The chapter presents a conflict of interest as a new pioneering measure for combating corruption and abuse of public power. The study is based on an analysis of the conflict of interest legislations of about 15 European countries. European legislators' legislative decisions on several key criteria relating to conflict of interest have been analyzed. These criteria include the presence or absence of a special law, conflict of interest as a criminal or administrative offense, accountable persons, legal definition, prohibitions, competent authorities and procedures for ascertaining conflict of interest, sanctions, etc. A scientific definition of conflict of interest has also been proposed based on the characteristics of the phenomenon derived from the analysis of the national legislation in force on the European continent. The chapter also outlines the direction in which the phenomenon may develop in national legislations and includes examples of interesting cases of conflict of interest which have arisen in different European countries.
Top1. Introduction
Conflict of interest is a complex social phenomenon which arises both in the public and private sectors. In the former case, conflict of interest constitutes a form of abuse of power and corrupt practice. Conflict of interest undermines the very foundations of modern democratic states as it interferes with the basic principles of state operation such as legal equality, separation of powers and rule of law. The occurrence of conflict of interest in the public service has resulted in its regulation and prohibition in national laws. Various methods have been used at different times and under different political regimes to curb the abuse of public power and corruption.1
According to national legal regulations adopted in Europe, conflict of interest is always seen as an offence. In some countries it is considered a financial crime, but in most cases, it constitutes an administrative offence. Conflict of interest regulations are part of the so-called administrative measures aimed at combating corruption, which also include incompatibility, declaration of assets and interests, inspections to check the accuracy of the declaration of assets of individuals suspected of corrupt practices, restrictions after dismissal from a public position, etc.
There are two key points in conflict of interest regulations in Europe – definition of the general concept and the different types of conflict of interest, and their prohibition and implementation of methods and mechanisms for preventing and curbing conflict of interest, declaration of assets and interests, incompatibility, removal, withdrawal, etc.
In Europe there is a greater variety of processes and procedures for managing conflict of interest than on other continents. These differences can, however, be classified. Groups of identical or similar legislative decisions can be identified for the different elements of the phenomenon.
At national level European conflict of interest regulations are characterized by:
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relatively similar legislative decisions in relation to the main elements of the phenomenon, albeit with quite different details in the respective countries.
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a strong focus on the right of defence of the individual suspected of conflict of interest.
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significantly more fully developed conflict of interest regulations for the public sector compared to the private sector.
National regulations are also influenced by a supranational factor, which is unique for this continent. The legislative decisions relating to conflict of interest contained in the legislation of the European Union, being a community consisting of 27 countries, have an inevitable effect on the regulation of the phenomenon in the legislations of these member states and other countries.
This chapter provides a brief description of the conflict of interest phenomenon. In the broadest sense, conflict of interest is corruption.2 The existing conflict of interest regulations mainly aim at preventing private interests from influencing the objective and impartial performance of the official duties of civil servants. Only legislative decisions aimed at managing conflict of interest in the public sector are going to be discussed. Moreover, this chapter also examines and draws conclusions on different aspects of the conflict of interest regulations in European countries – special legislation, the concept and legal definitions of conflict of interest, scientific definition, groups of accountable persons, declarations of assets and interests, restrictions whose violations result in conflict of interest, sanctions, competent authority, incompatibility, etc.
Top2. Regulatory Framework For Special Legislation
Conflict of interest is regulated in two main ways – through provisions under the general law or through special laws, where the former approach prevails. The general laws that contain provisions on conflict of interest are most often public service regulations (e.g. in France, the Netherlands, Hungary, Russia, etc.) or the Criminal code (e.g. in Germany, Austria). The countries that have special conflict of interest laws tend to be in Eastern Europe.3 These countries include the Czech Republic, Slovakia, Latvia, Croatia, Bulgaria, Serbia, Montenegro, the Republic of North Macedonia, etc. The presence of special legislation in these countries is related to the requirements for their accession to the EU and their status as current candidates.