REU, Alm.del - 2020-21 - Bilag 337: Opfølgningsrapport af 25. marts 2021 fra Europarådets antikorruptionsorgan GRECO (Group of States Against Corrup-tion) om Danmarks strafferetlige regulering vedrørende bestikkelse og om gennemsigtighed inden for området partistøtte og aflæggelse af partiregnskaber, fra justitsministeren

Retsudvalget 2020-21
REU Alm.del Bilag 337
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Adoption : 25 March 2021

Confidential

GrecoRC3(2021)2

Third Evaluation Round

Addendum to the Second Compliance Report

on Denmark

”Incriminations (ETS 173 and 191, GPC

2)”

***

”Transparency of Party Funding”

Adopted by GRECO

at its 87

Plenary Meeting

(Strasbourg, 22-25 March 2021)

GRECO Secretariat

Council of Europe

www.coe.int/greco

F-67075 Strasbourg Cedex



+33 3 88 41 20 00

Fax +33 3 88 41 39 55

Directorate General I

Human Rights and Rule of Law

Information Society and Action against

Crime Directorate

REU, Alm.del - 2020-21 - Bilag 337: Opfølgningsrapport af 25. marts 2021 fra Europarådets antikorruptionsorgan GRECO (Group of States Against Corrup-tion) om Danmarks strafferetlige regulering vedrørende bestikkelse og om gennemsigtighed inden for området partistøtte og aflæggelse af partiregnskaber, fra justitsministeren

I. INTRODUCTION

The Addendum to the Second Compliance Report assesses further measures taken by the

authorities of Denmark, since the adoption of the Second Compliance Report and subsequent

interim reports, to implement the recommendations issued by GRECO in its Third Round Evaluation

Report on Denmark. It is recalled that the Third Evaluation Round covers two distinct themes,

namely:

Theme I

–

Incriminations:

Articles 1a and 1b, 2-12, 15-17, 19 paragraph 1 of the Criminal

Law Convention on Corruption ETS 173), Articles 1-6 of its Additional Protocol (ETS 191) and

Guiding Principle 2 (criminalisation of corruption).

Theme II

–

Transparency of party funding:

Articles 8, 11, 12, 13b, 14 and 16 of

Recommendation Rec(2003)4 on Common Rules against Corruption in the Funding of Political

Parties and Electoral Campaigns, and - more generally - Guiding Principle 15 (financing of

political parties and election campaigns).

The Third Round Evaluation Report on Denmark was adopted

at GRECO’s 43

Plenary Meeting

(2 July 2009) (Greco Eval III Rep (2008) 9E

Theme I

Theme II).

As required by GRECO's Rules of Procedure, the Danish authorities submitted situation reports on

the measures taken to implement the recommendations prior to the adoption of each of the

compliance reports referred to below. GRECO selected Albania and the Netherlands to appoint

Rapporteurs for the compliance procedure.

In the

Compliance Report

which was adopted by GRECO at its 51

Plenary Meeting (27 May 2011),

it was concluded that out of the five recommendations under Theme I - Incriminations, three had

been implemented satisfactorily or dealt with in a satisfactory manner, one had been partly

implemented and one had not been implemented. In respect of Theme II - Transparency of Party

Funding, none of the nine recommendations had been implemented. The overall level of

compliance was considered “globally unsatisfactory”

in the meaning of Rule 31, paragraph 8.3 of

the Rules of Procedure. GRECO therefore decided to apply Rule 32 concerning members found

not to be in compliance with the recommendations contained in the Evaluation Report.

In the first

Interim Compliance Report

which was adopted by GRECO at its 55

Plenary Meeting

(16 May 2012), the level of compliance was unchanged and was again assessed as “globally

unsatisfactory” since there had been no improvement. Therefore, in

accordance with Rule 32,

paragraph 2 subparagraph (ii), GRECO instructed its President to transmit a letter to the Head of

Delegation of Denmark

, drawing attention to the non-compliance with the relevant

recommendations and the need to take determined steps with a view to achieving decisive

progress.

