Policy OLAF BT

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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 offences2, 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 19973, 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”.
2 Official document available online at:
(last accessed 30/10/2017).
3 Official document available online at
(last accessed 30/10/2017).