Today, we are analysing Directive (EU) 2026/1021 of the European Parliament and of the Council of 29.4.2026 on the fight against corruption is an act of criminal law. It establishes minimum standards on the definition of corruption offences and the accompanying criminal and non-criminal sanctions (Article 1).
As a directive (and not a regulation), this act is not directly effective against private entities – it needs to be transposed into national law (Article 37). Until this happens, the entrepreneur cannot derive either rights or obligations from the directive itself (except in exceptional situations of so-called direct vertical effect, which do not apply to the imposition of obligations on individuals).
However, this does not mean that business should not be interested in it now. Firstly, it will be effectively introduced into national law. Therefore, it is worth having more time to prepare. In addition, it concerns business processes – which are broadly understood purchases and sales. Therefore, it is worth making sure that the processes of acquiring suppliers and recipients are fair and transparent. Finally, the introduction and enforcement of due diligence in the organization can be of great practical importance later.
Chapter II of the Directive (Articles 3 to 11) consolidates the catalogue of acts considered to be corruption offences:
- bribery in the public sector (Article 3) – active and passive;
- bribery in the private sector (Article 4) – applies to persons holding managerial functions or working in private sector entities;
- misappropriation (Article 5);
- paid protection (Article 6);
- unlawful exercise of public functions (Article 7);
- obstruction of justice (Article 8);
- enrichment as a result of corruption offences (Article 9);
- hiding assets derived from corruption offences (Article 10);
- incitement, aiding and abetting (Article 11).
From the perspective of entrepreneurs, the wording of Article 4 is important, which directly covers corruption in business transactions between private entities:
‘Member States shall take the necessary measures to ensure that the following acts, when committed intentionally and in the course of an economic, financial, business or commercial activity, constitute an offence: (a) making a promise, offering or giving to a person who, in any capacity, is in a managerial position or works in an entity operating in the private sector (…) an undue advantage (…) made in order for that person to take or refrain from acting in breach of his or her duties.’
Chapter III of the Directive (Articles 20 to 31) imposes preventive and institutional obligations addressed to state authorities:
- prevention of corruption (Article 20) – information campaigns, preventive tools (asset declarations, transparency of party financing, revolving door regulations), periodic assessment of the sectors most exposed to corruption;
- National anti-corruption strategies (Article 21) – the obligation to adopt and publish a strategy setting out objectives and priorities;
- anti-corruption authorities (Articles 22 to 23) – the obligation to provide at least one prevention and at least one anti-corruption authority, equipped with adequate resources;
- training (Article 24), investigative tools (Article 26), statistical data collection (Article 34).
Article 20(4) indicates that preventive measures are also to be available in the private sector, however, like the rest of Chapter III, the obligation to provide them lies with the state, not with the entrepreneur:
‘Member States shall ensure that corruption prevention measures are available in the public and private sectors, tailored to the specific risks in the area of activity.’
The act confirms the need to ensure the possibility of liability for legal persons (Article 13)
‘Member States shall ensure that legal persons may be held liable for offences (…), provided that those offences have been committed for the benefit of those legal persons by any person holding a managerial position in the structure of the legal person concerned (…).’
Liability also arises when the offence was made possible by a lack of supervision or control on the part of the managing person (Article 13(2)).
Sanctions (Article 14) – fines for legal persons may reach, depending on the category of offence, up to 5% of the global turnover of a legal person or EUR 40 million (bribery, embezzlement) or 3% of turnover or EUR 24 million (paid protection, obstruction of justice, enrichment) – Article 14(3). The catalogue of additional sanctions includes, m.in, exclusion from public procurement, deprivation of access to EU funding, judicial supervision or judicial liquidation (Article 14(2)).
The Directive regulates a properly functioning compliance system in an entity as a mitigating circumstance (Article 16):
„(…) one or more of the following circumstances could be considered (…) as a mitigating circumstance: (…) c) the legal person (…) before or after the commission of the offence has implemented effective internal controls, ethical awareness programmes and compliance programmes to prevent corruption; (d) the legal person (…) upon detection of the crime promptly and voluntarily discloses it to the competent authorities and implements remedial measures.”
Recital 29 of the preamble contains an important caveat – compliance programmes “for the sake of appearance” should not be treated as a mitigating circumstance, which is to be taken into account by the courts when assessing their actual effectiveness.
As regards the protection of whistleblowers (Article 25), the Directive extends the material scope of Directive (EU) 2019/1937 to reports of corruption offences under Articles 3 to 11. In practice, this means that entities already covered by the national law on the protection of whistleblowers will also have to cover corruption violations within the meaning of this Directive in their internal reporting channels.
Deadline for transposition: 1 June 2028 – basic deadline; 1 June 2029 – for obligations related to national anti-corruption strategies and systemic risk analysis (Article 37(1)). Implementation into the Polish legal system will require changes, in particular to the provisions of the (Polish) Criminal Code, the provisions on the liability of collective entities or the protection of whistleblowers.
