Incopatibility of Office

The Commission for the Prevention of Corruption (the Commission) may assess and establish the incompatibility of office only for officials not subject to provisions regarding the incompatibility of office contained in any other law, and for officials subject to a law referring to the use of the provisions of another law, one of which is the Integrity and Prevention of Corruption Act (IPCA).

Professional Officials

The incompatibility of office and activities for professional officials is governed by Article 26 as “incompatibility of office and exceptions” and in Paragraph 1 of Article 27 as “prohibition of membership and activities”.

The IPCA prohibits professional officials from performing a professional or other activity aimed at generating income or proceeds. It also stipulates exceptions to the said prohibition by legally sanctioning the permission to engage in pedagogical, scientific, research, artistic, cultural, sports and publishing activities, manage a farm, and manage one’s own assets. An official may engage in these activities (with the exception of sports and publishing activities, managing a farm, and managing their own assets) upon obtaining the permission from their employer in accordance with the applicable law. It is also the duty of the official to notify the Commission in writing within eight working days of the commencement of the activity and enclose the employer’s permission and the contract as concluded for the performance of the activity of profession.

Within 15 days of the receiving of the notification, the Commission may initiate the procedure for assessing the incompatibility of office with a specific activity. In case of the probability that the scope and nature of the activity in question in regard to the office held by the professional official could represent a disproportionate risk to the objective and impartial performance of the said office or jeopardise its integrity, the Commission may prohibit the performance of the additional activity.

In exceptional cases, the Commission may issue a permission to a professional official to engage in an otherwise prohibited gainful activity upon the official’s request. In deciding, the Commission takes into account the public interest and the degree of risk the performance of the activity would pose to the objective and impartial discharge of the duties of the office or jeopardise its integrity. The Commission may and must not issue such a permission if precluded by another law or if the professional official seeks to obtain income from the body in which they hold the office.

The IPCA further stipulates that a professional official may not hold membership or engage in activities of management, supervision, or representation of companies, economic interest groupings, co-operatives, public institutes, funds, agencies, or other entities governed by public or private law, except in societies, foundations, and political parties.

Non-professional Officials

While an absolute prohibition of membership and activities in cases outlined above is in effect for professional officials, in the case of non-professional officials, the prohibition is in effect only for the entities (companies, institutes, co-operatives, etc.) in which the non-professional official exercises direct supervision as a duty of their office.

Non-professional Mayors and Deputy Mayors

Non-professional mayors and deputy mayors are subject to an essentially identical prohibition as professional officials, namely that non-professional mayors and deputy mayors may not hold membership or engage in activities of management, supervision, or representation of public institutes, funds, agencies, and other entities governed by public or private law inasmuch the entity governed by private law is vested with public authority or is a public-service provider. This limitation or rather prohibition is imposed from 23rd April 2011, date of entry of IPCA-A into force, but only in cases when a non-professional mayor or deputy mayor discharges the duties of their office in a municipality related to said entities in terms of founding, ownership, supervision, or finance.

Minor offences

An individual shall be fined from €400 to €1,200 for the minor offence of failing to inform the Commission that they are carrying out a professional or other activity in contravention of the provision of paragraph two of Article 26 of the IPCA.

An individual shall be fined from €400 to €1,200 for the minor offence of failing to comply with the Commission’s decision on the prohibition of the performance of an additional activity or with the conditions or restrictions imposed on them by the Commission’s decision in contravention of the provision of Paragraph 3 of Article 26 of the IPCA.

An individual shall be fined from €1,000 to €2,000 for the minor offence of failing to cease to perform a professional or other activity in contravention of the provision of Paragraph 5 of Article 26 of the IPCA after the decision made on revocation of permission has become final.

Article 26

(Incompatibility of office and exceptions)

(1) A professional holder of public office may not be engaged in any professional or other activity aimed at generating income or proceeds while holding a public office.

(2) Notwithstanding the provision of the preceding paragraph, professional holders of public office may engage in pedagogical, scientific, research, artistic, cultural, sports and publishing activities, manage a farm, and manage their own assets, unless otherwise stipulated by another act. A holder of public office who obtains permission from their employer or enters into a contract to engage in one of the aforementioned activities, except in the cases of sports and publishing activities and of managing a farm or one’s own assets, shall notify the Commission of this in writing within eight working days of the commencement of the activity and enclose with the notification the employer’s permission and the contract under which they may perform the activity or profession.

