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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 The UN Convention against Corruption (UNCAC), adopted by General Assembly resolution 58/4 of
31 October 20038 stipulates in Article 26 regulations for the liability of legal persons for participating
in the corruption offences established in accordance with the Convention. According to UNCAC,
“subject to the legal principles of the State Party, the liability of legal persons may be criminal, civil
or administrative”, “without prejudice to the criminal liability of the natural persons”. As the other
aforementioned conventions, UNCAC stresses the importance of effective, dissuasive and
proportionate sanctions, either criminal or non-criminal, including but not limited to monetary
sanctions.
As mentioned, within the framework of these international recommendations for ratifying states,
national legislatures can decide on the form of legal liability they impose to legal persons for criminal
offences. Criminal liability is the most vigorous of liability forms and recommended with priority. It offers
the advantage of the most dissuasive sanctions and it enables the most effective investigative procedures,
while also providing better fair trial guarantees for the defendants. But international conventions take
into account that not all national constitutions and/or legal doctrines allow, in their criminal law, the idea
of criminal liability for legal persons. Therefore, different states accommodated differently the
recommendations of the conventions.
3.2. Models and characteristics of the criminal liability of the legal person
While corporate criminal liability was first invented in the common law system in the 19th century, in
different forms in the United States and the United Kingdom, only to become generalised in the common
law systems in the 20th century, the concept penetrated rather slowly on the continent, being first
introduced in the Dutch criminal code in 1950. Until three decades ago, in all jurisdictions the liability of
legal entities was first implemented for statutory offences and was later extended to mens rea offences
as well.
3.2.1. Models of corporate liability
According to the OECD Anti-Corruption Network for Eastern Europe and Central Asia assessment of the
“Liability of Legal Persons for Corruption in Eastern Europe and Central Asia” 9, one can identify four
systems of corporate punitive liability:
a. Criminal liability.
b. Quasi-criminal liability, present in “jurisdictions that only authorize the sanctioning of legal persons,
without addressing the question whether a corporation itself can be guilty of committing crime”.
Within this system sanctions are stipulated in the criminal law and the ends concerning the liability
of legal persons are very similar with the ones of the criminal liability of legal persons. However, there
are major theoretical and procedural differences between the systems.
8 Official document available online at:
(last accessed
30/10/2017).
9 OECD Anti-Corruption Network for Eastern Europe and Central Asia. 2015. Liability of Legal Persons for
Corruption in Eastern Europe and Central Asia. Paris: OECD, pp. 12-13.Text available online at:
(last accessed 30/10/2017).