In the

Second Interim Compliance Report

adopted at the 61

Plenary Meeting (18 October 2013)

GRECO noted a slight increase in

Denmark’s level of compliance (four

of five Theme I

recommendations had been implemented but none of the Theme II recommendations had been

complied with). The level was again assessed as

“globally unsatisfactory”. In accordance with Rule

32, paragraph 2 subparagraph (ii) c), on 27 November 2013, the Secretary General of the Council

The letter was sent on 15 June 2012.

of Europe, invited by GRECO, sent a letter to the Minister of Foreign Affairs of Denmark drawing

attention to the non-compliance of Denmark with pending recommendations.

In the

Third Interim Compliance Report

which was adopted by GRECO at its 65

Plenary Meeting

(10 October 2014), GRECO maintained its assessment that the level of compliance with the

recommendations was “globally unsatisfactory”

and the authorities were again requested to report

back.

In the

Fourth Interim Compliance Report

adopted by GRECO at its 69

Plenary Meeting

(16 October 2015) it was again concluded that no concrete progress had been achieved and that

the level of compliance remained “globally unsatisfactory”. Furthermore, GRECO requested

that

the authorities of Denmark receive a high-level mission in order to discuss - on the spot with the

stakeholders concerned - ways to expedite pending legislative and policy changes concerning

political financing.

On 25 May 2016, the High-level meeting was held at the Ministry of Justice in Copenhagen, at

which the GRECO delegation (headed by the President of GRECO) met with the Minister of Justice,

Mr Søren PIND, other representatives of the Ministry of Justice and the Ministry of Social Affairs

and the Interior, and the Head of the Danish Delegation to GRECO. In a separate meeting, the

GRECO delegation met with representatives of all political parties in the Danish Parliament

(Folketinget). The Minister of Justice made a commitment to actions to be taken aimed at improving

the level of compliance with GRECO’s recommendations (concerning political financing). It was

also stated that discussions between all political parties represented in the Folketinget were about

to start.

In the

Fifth Interim Compliance Report

adopted by GRECO at its 74

Plenary meeting (2 December

2016), GRECO again concluded that no tangible results had been achieved in respect of the

pending recommendations.

In the

Sixth Interim Compliance Report

which was adopted by GRECO at its 79

Plenary Meeting

(23 March 2018), some progress was noted in respect of Theme II - two recommendations had

been implemented satisfactorily and three had been partly implemented. Four Theme I

recommendations had been implemented previously. As a consequence, GRECO concluded that

further efforts were required but the overall

level of compliance was no longer “globally

unsatisfactory”.

The Danish authorities were requested to report on further actions taken to

implemented pending recommendations, within the framework of the ordinary compliance

procedure for the Second Compliance Report..

The second Compliance Report

was adopted by GRECO at its 83

Plenary Meeting (21 June

2019).GRECO concluded that although some limited progress was noted, this had no impact on

the number of fully implemented recommendations. As before, in total only six recommendations

had been implemented satisfactorily or dealt with in a satisfactory manner, four had been partly

implemented and four remained not implemented.

On 8 December 2020, the GRECO Secretariat received further information from the Danish

authorities on the implementation of the pending recommendations, which served as a basis for

the present Report. The rapporteurs, Mr Nino STRATI (Albania) and Ms Marja VAN DER WERF

(Netherlands),

were assisted by GRECO’s Secretariat in drawing up

the Addendum to the Second

Compliance Report, which evaluates further steps taken by the authorities to comply with the

10.

11.

12.

13.

pending recommendations (i.e. recommendation i under Theme I and recommendations i-iii and

vi-ix under Theme II) since the adoption of the Second Compliance Report.

II.

ANALYSIS

Theme I: Incriminations

14.

It is recalled that under Theme I, only recommendation i was pending as not having been

implemented.

Recommendation i.

15.

GRECO recommended to put beyond doubt that all forms of “undue advantages” are covered by

the relevant bribery offences concerning foreign public officials and officials of international

organisations/assemblies/courts.

It is recalled that this recommendation was not implemented in the previous compliance reports.

