
The directive proposal includes a harmonized definition of what would be embezzlement: “The allocation, disbursement, appropriation or use by a public servant of goods whose administration has been entrusted directly or indirectly against the purpose for which they were intended “. What the Commission is looking for is that the punishment for these crimes should be a maximum sentence of at least five years, whether there is a profit motive or not or if that administration of public goods is direct or not.
Sources from the European Commission indicate that that part of the Spanish reform, which distinguishes, would not necessarily contradict the directive, but the penalties would, because with the mitigating factors introduced by the recent reform, the Penal Code now includes articles 432bis and 433 , sentences of between six months and three years or from one to four, respectively.
The directive also proposes to harmonize the definition and threshold of maximum penalties for other corruption-related crimes, such as bribery in both the public and private sectors, influence peddling, abuse of power, obstruction of justice and illicit enrichment. Categories with which in principle no one can be against, but in national legislation, for different reasons, traditions and circumstances are full of nuances, mitigations and patches. So the process can be very complicated.
“Corruption is like a cancer. If it is allowed to run free it will suffocate our democracy and destroy its institutions. As with cancer, we need to improve prevention and instruments of repression and sanctions, not only at the national level, but also at the European level Today’s package will raise the bar on definitions and sanctions of corruption offenses across the EU and help authorities catch and punish criminals, whether in the public or private sector, no matter where they occur,” he said. said Vice President Vera Jourova, responsible for Values ??and Transparency.
“The incalculable cost of corruption on the lives of millions of people is devastating and the Union’s relentless mission must be to eradicate it wherever it occurs. The new rules we are proposing today will raise the bar and extend criminal sanctions to a broader set of corruption crimes across the EU. To succeed in the fight we need to build a new culture of integrity that permeates all levels of society,” agreed Vice President Margaritis Schinas.
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