Article 36 — Amendments to Directive (EU) 2017/1371

Directive (EU) 2017/1371 is amended as follows: (1) in Article 2(1), the following point is inserted: (c) high-level official means a high-level official as defined in Article 2, point (9), of Directive (EU) 2026/1021 of the European Parliament and of the Council. (2) Article 4(2) is replaced by the following: 2. Member States shall take the necessary measures to ensure that passive and active bribery in the public sector, when committed intentionally, constitute criminal offences. (a) For the purposes of this Directive, passive bribery in the public sector means the action of a public official who, directly or through an intermediary, requests or receives advantages of any kind, for himself or for a third party, or accepts a promise of such an advantage, to act or to refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union’s financial interests. (b) For the purposes of this Directive, active bribery in the public sector means the action of a person who promises, offers or gives, directly or through an intermediary, an advantage of any kind to a public official for himself or for a third party for him to act or to refrain from acting in accordance with his duty or in the exercise of his functions in a way which damages or is likely to damage the Union’s financial interests. ; (3) Article 7 is amended as follows: (a) paragraph 3 is replaced by the following: 3. Member States shall take the necessary measures to ensure that the criminal offences referred to in Article 3 and in Article 4(1) and (3) are punishable by a maximum term of imprisonment of at least four years where those criminal offences involve considerable damage or advantage. Member States shall take the necessary measures to ensure that, where the act to be performed or the refraining from acting to be performed by the official is not in breach of that official’s duties, the criminal offences referred to in Article 4(2) are punishable by a maximum term of imprisonment of at least four years where those criminal offences involve considerable damage or advantage. Member States shall take the necessary measures to ensure that, where the act to be performed or the refraining from acting to be performed by the official is in breach of that official’s duties, the criminal offences referred to in Article 4(2) are punishable by a maximum term of imprisonment of at least five years of imprisonment where those criminal offences involve considerable damage or advantage. The damage or advantage resulting from the criminal offences referred to in points (a), (b) and (c) of Article 3(2) and in Article 4 shall be presumed to be considerable where the damage or advantage involves more than EUR 100000. The damage or advantage resulting from the criminal offences referred to in point (d) of Article 3(2) and subject to Article 2(2) shall always be presumed to be considerable. Member States may also provide for a maximum term of imprisonment of at least four years in other serious circumstances defined in their national law. ; (b) paragraph 4 is replaced by the following: 4. Where a criminal offence referred to in points (a), (b) or (c) of Article 3(2) or in Article 4(1) and (3) involves damage of less than EUR 10000 or an advantage of less than EUR 10000, Member States may provide for penalties other than criminal penalties. ; (c) the following paragraph is added: 6. Without prejudice to paragraphs 1 to 5 of this Article, Member States shall take the necessary measures to ensure that natural persons who have committed the criminal offences referred to in Articles 3, 4 and 5 of this Directive may be subject to additional criminal or non-criminal penalties or measures which may include those referred to in Article 12(4) of Directive (EU) 2026/1021 ; (4) Article 8 is replaced by the following: Article 8 Aggravating and mitigating circumstances Member States shall take the necessary measures to ensure that where a criminal offence referred to in Articles 3, 4 or 5 of this Directive is committed within a criminal organisation as defined in Framework Decision 2008/841/JHA, this shall be considered to be an aggravating circumstance. Member States may take the necessary measures to ensure that one or more of the circumstances referred to in Article 15 and 16 of Directive (EU) 2026/1021 can, in accordance with the relevant provisions of national law, be regarded as aggravating and mitigating circumstances, in relation to the criminal offences referred to in this Directive. ; (5) Article 9 is replaced by the following: Article 9 Penalties for legal persons 1. Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 6 is punishable by effective, proportionate and dissuasive criminal or non-criminal penalties or measures. 2. Member States shall take the necessary measures to ensure that penalties or measures for legal persons held liable pursuant to Article 6 of this Directive shall include criminal or non-criminal fines, the amount of which shall be proportionate to the gravity of the conduct and to the individual, financial and other circumstances of the legal person concerned, and may include other criminal or non-criminal penalties or measures that are proportionate to the gravity of the conduct, such as those referred to in Article 14(2) of Directive (EU) 2026/1021. Insofar as legal persons are held liable pursuant to Article 6(1) of this Directive, for the criminal offences referred to Articles 4(2) and (3) of this Directive, Article 14(3) of Directive (EU) 2026/1021 is applicable. ; (6) Article 12 is amended as follows: (a) paragraphs 2, 3 and 4 are replaced by the following: 2. Member States shall take the necessary measures to enable the investigation, prosecution, trial and adjudication of criminal offences referred to in Article 3, in Article 4(1) and in Article 5 which are punishable by a maximum term of imprisonment of at least four years, for a period of at least five years from the commission of the criminal offence. 3. By way of derogation from paragraph 2, Member States may establish a limitation period that is shorter than five years, but not shorter than three years, provided that such limitation period may be interrupted or suspended in the event of specified acts. 4. Member States shall take the necessary measures to enable the investigation, prosecution, trial and adjudication of criminal offences referred to in Articles 4(2) and (3) which are punishable by a maximum term of imprisonment of at least four years, for a period of at least eight years from the commission of the criminal offence. ; (b) the following paragraphs are added: 5. By way of derogation from paragraph 4, Member States may establish a limitation period that is shorter than eight years, but not shorter than five years, provided that such limitation period may be interrupted or suspended in the event of specified acts. 6. Member States shall take the necessary measures to provide for a limitation period of at least five years from the date of the final conviction for a criminal offence referred to in Article 3, Article 4(1) and Article 5 that enables the enforcement of the following penalties imposed following that conviction: (a) a penalty of imprisonment of more than one year; or alternatively (b) a penalty of imprisonment for a criminal offence punishable by a maximum term of imprisonment of at least four years. 7. By way of derogation from paragraph 6, Member States may establish a limitation period that is shorter than five years, but not shorter than three years, provided that such limitation period may be interrupted or suspended in the event of specified acts. 8. Member States shall take the necessary measures to provide for a limitation period of at least 10 years from the date of the final conviction for a criminal offence referred to in Article 4(2) and (3) that enables the enforcement of the following penalties imposed following that conviction: (a) a penalty of imprisonment of more than one year, or alternatively (b) a penalty of imprisonment for a criminal offence which is punishable by a maximum term of imprisonment of at least four years. 9. By way of derogation from paragraph 8, Member States may establish a limitation period that is shorter than 10 years but not shorter than five years, provided that the period may be interrupted or suspended in the event of specified acts..