To summarise, GRECO took

note of the authorities’ interpretation of Section 122 of the Criminal

Code (CC), which remained the same as analysed and criticised in the Evaluation Report. As for

the Guidelines issued by the Director for Public Prosecution (DPP), GRECO found that they fell

short of the requirements of the recommendation and, moreover, that the Ministry of Justice’s

booklet on “How to avoid corruption”, which had been updated in 2015 to

in line with the DPP’s

Guidelines, represented a step backwards. The revised text of the booklet indicated that small

facilitation payments were generally to be discouraged, and when made in connection with

international business transactions in order to induce a public official to act in contravention of

his/her duties (but only in this situation) would always be undue and thus constituted a criminal

offence. Moreover, the situation concerning the different forms of bribery of officials of foreign

assemblies and courts had not been clarified. The authorities also reported on some efforts to

improve interagency and international cooperation, in particular through the interagency “Anti-

Corruption Forum” and the SØIK unit investigating and prosecuting bribery of foreign public

officials. Despite this information, GRECO could not conclude that

all forms of “undue advantages”

had been covered by the relevant bribery offences concerning foreign public officials.

The Danish authorities maintain their position from the time of the adoption of the Evaluation Report

in 2009 and throughout the compliance procedure. They consider that Danish law criminalises

bribery, including in respect of facilitation payments, to the extent required by the Criminal Law

Convention. Therefore, Denmark has not, since the adoption of the Evaluation Report, made any

legislative changes in this respect. The Danish authorities recall their position which was explained

inter alia

in the letter of the Danish Ministry of Justice to GRECO of 6 October 2015. In this letter,

the authorities admit that small facilitation payments may in exceptional circumstances fall outside

the scope of Section 122 of the Danish Criminal Code. However, their position is that in those cases

small facilitation payments do not constitute

an “undue advantage” within the meaning of the

Criminal Law Convention on Corruption.

GRECO, while maintaining its position, notes again the absence of any progress and concludes

that recommendation i remains not implemented.

16.

17.

18.

Theme II: Transparency of Party Funding

19.

It is recalled that, in the Evaluation Report, GRECO addressed nine recommendations to Denmark

in respect of Theme II. The Second Compliance Report concluded that recommendations iv and v

had been dealt with in a satisfactory manner, recommendations i, iii, vi and vii had been partly

implemented and recommendations ii, viii and ix had not been implemented.

Recommendation i.

20.

GRECO recommended to introduce a ban on donations from donors whose identity is not known

to the political party/election candidate.

It is recalled that this recommendation was partly implemented in previous compliance reports.

GRECO had welcomed new legislation which introduced a ban on donations to political parties and

lists of candidates from donors whose identity is not known. However, this ban did not apply in

respect of donations to individual candidates, as required by the recommendation. GRECO was

also concerned by the high threshold (approx. EUR 2 750 in 2018) below which anonymous

donations were acceptable.

The authorities indicate, as they did in the Second Compliance Report, that, currently, they do not

plan to ban anonymous donations to individual candidates, nor to change the existing threshold.

The amended rules, banning anonymous donations to political parties, entered into force on 1 July

2017, and they would need an overview of the extent to which anonymous donations are being

used in respect of individual candidates before considering any further regulation in this area,

including as regards the threshold. The authorities also explain that in practice it is more

advantageous for parties (than for individuals) to receive donations, notably because they are tax

free, which is not the case for donations to individual candidates.

GRECO takes note of the information provided. There are no new developments in respect of this

recommendation. A ban on donations from unknown donors to political parties and lists of

candidates is in place, but such donations to individual candidates is not banned at this moment.

The rather high threshold for anonymous donations also remains a concern.

GRECO concludes that recommendation i remains partly implemented.

Recommendation ii.

25.

GRECO recommended that the accounting/reporting obligation in respect of donations exceeding

the threshold stipulated in the Accounts of Political Parties Act, be complemented with an obligation

upon political parties to report the total value of donations provided by each donator, in addition to

the identity of the donors.

It is recalled that this recommendation was not implemented in the previous compliance reports.

The authorities of Denmark reiterate that there are no plans to implement this recommendation.

GRECO concludes that recommendation ii remains not implemented.

21.

22.

23.

24.

26.

27.

28.

Recommendation iii.

29.

