Recital (16)

The exertion of influence over public decision-makers with a view to obtaining an undue advantage can seriously hamper the proper functioning of public administrations. To adequately tackle it, the constituent elements of the offence of trading in influence should cover two different situations, when carried out intentionally. First, the offence should cover the promising, offering or giving of any undue advantage aimed at the exertion of improper influence with a view to obtaining an undue advantage from a public official. Second, it should also cover the request or receipt of any undue advantage, or the acceptance of an offer or a promise thereof, in order to exert improper influence with a view to obtaining an undue advantage from a public official. Such conduct should constitute a criminal offence irrespective of whether the influence was claimed or real and whether the influence was exerted and whether or not the influence led to the outcome intended. The offence should not cover the legitimate exercise of acknowledged forms of interest or legal representation which can seek to legitimately influence public decision-making but do not entail an undue exchange of advantages. Such forms of interest representation, such as advocacy, are often carried out in a regulated environment precisely so that a lack of transparency does not allow them to become gateways to corruption. Having in place well-functioning additional rules on disclosing conflicts of interest, on revolving doors or on the financing of political parties, can also help to avoid grey areas and prevent undue influence. For the purposes of the offence of trading in influence, the undue advantage to exert improper influence includes remuneration for those forms of representation where such activities are carried out in a manner fulfilling the other elements of the offence, including due to a relevant violation of the applicable rules.