Flexibility vs consistency: The challenge of transposing the EU Directive to combat corruption

On 11 May 2026, the EU finally published Directive (EU) 2026/1021 ‘on combatting corruption’ – three years after it was initially presented by the Commission.

The Directive targets both the private and public sectors and replaces or amends several existing legal instruments. It has two key parts:

1. It seeks to harmonise the definitions related to corruption across member states and to establish comparable baselines for penalties and punishments.
2. It creates and/or reinforces the prevention, reporting, and investigation schemes within the EU’s jurisdiction.

For those not familiar with EU legal instruments, an EU Regulation is a binding legislative act which must be applied in its entirety across the EU. An EU Directive, however, sets out a goal that member states must achieve, but leaves it up to each country to create its own legislative path to that goal (ie, to ‘transpose’ the Directive). This is why the Preamble of the Directive is filled with expressions such as ‘while this Directive fully respects all relevant provisions of national constitutions, constitutional principles and laws’, or ‘without prejudice to their institutional and administrative autonomy, Member States should… ’.

This flexibility in interpretation at national and sub-national level allows member states to meet the Directive’s requirements in ways that fit their own context. However, it also risks undermining the Directive’s main purpose of harmonisation, through fragmentation and inconsistency.

To prevent this fragmentation, member states should pay particular attention to a few key elements of the Directive when transposing it to their own countries.349ce80f7d08

Expanding the definition of ‘public official’

Since 2024, the EU Parliament has suggested broadening the definition of ‘public official’ in EU legislation to encompass ‘any person entrusted with tasks of public interest or in charge of a public service’. This includes EU officials such as Commissioners and Members of the European Parliament.

The anti-corruption Directive embraces this by including definitions not only for regular public employees and national officials (‘officials’) but also for those exercising higher responsibilities (‘high-level officials’). This is an important distinction: it is useful for risk-assessment purposes; and also because the Directive makes it clear that exercising higher responsibilities will be considered an aggravating circumstance in corruption offences.

If we are to achieve any consistency across member states around the Directive’s definitions and roles, it will be important to clarify:

• How legal frameworks will define ‘key executive, administrative, legislative or judicial functions’ (the broad responsibilities of ‘high-level officials’, as given in the Directive)
• Whether all heads of government and heads of state are included in the definition of ‘high-level officials’, or subject to a special regime
• Whether special advisors, chiefs of staff, and other appointed officials are included (see GRECO’s 5th Evaluation Round)
• How non-executive branches of power will be regulated. In Spain, for example, the legislative and judicial functions are independent, with considerable autonomy. This extends to parliamentary immunity and self-governing judicial systems with their own disciplinary rules.
• Whether the positions of high-level officials are permanent or time-bound, and whether these roles are subject to any restrictions.

Spain has already sought to address some of these issues, with ‘high-level officials’ clearly defined in Spanish law. Precise ranks and positions in the Central Administration and public bodies are specified, and special, stricter conditions are set out for officials working in independent oversight and control institutions such as the competition agency.

However, where high-level officials are appointed, or on short-term contracts, the same restrictions do not apply, leading to recognised problems around conflicts of interest. These problems have been directly addressed in the Draft Law for Open Administration (pending final approval from Parliament).

Spain’s mode of implementing clear definitions – in a way that accounts for national idiosyncrasies – could be a blueprint for ensuring that all high-level officials in every member state are subject to similar laws, as intended by the Directive.

Article 21: The central role of integrity authorities

Article 21 of the Directive requires that ‘one or several bodies or organisational units tasked with the prevention of corruption are in place and possess the necessary expertise to fight against corruption.’ Although member states have considerable freedom in how they transpose this article, it actually becomes very specific when detailing some of the responsibilities, eg conflict-of-interest management.

Some member states have already created ‘integrity authorities’ of some kind, though their specific remits and competencies vary widely. Spain, for example, is in the process of creating an independent public integrity authority, which will integrate the Office for Conflicts of Interest, the Informants’ Protection Authority, and the National Anti-Fraud Coordination Service. Effective implementation of Article 21 across the EU will require a thorough analysis of what is already in place, to ensure its detailed requirements are met and to ensure high levels of standardisation and cross-border collaboration.

Member states will be at different stages of this journey, so standards must be established to support coherent compliance with the Directive.

Added complexity in decentralised states

It is critically important to note that decentralisation affects how every aspect of the Directive will be transposed – and that the Directive’s definitions will pose an extra challenge for decentralised states.

Special consideration should be given to cases, like Spain, in which regional anti-corruption authorities have already been established, in some cases with a long, robust trajectory. Effective implementation will need to achieve the appropriate balance between respecting regional jurisdictions while attaining the Directives’ goals. Spain has a National Anti-Fraud Coordination Service, integrated in the Comptroller General’s Office in the Central Administration, complemented by a national network of regional anti-corruption authorities, all of which will have important roles to play in achieving this objective.

International and intra-European cooperation

Even when taking into consideration all the potential challenges, we should acknowledge that the Directive is the result of several years of hard work by EU officials. It not only constitutes a true milestone for EU countries in their fight against modern corruption, but will also directly affect corruption’s transnational dimension.

As a party to the UN Convention against Corruption (UNCAC), the EU benefits from international cooperation. Organisations such as the International Association of Anti-Corruption Authorities (IAACA) and European Network for Public Ethics (ENPE) provide forums for national administrations to work together. Through such cooperation, they can address shared challenges, strengthen societal stability and security, and – as the Directive rightly states – limit corruption’s erosion of democratic institutions and universal values.