GRECO recommended to provide further guidance on the reporting and valuation of in-kind

contributions to political parties.

It is recalled that this recommendation was partly implemented in the Second Compliance report.

A political agreement between the Government coalition and the opposition aimed at enhancing

transparency of party funding provided for the development of guidelines clarifying the existing

regulations in respect of various forms of contributions, including in-kind contributions. Draft

guidelines, which were subject to public consultations at the time, had been submitted to GRECO.

The authorities now report that the Ministry of Social Affairs and the Interior has established a guide

(“Vejledning, nr. 9338” of 9 June 2020,

79 pages) that contains guidance for the understanding of

when various forms of contributions to political parties are subject to the existing regulation.

GRECO welcomes the establishment of guidelines concerning political party financing (“Vejledning

om visse spørgsmål vedrørende partistøtte”,

nr 9338) dated 9 June 2020. The Guidelines

complement the Accounts of Political Parties Act, and, as such, provides detailed clarifications on

a large number of issues regulated in law, including what constitutes in-kind donations, their value

and when they are to be taken into account. GRECO has seen the text and is satisfied that the

issue on in-kind contributions have now been subject to further guidance as required by the

recommendation.

GRECO concludes that recommendation iii has been implemented satisfactorily.

Recommendation vi.

34.

GRECO recommended to ensure through appropriate regulations that, to the extent feasible,

donations to lists of candidates and individual candidates above a certain threshold (including the

identity of the donor and the total of donations by the same donor) are to be disclosed.

It is recalled that this recommendation was partly implemented in the Sixth Interim Compliance

Report and remained so in the Second Compliance Report. GRECO welcomed that private funding

to lists of candidates as well as to individual candidates had become more transparent and in line

with what applies to political parties. However, GRECO regretted that only the identities of the

donors were to be revealed, not the value of the donations to the lists of candidates and individual

candidates (similar criticism of the situation with respect to political parties was also expressed, see

recommendation ii).

The authorities maintain their position that, currently, there are no plans to go any further in respect

of this recommendation, i.e. to introduce an obligation to report the actual value of received

donations.

GRECO takes note of the information provided and concludes that recommendation vi remains

partly implemented.

Recommendation vii.

38.

GRECO recommended to ensure independent and consistent auditing in respect of all political

parties registered for national elections, elections to the European Parliament and as appropriate

30.

31.

32.

33.

35.

36.

37.

those involved at regional and local level; and to establish clear rules / guidelines ensuring the

necessary independence of auditors who are to audit the accounts of political parties.

39.

It is recalled that this recommendation was partly implemented in the Sixth Interim Compliance

Report. GRECO welcomed the new legislation (Section 4(3) APPA) which made the accounts of

political parties participating in national or European elections subject to audit by an independent

officially approved auditor as a general rule. However, it noted that no rules/guidelines had been

established to ensure the necessary independence of auditors from the political party (for example,

in relation to party membership and how many times (years) the same auditor could audit the same

political party, etc.), as a complement to the rules in the Approved Auditors and Audit Firms Act.

The situation remained the same in the Second Compliance Report.

The authorities now report that, in the Guidelines (“Vejledning

om visse spørgsmål vedrørende

partistøtte”,

nr 9338) dated 9 June 2020, Section 9.3.1., it is stated that the accounts of political

parties are to be audited by an auditor who is not a member of the party concerned. The same

applies to all members of an audit team. Moreover, Section 9.3.2. of the guidelines stipulate that

the same auditor may not be used for more than 7 years consecutively and cannot audit the

accounts of the same again earlier than 3 years later.

GRECO takes note of the new information provided. It reiterates that the first part of this

recommendation was complied with at an earlier stage of the compliance procedure through the

amended legislation (Section 4(3) APPA), which establishes that the accounts of political parties

participating in national or European elections are subject to audit by an independent officially

approved auditor as a general rule. With the more recent establishment of the Guidelines of 9 June

2020, it is now stipulated that auditors shall not be members of the party they are to audit, and that

the same auditor may not audit the same party for more than 7 seven years consecutively. These

measures taken together correspond to the requirements of this recommendation.

