The Integrity and Prevention of Corruption Act (hereinafter: IPCA) defines conflict of interest as circumstances in which the private interest of an official person influences or appears to influence the impartial and objective performance of their public duties. The private interest of an official person means a pecuniary or non-pecuniary benefit which is either to their advantage or to the advantage of their family members or other natural or legal persons with whom they maintain or have maintained personal, business or political relations. For conflict of interest to be established, it therefore suffices that the performance of certain functions concurrently appears to influence the impartial and objective performance of that individual’s public duties.
Care must be taken to properly distinguish between the legal institutions of the conflict of interest and the incompatibility of office. Due to the competences or powers of office, concurrent performance of certain functions, as well as certain types of work or activities, has been expressly prohibited already by the legislator by means of the legal institute of incompatibility, which means that an individual is forbidden from performing these functions concurrently. All “functions” which are not covered by incompatibility are permitted to be performed by the individual, but the said individual must be aware of any potential conflict of interest at all times, and must do everything in their power to avoid it. Provisions on the conflict of interest inherently require that all relevant circumstances of each concrete case be taken into account.
Provisions of the IPCA on the due avoidance of the conflict of interest apply to official persons, who, according to the IPCA, include officials, high-ranking civil servants, and other public servants, as well as managers, and members of the management and supervisory boards of public sector entities. If an individual does not hold the status of an official person, the conflict of interest as defined by the IPCA cannot occur, however this does not mean that the conflict of interest might not have arisen according to a different law, statutory instrument, or code of conduct.
The legal provisions on the due avoidance the conflict of interest are principally binding for an official person who, immediately upon having detected actual or potential conflict of interest, is required to notify their superior in writing. If the said official person does not have superior, they are required to notify the Commission.
It is important to stress that provisions of the IPCA on the due avoidance of the conflict of interest do not apply to procedures in which the exclusion of an official person is regulated by another Act (subsidiary application of the provisions of the IPCA).
Provisions of the IPCA
(Obligation to avoid a conflict of interest)
(1) An official person shall pay attention to any actual or possible conflict of interest and shall make every effort to avoid it.
(2) An official person may not use his office or post to advance his personal interests or the personal interests of another person.
(The consequences of failing to comply with the obligation to avoid a conflict of interest)
(1) Unless otherwise provided by another Act, an official person who, upon taking up a post or office or during the performance of the duties of the post or office, finds that a conflict of interest has arisen or might arise must immediately inform his superior in writing, and if he has no superior, the Commission. In so doing, the official person shall immediately cease to perform any work with regard to the matter in which the conflict of interest has arisen, unless the delay would pose a risk.
(2) The superior or the Commission shall decide on the conflict of interest within 15 days and shall communicate the decision to the official person.
(Procedure for establishing a conflict of interest)
(1) If there is a possibility that a conflict of interest has arisen in the official conduct of official persons, the Commission may initiate a procedure for the establishment of the actual existence of the conflict of interest and its consequences.
(2) If it is established, on the basis of the procedure carried out, that a conflict of interest has arisen, the Commission shall inform the competent authority or the employer and set the time limit by which the body or the employer is obliged to inform it of the measures taken in this respect.
(3) If the Commission finds that, in the situation addressed, an official person knew or should have or could have known that the conflict of interest existed but, despite this, acted in contravention of the provisions on the prevention of conflicts of interest, the Commission shall inform all other competent authorities.
(4) The Commission may initiate a procedure referred to in paragraph 1 of this Article within two years of the performance of the official acts.
(Exceptions from the application of this chapter)
The provisions of this chapter do not apply to procedures in which the exclusion of an official person is regulated by another Act.