Authentic Texts
This Agreement is drawn up in duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Irish, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, each text being equally authentic.
ARTICLE 2.13
Duration and Termination
1. This Agreement shall remain in force for an unlimited period.
2. The European Union or Mexico may notify, in writing, the other Party of its intention to terminate this Agreement. The termination shall take effect six months after the date of receipt of that notification.
PROTOCOL ON THE PREVENTION OF AND FIGHT AGAINST CORRUPTION
SECTION A
General Provisions
ARTICLE 1
Objectives
1. The Parties affirm their commitment to prevent and fight corruption in international trade and investment and recall that corruption in trade and investment undermines good governance and economic development and distorts international competitive conditions.
2. The Parties recognise that corruption can affect international trade and investment as it may compromise market access opportunities and erode commitments aimed at creating a level playing field. Corruption affecting trade and investment can act as a non-tariff barrier for investors and enterprises seeking to participate in international trade and investment.
3. The Parties recognise the importance of fighting against corruption of public officials and in the private sector affecting international trade and investment.
4. The Parties recognise that corruption is a transnational issue linked to other forms of transnational and economic crime, including money-laundering, and should be addressed with a multi-disciplinary approach and close cooperation at the international level.
5. The Parties recognise the need to build integrity and enhance transparency within both the public and private sectors and that each sector has complementary responsibilities in that regard.
6. The Parties recognise the importance of regional and multilateral initiatives, including at the United Nations, the WTO, the Organisation for Economic Co-operation and Development (hereinafter referred to as "OECD"), the Financial Action Task Force (hereinafter referred to as "FATF"), the Council of Europe and the Organisation of American States, to prevent and fight corruption in matters affecting international trade and investment and commit to working jointly to encourage and support appropriate initiatives.
7. The Parties reiterate their shared commitment pursuant to Goal 16 of the 2030 Agenda for Sustainable Development to substantially reduce corruption and bribery in all their forms.
8. The Parties recognise the important work undertaken by the G20 Working Group on Anticorruption and reaffirm their support to the relevant High Level Principles agreed in the G20.
9. The objective of these provisions is to set a bilateral framework of commitments to prevent and fight corruption affecting international trade and investment in the relationship between the Parties.
ARTICLE 2
Scope
This Protocol applies to the prevention of and fight against corruption with respect to any matter covered by Part III of this Agreement.
ARTICLE 3
Relation to Other Agreements
Nothing in this Protocol shall affect the rights and obligations of the Parties under the United Nations Convention against Corruption, adopted by the General Assembly of the United Nations on 31 October 2003 at United Nations Headquarters in New York (hereinafter referred to as "UNCAC"); the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, done at Paris on 21 November 1997; the Inter-American Convention Against Corruption, done at Caracas on 29 March 1996; the relevant legal instruments adopted by the Council of Europe; and any other relevant international legal instruments adopted by each Party.
SECTION B
Measures to Fight Corruption
ARTICLE 4
Active and Passive Bribery of Public Officials
The Parties recognise the importance of fighting against active and passive bribery of public officials affecting international trade and investment. To that end, they reaffirm in particular their commitments pursuant to Articles 15 and 16 of UNCAC to adopt or maintain such legislative and other measures as may be necessary to establish as criminal offences active and passive bribery of public officials and active bribery of foreign public officials and officials of public international organisations, when committed intentionally, and to consider adopting such legislative and other measures as may be necessary to establish passive bribery of foreign public officials and officials of public international organisations as criminal offences, when committed intentionally.
ARTICLE 5
Active and Passive Bribery in the Private Sector
1. The Parties recognise the importance of fighting against active and passive bribery in the private sector affecting international trade and investment. To that end, they recall the need to comply with their commitments under UNCAC and reaffirm in particular their commitments pursuant to Article 21 of UNCAC to consider adopting such legislative and other measures as may be necessary to establish as criminal offences active and passive bribery in the private sector, when committed intentionally in the course of economic, financial or commercial activities.
