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The preventive role of the judiciary in protecting the financial interest of the European Union.

A comparative analysis for improved performance

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II.

FINDINGS

3.

THE CRIMINAL LIABILITY OF THE LEGAL PERSON

3.1.

International law and the criminal liability of the legal person

Several documents in the field of international law emphasize the need to regulate in the national legal

framework the criminal or other forms of liability of the legal person for the criminal offences committed.

In a chronological order the most important international legal documents on the topic include:

Recommendation No. R (88) 18 adopted by the Committee of Ministers of the Council of Europe on

20 October 1988 on the liability of enterprises for offences

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, formulated taking into consideration

“the increasing number of criminal offences committed in the exercise of the activities of enterprises

which cause considerable damage to both individuals and the community” and the need to regulate

the liability for these acts “beyond existing regimes of civil liability of enterprises”. The text of the

Recommendation is an invitation to the States to regulate in order to retain the criminal liability of

enterprises regardless of whether or not the natural person who is the author of the acts or omissions

of a criminal nature has been identified; however, it does not recommend exonerating individuals

from liability if they are identified. In essence, the recommendation stresses the need to retain a

personal responsibility of the legal person, distinct from that of the natural person called to represent

it.

The Second Protocol of the Convention on the protection of the European Communities' financial

interests, Council of the European Union Act of 19 June 1997

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,

stated in Article 3 that “each Member

State shall take the necessary measures to ensure that legal persons can be held liable” for at least

three types of criminal offences:

1.

fraud,

2.

active corruption,

3.

money laundering.

The liability of the legal person is engaged provided that the criminal offence is perpetrated to their

benefit “by any person, acting either individually or as part of an organ of the legal person, who has

a leading position within the legal person, based on:

o

a power of representation of the legal person, or

o

an authority to make decisions on behalf of the legal person, or

o

an authority to exercise control within the legal person.”

The protocol calls for the national regulation of the liability of legal persons for the perpetuation of

the aforementioned criminal offences, as well as for its “involvement as accessories or instigators in

such fraud, active corruption or money laundering or the attempted commission of such fraud”.

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Official document available online at:

https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2732062 &SecMode=1&DocId=698704&Usage=2

(last accessed 30/10/2017).

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Official document available online at

: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:31997F0719(02)

(last accessed 30/10/2017).