«Trading in Influence: Corruption Revisted». How a better understanding of the systemic character of trading in influence can help the Council of Europe and its Member States choosing the right instruments to tackle this form of corruption

A fundamental paradox in western societies has emerged: cases concerning trading in influence become more and more imminent and with it the necessity to deal effectively with this phenomenon. International conventions call for the criminalization of this form of corruption but many States are hesitant to establish this form of corruption as a criminal offence under their domestic law. Recent scandals such as the Duchess of York, Sarah Ferguson, promising access to her ex-husband Prince Andrew, who serves as a quasi-official trade envoy for Great Britain, to ‘rich businessmen' is just one of the more obvious cases in which a person promises to exert an improper influence over the decision-making process of a public official in return for an undue advantage. Current allegations of the illegal financing of Sarkozy's 2007 election campaign by L'Oreal's heiress Bettencourt and the influencing by the others involved in this case, are exemplary of the value of ‘having access to the decision maker'. Trading in influence, or influence peddling, is not something new in the debate on corruption. It found its way in the Council of Europe's Criminal Convention on Corruption (hereinafter ‘COE Convention') as early as 1999. The principal aim of the Convention is to develop common standards concerning certain corrupt offences, although it does not prescribe a uniform definition of corruption. By harmonising the definitions for specific corrupt offences, it aims at meeting the requirement of dual criminality. The COE Convention has been ratified by 43 States, over one fourth of these States have made a reservation against the undertaking to introduce criminal provisions for trading in influence. Among these are the United Kingdom, Denmark and the Netherlands. Nevertheless, allegations of trading in influence and unjustified influencing are omnipresent in media coverage. From the latest COE Convention Evaluation and Compliance reports, it becomes clear that many of the ratifying States face difficulties in providing adequate legal instruments in their anti-corruption policies to deal with trading in influence. The more surprising it is that the Council of Europe and its Member States were not actively discussing this topic in order to reach a common ground for a provision on trading in influence. Why does the Council of Europe persistently continue to stress the importance of criminalizing trading in influence while some of its Member States are determined in their refusal to criminalize trading in influence without seeking for further dialogue? Few analyses were to be found on this paradox although the topicality of this pressing matter is evident. In this paper I will explain how, considering the systemic character of trading in influence can help the Council of Europe and its Member States choosing the right instruments to tackle this form of corruption.