2. The Parties recognise that facilitation payments made to public officials constitute a form of bribery, hinder efforts to fight corruption and incentivise bribery in foreign countries. To that end, the Parties reaffirm their commitment pursuant to paragraph 4 of Article 12 of UNCAC to disallow the tax deductibility of expenses that constitute bribes and, where appropriate, other expenses incurred in furtherance of corrupt conduct.
ARTICLE 6
Corruption and Money Laundering
The Parties, recognising the interlinkage between corruption and money laundering, reaffirm their commitments pursuant to Article 23 of UNCAC.
ARTICLE 7
Liability of Legal Persons
The Parties recognise that establishing the liability of legal persons and ensuring effective, proportionate and dissuasive criminal or non-criminal sanctions are necessary to advance the global fight against corruption in international trade and investment. To that end, the Parties reaffirm their commitments pursuant to Article 26 of UNCAC and recall their support to the G20 High Level Principles on the Liability of Legal Persons for Corruption.
SECTION C
Measures to Prevent Corruption in the Private Sector
ARTICLE 8
Responsible Business Conduct
1. The Parties recognise the importance of preventive measures and responsible business conduct, including financial and non-financial reporting obligations and corporate social responsibility practices in averting corruption; and the role of trade in pursuing this objective.
2. The Parties recognise the necessity of taking into account the needs and constraints of small and medium-sized enterprises (hereinafter referred as "SMEs") in terms of reporting obligations.
3. The Parties recall their support to the OECD Guidelines for Multinational Enterprises in relation to the fight against corruption.
ARTICLE 9
Financial and Non-Financial Reporting
1. In line with their commitments under UNCAC and in accordance with the fundamental principles of their law, the Parties recognise the importance of enhancing accounting and auditing standards in the private sector as a means of preventing corruption and recognise in particular that the following measures, among others, could achieve this objective:
(a) ensuring that private enterprises, taking into account their structure and size, and notably the specific needs of SMEs, implement measures to assist in preventing and detecting acts of corruption, which may include compliance with a corporate governance code, internal audit function or sufficient internal controls; and
(b) ensuring that the accounts and required financial statements of those private enterprises are subject to appropriate auditing and certification procedures.
2. The Parties shall encourage listed enterprises, banks and insurance companies to report on the measures they have taken to prevent and fight corruption. The Parties shall take such measures as may be necessary on the disclosure of such reports.
3. The Parties shall take any measures that may be necessary, in accordance with their laws and regulations, on the disclosure of financial statements and maintenance of accounting and auditing standards.
4. Each Party shall endeavour to consider adopting or maintaining measures requiring external auditors to report to the competent authorities any suspected acts regarding the offenses specified in Articles 4, 5 and 6. If that reporting is required, the Parties shall ensure that external auditors making those reports reasonably and in good faith are protected from legal action regarding breaches of any contractual or legal restriction on the disclosure of information.
ARTICLE 10
Transparency in the Private Sector
1. The Parties recognise that transparency can contribute to prevent corruption in the field of international trade and investment and to that end recall their commitments pursuant to paragraph 2 of Article 12 of UNCAC. In particular, the following measures could achieve the objective of ensuring greater transparency in the private sector involved in commercial activities relating to trade and investment under Part III of this Agreement:
(a) promoting the development of standards and procedures designed to safeguard the integrity of relevant private entities, including codes of conduct for the correct, honourable and proper performance of the activities of business and all relevant professions and the prevention of conflicts of interest, and for the promotion of the use of good commercial practices among businesses and in the contractual relations of businesses with the State;
(b) preventing the misuse of procedures regulating private entities, including procedures regarding subsidies and licences granted by public authorities for commercial activities; and
(c) promoting measures to prevent conflicts of interest by imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, if such activities or employment relate directly to the functions held or supervised by those public officials during their tenure.
ARTICLE 11
Measures to Prevent Money Laundering
1. Recognising the importance of preventing money laundering and its potential impact on international trade and investment, the Parties confirm their commitment to adopting or maintaining a comprehensive domestic regulatory and supervisory regime for financial institutions and designated non-financial businesses and professions (hereinafter referred to as "DNFBPs"), in accordance with existing commitments under UNCAC and the FATF Recommendations. The Parties shall promote the implementation of the FATF Recommendations 24 and 25 on Transparency and beneficial ownership of legal persons and on Transparency and beneficial ownership of legal arrangements, and the G20 High Level Principles on Beneficial Ownership Transparency.
