REU, Alm.del - 2021-22 - Bilag 384: Tillæg til opfølgningsrapport af 17. juni 2022 fra Europarådets antikorruptionsorgan GRECO (Group of States Against Corruption)

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Adoption: 17 June 2022

Confidential

GrecoRC3(2022)2

Third Evaluation Round

Second Addendum to the Second Compliance Report

on Denmark

”Incriminations (ETS 173 and 191, GPC 2)”

***

”Transparency of Party Funding”

Adopted by GRECO

at its 91

Plenary Meeting

(Strasbourg, 13-17 June 2022)

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 - 2021-22 - Bilag 384: Tillæg til opfølgningsrapport af 17. juni 2022 fra Europarådets antikorruptionsorgan GRECO (Group of States Against Corruption)

I. INTRODUCTION

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

the authorities of Denmark since the adoption of the Addendum to the Second Compliance Report,

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

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.

The letter was sent on 15 June 2012.

REU, Alm.del - 2021-22 - Bilag 384: Tillæg til opfølgningsrapport af 17. juni 2022 fra Europarådets antikorruptionsorgan GRECO (Group of States Against Corruption)

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.

In the

Addendum to the Second Compliance Report,

adopted by GRECO at its 87

Plenary Meeting

(25 March 2021) and published on 26 May 2021, GRECO concluded that Denmark had made some

further progress in the implementation of the recommendations. Eight of the fourteen

recommendations had been implemented satisfactorily or dealt with in a satisfactory manner, two

recommendations remained partly implemented and four remained not implemented.

On 23 March 2022, the GRECO Secretariat received further information from the Danish authorities

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

present Report. The rapporteurs, Ms Adea PIRDENI (Albania) and Ms Tessa LANSBERGEN

10.

11.

12.

13.

14.

REU, Alm.del - 2021-22 - Bilag 384: Tillæg til opfølgningsrapport af 17. juni 2022 fra Europarådets antikorruptionsorgan GRECO (Group of States Against Corruption)

(Netherlands), were assisted by GRECO’s Secretariat in drawing up this Second Addendum to the

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

the pending recommendations (i.e. recommendation i under Theme I and recommendations i, ii, vi,

viii and ix under Theme II) since the adoption of the Addendum to the Second Compliance Report.

II.

ANALYSIS

Theme I: Incriminations

15.

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

implemented.

Recommendation i.

16.

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 be 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 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 maintains its position and, in the absence of any progress, concludes that

recommendation i remains not implemented.

17.

18.

19.

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Theme II: Transparency of Party Funding

20.

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

in respect of Theme II. The Addendum to the Second Compliance Report concluded that

recommendations iii and vii had been implemented satisfactorily, recommendations iv and v had

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

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

Recommendation i.

21.

22.

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 Addendum to the Second Compliance Report, that 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 reiterate 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, which had already been noted in the previous

compliance reports. 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 donations

to individual candidates remain not banned. The rather high threshold for anonymous donations

also remains a concern.

GRECO concludes that recommendation i remains partly implemented.

Recommendation ii.

26.

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 reiterate that there are no plans to implement this recommendation.

GRECO concludes that recommendation ii remains not implemented.

23.

24.

25.

27.

28.

29.

REU, Alm.del - 2021-22 - Bilag 384: Tillæg til opfølgningsrapport af 17. juni 2022 fra Europarådets antikorruptionsorgan GRECO (Group of States Against Corruption)

Recommendation vi.

30.

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 Addendum to 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 reiterate 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.

As no new measures have been taken, GRECO concludes that recommendation vi remains partly

implemented.

Recommendation viii.

34.

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 Addendum to the Second

Compliance Report. The authorities referred to the obligation for political parties to have their

accounts monitored by an independent auditor and referred to the Guidelines of 9 June 2020, which

promote auditors’ independence. GRECO considered this an insufficient response to the concerns

of the current recommendation which 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.

The authorities do not consider the current monitoring to be insufficient and reiterate that they have

no plans to implement this recommendation.

In the absence of any progress, GRECO concludes that recommendation viii remains not

implemented.

Recommendation ix.

38.

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 Addendum to the Second

Compliance Report as the legal situation remained unchanged since the adoption of the Evaluation

31.

32.

33.

35.

36.

37.

39.

REU, Alm.del - 2021-22 - Bilag 384: Tillæg til opfølgningsrapport af 17. juni 2022 fra Europarådets antikorruptionsorgan GRECO (Group of States Against Corruption)

Report. The authorities explained that the matter had been re-considered by the Committee on

Transparency of Party Funding, which found the current penal provisions to be appropriate. On this

basis, no further measures had been taken.

40.

The authorities maintain their position – while reiterating 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 again that this recommendation is closely related to recommendation viii. It regrets

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

CONCLUSIONS

In view of the above and previous reports, GRECO concludes that Denmark has

implemented satisfactorily or dealt with in a satisfactory manner in total eight of the fourteen

recommendations contained in the Third Round Evaluation Report.

Of the remaining

recommendations, two 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 remains not

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 remain partly implemented and recommendations

ii, viii and ix remain not implemented.

As for incriminations, GRECO reiterates its 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. Having said that all, other recommendations have been

complied with.

With regard to transparency of party funding, GRECO already welcomed some progress in the

Addendum to the Second Compliance Report with regard to the new Guidelines established in

respect of political party financing, which clarified, among other things, the issue of how so-called

in-kind donations are to be accounted for. However, 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 takes note that the Danish government is planning political negotiations

on political party financing in 2022 and that it expects the negotiations to result in legislation

concerning transparency requirements. In the context of such negotiations, GRECO urges the

Danish authorities to further pursue the implementation of the outstanding recommendations.

The adoption of this Second Addendum to the Second Compliance Report terminates the Third

Round compliance procedure in respect of Denmark. However, in view of the recommendations

still outstanding, the Danish authorities are invited to keep GRECO informed of future progress on

their implementation.

41.

III.

42.

43.

44.

45.

46.

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47.

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.