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The European Commission has proposed on Wednesday a series of legislative measures to criminalize and harmonize crimes associated with corruption and sanctions at the level of the entire EU. Among them, an element has special interest in our country: that convictions for embezzlement have a maximum penalty 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 meet the demands of its pro-independence allies.

This is only the first step in the long and complicated Community legislative process. The initiative belongs to the Commission, but now it passes the ball to the European Parliament and the Council of the EU, that is, to the ministers, who must first agree internally and then between institutions, so that a final text comes out of it. It is a long process, which can take many months and years and can change the content, in small details or in its entirety, because it needs the consensus of all and it is not uncommon that in the most sensitive dossiers, politically more complicated or that become explosive in electoral moments are delayed until more propitious moments.

Criminal legislation is very sensitive and that is why so far only bribery has a generalised 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 comes out like this, without major changes in the substance, our country would have to transpose it with a maximum term, again modifying upwards what was recently amended to collect various mitigating factors.

The spirit of what is launched today, in any case, goes totally in the opposite direction to the reform made by Pedro Sánchez's team. It is no surprise because when the Government launched the reform of the Criminal Code the messages from Brussels were clear and reminded him 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 opposed to what Brussels tries 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.

Very sensitive issue

Every time a criminal offence is touched upon which is enshrined in Union legislation, the Commission must, of its own motion, ascertain whether national law remains aligned with that of the Union. When the penalties are raised there is no problem, but if they are lowered there may be conflict. But as this newspaper reported at the time, in the Commission it squeaked a lot that a capital decided to touch the under the criminal types related to corruption, an endemic evil and that with hundreds of billions of euros in new Community funds was a most sensitive issue. 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 its position.

The proposed directive includes a harmonised definition of what would be embezzlement: "The assignment, disbursement, appropriation or use by a public servant of property whose administration has been entrusted to him directly or indirectly contrary to the purpose for which they were intended". What the Commission seeks is that the punishment for these crimes should be a maximum penalty of at least five years, whether there is a profit motive or not or whether that administration of public property is direct or not.

Sources of the European Commission indicate that this part of the Spanish reform, which distinguishes, would not necessarily contradict the directive, but the penalties do, because with the mitigating factors introduced by the recent reform the Criminal Code now contemplates, articles 432bis and 433, sentences of between six months and three years or from one to four, respectively.

The directive also proposes to harmonise the definition and threshold of maximum penalties for other corruption-related offences, 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 opposed, but which in national legislation, for different reasons, traditions and circumstances are full of nuances, mitigating factors and patches. So the processing can be very complicated.

"Corruption is like a cancer. If allowed to run, 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 national level, but also at European level. Today's package will raise the level of definitions and penalties for corruption offences across the EU and help authorities catch and punish criminals, whether in the public or private sector, no matter where they occur," 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 tireless 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 wider set of corruption offences across the EU. To succeed in the fight we need to build a new culture of integrity that permeates all levels of society," said Vice President Margaritis Schinas.

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