2. In accordance with the UNCAC commitments, FATF Recommendations and G20 High Level Principles referred to in paragraph 1, the Parties shall adopt or maintain measures that:
(a) ensure that their domestic laws include a definition of "beneficial owner" that captures the natural person who ultimately owns or controls a customer or the natural person on whose behalf a transaction is being conducted, including also those natural persons who exercise ultimate effective control over a legal person or arrangement;
(b) ensure that legal persons incorporated in their territory are required to obtain and hold adequate, accurate and current information on their beneficial ownership;
(c) ensure that trustees of express trusts or other legal arrangements with a structure or function similar to express trusts maintain adequate, accurate and current information on their beneficial ownership, including of settlors, any protector, trustees and beneficiaries or class of beneficiaries, and any other natural person exercising ultimate effective control over the trust;
(d) require financial institutions and DNFBPs, understood to be those defined by the FATF Recommendations, to identify the customer and verify that customer's identity, as well as to identify the beneficial owner and take reasonable measures to verify the identity of the beneficial owner, so that the financial institution or DNFBP is satisfied that it knows who the beneficial owner is;
(e) put in place mechanisms to ensure that the relevant competent authorities as defined by the law of the Parties have access to information on the beneficial ownership in a timely manner;
(f) ensure that their competent authorities participate in information exchanges on beneficial ownership with international counterparts in a timely and effective manner;
(g) require financial institutions and DNFBPs to perform enhanced due diligence notably in relation to politically exposed persons, who are understood to be individuals who hold or have held prominent public functions within the territory of either Party or internationally as well as their family members and close associates; and
(h) ensure that an effective supervision of the above-mentioned obligations is in place, including through the establishment and enforcement of effective, proportionate and dissuasive sanctions for non-compliance.
3. The Parties recognise the usefulness of establishing registers to provide, in a timely manner, accurate and up to date information on beneficial ownership for legal persons and legal arrangements, to facilitate the prevention of and the fight against corruption and money laundering.
SECTION D
Measures to Prevent Corruption in the Public Sector
ARTICLE 12
Conduct of Public Officials
1. The Parties reaffirm their support to the G20 High Level Principles on Asset Disclosure by Public Officials adopted at the G20 Leaders' Summit in Los Cabos on 18-19 June 2012, as well as the Conduct Principles for Public Officials for Mexico of the Asia-Pacific Economic Cooperation, adopted at the 14th Economic Leaders' meeting in Hanoi in 2006, and the Recommendation on codes of conduct for public officials adopted by the Council of Europe on 11 May 2000 for the European Union.
2. The Parties reaffirm their commitments in Article 8 of UNCAC, including applying codes or standards of conduct for public officials, facilitating the reporting by public officials of acts of corruption to appropriate authorities, requiring public officials to make declarations to appropriate authorities regarding potential conflicts of interests, and taking measures providing for disciplinary or other measures against public officials who violate such codes or standards.
ARTICLE 13
Transparency in the Public Administration
1. The Parties stress the importance of transparency in the public administration for the prevention of corruption relating to international trade and investment and shall promote transparency in line with specific and horizontal provisions in Part III of this Agreement, including in particular provisions on trade facilitation, public procurement, domestic regulation and transparency.
2. The Parties reaffirm their commitments pursuant to paragraph 2 of Article 13 of UNCAC to take appropriate measures to ensure that its anti-corruption bodies are known to the public, and to provide access to those bodies, if appropriate, for the reporting of any relevant incidents.
ARTICLE 14
Participation of Civil Society
The Parties recognise the importance of the participation of civil society in the prevention of and the fight against corruption in international trade and investment, as well as the need to raise public awareness regarding the existence, causes and gravity of and the threat posed by corruption. To that end the Parties reaffirm their commitments pursuant to paragraph 1 of Article 13 of UNCAC, in particular on taking appropriate measures to promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organisations and community-based organisations.