GRECO concludes that recommendation vii has been implemented satisfactorily.

Recommendation viii.

43.

GRECO recommended to ensure independent and substantial monitoring in respect of the funding

of political parties and electoral campaigns, in line with Article 14 of Recommendation Rec(2003)4

on Common Rules against Corruption in the Funding of Political Parties and Electoral Campaigns.

It is recalled that this recommendation was not implemented in the Second Compliance Report.

The authorities referred to the obligation for political parties to have their accounts monitored by an

independent auditor, as required in recommendation vii. GRECO considered this an insufficient

response to the concerns of the current recommendation.

The authorities of Denmark maintain their intention not to implement this recommendation, while

also referring to the Guidelines of 9 June 2020, which promotes

auditors’ independence.

GRECO reiterates that the current recommendation is aimed at changing a prevailing

unsatisfactory situation in Denmark, where Parliament plays a passive role and the State Audit

body which is responsible to Parliament has never checked party accounts, and where the Ministry

for Economic Affairs and the Interior (which is not independent as such) only checks the accounts

with respect to state funding matters. No progress has been reported.

40.

41.

42.

44.

45.

46.

47.

GRECO concludes that recommendation viii remains not implemented.

Recommendation ix.

48.

GRECO recommended that yet-to-be-established rules on financing of political parties and

electoral campaigns be accompanied by flexible sanctions, for example of an administrative nature,

which are effective, proportionate and dissuasive.

It is recalled that this recommendation was not implemented in the Second Compliance Report as

the legal situation remained unchanged since the adoption of the Evaluation Report.

The authorities of Denmark maintain their position - while explaining that the matter has been re-

considered by the Committee on Transparency of Party Funding - that, currently, they do not plan

to implement this recommendation.

GRECO notes that this recommendation is closely related to recommendation viii. It regrets the

absence of any progress and concludes that recommendation ix remains not implemented.

49.

50.

51.

III.

52.

CONCLUSIONS

GRECO concludes that Denmark has made some further progress in the implementation of

the recommendations contained in the Third Round Evaluation report. Eight of the fourteen

recommendations have now

been implemented satisfactorily or dealt with in a satisfactory

manner, two recommendations remain partly implemented and four remain not implemented.

With respect to Theme I

–

Incriminations, recommendations ii-v have been implemented

satisfactorily or dealt with in a satisfactory manner; only recommendation i has not been

implemented. Concerning Theme II

–

Transparency of Party Funding, recommendations iii and vii

have been implemented satisfactorily, recommendations iv and v have been dealt with in a

satisfactory manner, recommendations i and vi have been partly implemented and

recommendations ii, viii and ix remain not implemented.

As for incriminations, GRECO reiterate is concern that it has not been made clear beyond any

doubt that

all forms of “undue advantages” are covered by the relevant bribery offences concerning

foreign and international public officials.

With regard to transparency of party funding, GRECO notes some further progress in that new

Guidelines have been established in respect of political party financing, which clarify, among others,

the issue of how so called in-kind donations are to be accounted for. Moreover, it is noticeable that

the same Guidelines also have an impact on auditors independence vis-à-vis the party they are to

audit, namely that they cannot be members of that party, nor can they continue auditing the same

party for longer periods than seven consecutive years. While this is good progress, GRECO

remains concerned by the lack of progress in response to a number of other recommendations

aimed at enhancing the overall transparency of political financing in Denmark, in particular to

introduce a ban on anonymous donations to individual election candidates, to require more

transparency as to the value of certain donations and to improve the supervision of political

financing (which goes beyond the pure auditing of their accounts). GRECO urges the Danish

authorities to further pursue the implementation of the pending recommendations.

53.

54.

55.

56.

Pursuant to Rule 31 revised, paragraph 9 of its Rules of Procedure

–

GRECO asks the Head of

Delegation of Denmark to submit additional information, regarding the implementation of

recommendation i (Theme I) and of recommendations i, ii, vi, viii and ix (Theme II), by 31 March

2022 at the latest.

Finally, GRECO invites the authorities of Denmark to authorise, as soon as possible, the publication

of the report, to translate it into the national language and to make this translation public.

57.