(3) The Commission may, within 15 working days of receipt of the notification referred to in the preceding paragraph, initiate a procedure for assessing the incompatibility of office if it considers that the performance of the activity, given the actual scope and nature of the activity in question and the office held by the professional holder of public office, is likely to present a disproportionate risk to the objective and impartial discharge of the duties of the office or jeopardise its integrity. In this case, the Commission may issue a decision prohibiting the holder of public office from performing an additional activity or imposing conditions or restrictions on the official that must be complied with when performing the activity.

(4) Unless otherwise stipulated by another Act, the Commission may allow a professional holder of public office to perform a professional or other activity aimed at generating income, taking into account the public interest and the level of risk the performance of the activity poses to the objective and impartial discharge of the duties of the office or to its integrity. If a professional holder of public office wishes to obtain income from the body in which they hold office, the Commission shall not issue a permission. If the Commission issues a permission, it may impose conditions and limitations on the holder of public office that must be complied with when performing another activity.

(5) If the Commission finds that the holder of public office has not complied with the conditions and restrictions imposed by the decision referred to in paragraph three or the permission referred to in the preceding paragraph, or that the holder of public office performs a professional or other activity in a manner that interferes with the objective and impartial discharge of the duties of their office, it shall issue a decision revoking the permission. The holder of public office shall immediately, or no later than after the decision on revocation of the permission has become final, cease to perform the professional or other activity in question.

(6) In an administrative dispute against the Commission’s decision on the revocation of the permission, the Administrative Court shall give priority to the matter.

(7) If the holder of public office does not cease performing the professional or other activity after the decision on the revocation of the permission has become final, the Commission shall inform the body responsible for the appointment and dismissal of the holder of public office. The body shall take appropriate measures against the holder of public office within 30 days in accordance with an Act and its integrity plan and shall inform the Commission of this.

 

Article 27

(Prohibition of membership and activities)

(1) A professional holder of public office may not be a member of or engaged in the management, supervision or representation activities in a company, economic interest grouping, cooperative, public institute, public fund, public agency or other entity governed by public or private law, the exceptions being societies, foundations and political parties.

(2) A non-professional holder of public office may not be a member of any entity governed by public or private law referred to in the preceding paragraph nor engaged in management, supervision or representation activities in these entities if the duties of their office include the direct supervision of their work.

(3) The prohibition referred to in paragraph one of this Article regarding the membership and the performance of management, supervision or representation activities in public institutes, public funds, public agencies and other entities governed by public or private law, if the entity governed by private law is vested with public authority or is a public service provider, shall also apply to non-professional mayors and deputy mayors who hold their office in the municipality that is related to the entities referred to in this paragraph in terms of founding, ownership, supervision and finance.

 

Article 28

(Termination of activity, office or membership)

(1) A holder of public office who, prior to taking office, performed an activity or held an office that is incompatible with their office under this Act or is contrary to the preceding Article shall cease to perform the activity or hold office no later than 30 days of the date of their election or appointment or the approval of their mandate.

(2) A holder of public office who, prior to taking office, was a member of bodies whose membership is incompatible with their office under this Act or is contrary to the preceding Article shall immediately submit their resignation or make a request to have their membership terminated; the membership shall be terminated within 30 days of the date of their appointment to office.

 

Article 29

(Warning by the Commission and the consequences of failure to comply)

(1) If a holder of public office does not cease to perform an activity, hold membership, or hold an office that is incompatible with their office under this Act within the time limit referred to in the preceding paragraph, the Commission shall warn the holder of public office and set the time limit by which the holder of public office must cease to perform the activity or hold office. The time limit set by the Commission may not be shorter than 15 days or longer than three months. The Commission shall warn the holder of public office who, after taking office commences an activity, gains membership or takes an office which is incompatible with their office under this Act and shall set the time limit by which the incompatibility in question must be eliminated. This time limit may not be shorter than 15 days or longer than three months.

(2) If the Commission establishes that the holder of public office continues to perform the activity, hold a membership or hold an office after the time limit set by the Commission has expired, it shall inform the relevant authority competent to propose or commence a procedure for the removal of the holder of public office from office. The competent authority shall inform the Commission of its final decision.

(3) The provisions of the preceding paragraph do not apply to directly elected holders of public office. If the Commission establishes that the facts referred to in the preceding paragraph in connection with directly elected holders of public office are true, it shall inform the public of its findings and publish them on its website.

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