ARTICLE 15
Protection of Reporting Persons
The Parties reaffirm their commitment pursuant to paragraph 4 of Article 8 of UNCAC to consider establishing measures and systems to facilitate the reporting by public officials of acts of corruption to appropriate authorities, when such acts come to their notice in the performance of their functions. The Parties also reaffirm their commitment pursuant to Article 33 of UNCAC to consider establishing appropriate measures to provide protection against any unjustified treatment for any reporting persons.
SECTION E
Dispute Resolution
ARTICLE 16
Scope
1. In case of disagreement between the Parties regarding any provision of this Protocol, the Parties shall have recourse exclusively to the procedures referred to in Articles 17 to 21.
2. Paragraph 1 is without prejudice to the rights and obligations of the Parties under the relevant dispute resolution procedures of the international instruments referred to in this Protocol.
3. Each Party retains the right to enforce its respective anti-corruption laws through its law enforcement, prosecutorial and judicial authorities, in accordance with the fundamental principles of its law.
ARTICLE 17
Consultations
1. A Party may request consultations with the other Party with the aim of reaching a mutually agreed solution. Consultations shall be held within the Sub-committee on Anti-Corruption on Trade and Investment.
2. The Party requesting consultations shall deliver a written request to the other Party setting out the reasons for its request, including a description of the matter at issue and the manner in which the measure of the other Party adversely affects trade or investment between the Parties. The Parties shall enter into consultations promptly after the delivery of the request for consultations and in any event no later than 30 days after the date of the receipt of the request. The Parties shall make their utmost effort to reach a mutually agreed solution of the matter via these consultations.
3. Each Party may, if appropriate, seek the advice of the Domestic Advisory Groups referred to in Article 1.7 (Domestic Advisory Groups) of Part IV of this Agreement.
4. Each Party shall endeavour to ensure the participation of personnel of its competent government authorities with responsibility on the matter subject to the consultations.
5. Any mutually agreed solution shall be made publicly available, subject to the protection of confidential information.
ARTICLE 18
Expert Assistance
1. A Party may request in writing to the other Party the assistance of a group of experts if consultations have been concluded and no mutually agreed solution has been reached within 90 days after the request for consultations. In its request for the assistance of a group of experts, the Party shall describe the matter at issue and the manner in which the measure of the other Party adversely affects trade or investment between the Parties.
2. Unless otherwise agreed by the Parties, the group of experts shall be composed of three experts. The Parties shall consult with a view to agreeing on the experts that will be part of the group of experts within 10 days after the date of receipt of the written request referred to in paragraph 1. For that purpose, each Party shall designate an expert, who may be a national of that Party, and propose to the other Party up to three candidates to serve as chairperson. The Parties shall endeavour to agree on the chairperson from among the candidates to serve as chairperson. A Party may object to an expert designated by the other Party, if it considers that the individual does not meet the requirements set out in Article 20. For the purposes of this paragraph, the Parties are encouraged to select the experts from the list referred to in Article 19.
3. If the Parties fail to agree on the group of experts within the time period set out in paragraph 2, the procedure laid down in Article 19 shall apply.
4. The group of experts shall conduct the procedures in accordance with the terms and conditions agreed by the Parties. The Joint Committee may decide on rules of procedure that are to apply to procedures under this Section.
ARTICLE 19
List of Experts
The Sub-Committee on Anti-Corruption on Trade and Investment shall, at its first meeting after the entry into force of this Agreement, establish a list of at least nine individuals who are willing and able to serve as experts. The list shall be composed of three sub-lists: one sub-list for each Party and one sub-list of individuals who are not nationals of either Party to serve as chairperson. Each Party shall propose at least three individuals for its sub-list. The Parties shall also select at least three individuals for the list of chairpersons. The Sub-Committee on Anti-Corruption on Trade and Investment shall ensure that the list is kept up to date and that the number of experts is maintained at no less than nine individuals.
ARTICLE 20
Qualifications of Experts
Experts shall have expertise in law or practice of matters covered under this Protocol or the resolution of disputes arising under international agreements. They shall be independent, serve in their individual capacities and not take instructions from any organisation or government with regard to issues related to the disagreement, or be affiliated with the government of any Party, and shall comply with Annex 31-B (Code of Conduct for Panellists and Mediators).
