Policy OLAF BT

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

A comparative analysis for improved performance

The state and public authorities, at central and local level, cannot be held criminally liable. Public

institutions can be held criminally liable, but not for any activities that are exclusively the responsibility

of public bodies and cannot be carried out legally by private bodies.

Private legal persons may be held liable for criminal offences committed:

for their core business activities (like the criminal breaches of the competition law, or of

environment laws)

in their interest (the offences bringing direct advantages to the legal person)

on their behalf (during business activities by any natural person acting on behalf of the legal

persons)

For crimes perpetrated in the interest or on behalf of the legal person, it may be held liable even if the

natural person committing the crimes is not officially and/or legally a representative or employee of the

legal person, like in the case of the real beneficiary of a business or the ‘de facto’

administrator/manager.

The criminal liability of legal persons in the Romanian legal system is direct, different and autonomous

from the criminal liability of natural persons that are physically committing criminal acts, acting on behalf

of the legal person or who have neglected to act, although the two are connected

. In this context, causes

of impunity, justifications or aggravating circumstances will be examined and decided separately for legal

persons and natural persons.

The Romanian criminal law principles impose a subjectivity condition for the guilt of perpetrating a crime,

therefore in the case of legal persons the subjective element is met regardless of whether the criminal

offences are the result of an intentional decision of the responsible persons or bodies or the result of the

lack of supervision or control mechanisms (including, but not limited to: poor internal organization,

insufficient work protection measures, budget constraints) within the legal persons that allowed the

perpetration of the criminal offence.

In the Romanian legal system, legal persons may be held liable for any criminal offence perpetrated for

their core business activities, in their interest or on their behalf as a result of an intentional decision of

management or control bodies or as a result of the lack of or deficiency in the supervision or control

mechanisms. Having said this, legal persons may be held criminally liable for corruption crimes, money

laundering, fraud, and crimes against the financial interest of European Union if the above conditions are

met. Moreover, in article 151, the Criminal Code provides clear rules on the criminal liability of legal

successors of a legal person who perpetuated a criminal offence and limits to the reorganisation of a legal

person prosecuted for a criminal offence.

Concerning criminal provisions tackling corruption, money laundering, fraud and crimes against the

financial interest of the European Union, several laws have been adopted in order to strengthen the

fight against corruption in Romania.

Money laundering was regulated on in 2002 and the law has been

Ibidem

Andra-Roxana TRANDAFIR-ILIE. 2015. “Răspunderea penală a persoani juridice” in SuperiorCouncil o Magistracy

and National Institute of Magistracy,

Conferințele Noului Cod

Penal. Bucharest.

Andra-Roxana TRANDAFIR-ILIE. 2013.

Răspunderea penală a persoanei juridice – Jurisprudența rezumata şi

comentata

, Bucharest: C.H Beck.

Ibidem.