ARTICLE 21
Experts' Opinion
1. The group of experts shall consult with the Parties, jointly or individually, as appropriate, with a view to assisting them in reaching a mutually agreed solution.
2. In matters relating to the international agreements, FATF Recommendations or G20 High Level Principles referred to in this Protocol, the experts may, as relevant and upon notification to the Parties, seek information or advice from the relevant organisations or bodies.
3. If no mutually agreed solution is reached through consultations with the group of experts within 90 days after the composition of the group of experts, either Party may request the group of experts to issue an opinion with a proposed solution.
4. The group of experts shall issue its opinion within 90 days after the request referred to in paragraph 3, setting out the findings of facts, the applicability of the relevant provisions and the basic rationale behind the proposed solution 3 . Each Party shall promptly make the opinion publicly available after its submission by the group of experts, subject to the protection of confidential information.
5. The Parties shall discuss appropriate measures to be implemented to solve the matters at issue, taking into account the opinion of the group of experts, with a view to reaching a mutually agreed solution. The Party implementing the measures shall inform the other Party of any measures it has implemented or that it envisages implementing, or actions it has undertaken or that it envisages undertaking to solve the matters at issue, no later than three months after the opinion has been issued. The Parties shall, as appropriate, seek advice on the implementation of such measures from the Domestic Advisory Groups.
6. The Sub-Committee on Anti-Corruption on Trade and Investment shall monitor the follow-up to the opinion of the group of experts and the proposed solution contained therein. The Domestic Advisory Groups may submit observations to the Sub-Committee on Anti-Corruption on Trade and Investment in that regard.
ARTICLE 22
Review
1. For the purposes of enhancing the effective implementation of this Protocol, the Parties shall discuss, through the meetings of the Sub-Committee on Anti-Corruption on Trade and Investment, the operation of the dispute resolution and institutional provisions set out in Sections E and F, including a possible review of their effectiveness, taking into account, among others, the experience gained through implementation of this Protocol, policy developments in each Party, developments in international agreements and views presented by stakeholders.
2. The Sub-Committee on Anti-Corruption on Trade and Investment may recommend to the Joint Committee modifications to the relevant provisions of this Protocol reflecting the outcome of the discussions referred to in paragraph 1 which shall be adopted in accordance with the amendment procedure established in Article 2.4 (Amendment) of Part IV of this Agreement.
SECTION F
Institutional Arrangements
ARTICLE 23
Sub-Committee on Anti-Corruption on Trade and Investment
1. The Parties hereby establish a Sub-Committee on Anti-Corruption on Trade and Investment. It shall comprise representatives of each Party, with responsibility in matters relating to the prevention of and fight against corruption, taking into consideration the specific issues to be addressed at any given session.
2. The Sub-Committee on Anti-Corruption on Trade and Investment shall meet within a year of the date of entry into force of this Agreement, unless otherwise agreed by the Parties, and thereafter as mutually agreed by the Parties.
3. The functions of the Sub-Committee on Anti-Corruption on Trade and Investment are to:
(a) facilitate and monitor the effective implementation of this Protocol and to discuss any difficulties which may arise in its implementation;
(b) promote cooperation between the Parties on matters covered by this Protocol, as well as to promote the exchange of information on developments in non-governmental, regional and multilateral fora on matters covered by this Protocol;
(c) identify or discuss initiatives on matters covered by this Protocol that would benefit from greater bilateral cooperation; and
(d) identify or discuss possible improvements to this Protocol.
4. Each Party shall designate a contact point to facilitate communication and coordination between the Parties on matters relating to the implementation of this Protocol and notify the other Party of its contact details. The Parties shall promptly notify each other of any changes to those contact details.
Conclusion
IN WITNESS WHEREOF the undersigned Plenipotentiaries, duly authorised to this effect, have signed this Agreement.
Done at …, this … day of … in the year…,
For the Kingdom of Belgium,
For the Republic of Bulgaria,
For the Czech Republic,
For the Kingdom of Denmark,
For the Federal Republic of Germany,
For the Republic of Estonia,