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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
22
4.
PENALTIES FOR LEGAL PERSONS FOR FRAUD, CORRUPTION, MONEY
LAUNDERING AND CRIMES AGAINST THE FINANCIAL INTERESTS OF THE EU
4.1.
Principal and accessory criminal sanctions for legal persons in Europe
A short list of international conventions mentions concrete criminal sanctions for legal persons, when
criminal liability of legal entities is required. These international conventions are: (1) the OECD
Convention, (2) the Council of Europe Criminal Law Convention and (3) the UNCAC, all of them
recommending fines and confiscation of the proceeds of crime (or a monetary sanction with comparable
effect). However, all international conventions ask for effective, proportionate and dissuasive sanctions.
Several sanctions are common within the punitive framework for legal persons including
38
:
Fines;
Confiscation of the proceeds derived from or obtained via the crime or extended confiscations;
Dissolution, generally as an exceptional penalty that can only be applied under certain
circumstances;
Restrictions to corporate rights, including:
o
A temporary or permanent prohibition on conducting certain activity;
o
Prohibitions/restrictions to operate for a period of time / in a determined place / using a
subsidiary or branch etc.;
o
Revocations of a permit, license, concession, authorisation etc.;
o
Restrictions to permits, licenses, concessions, authorisations etc.;
o
Prohibition on participating in public bidding procedures, public procurement,
agreements for public-private partnerships etc.;
The obligation to develop and implement a programme of effective, necessary and reasonable
measures;
The publication of the ruling.
While fines are always present in all systems of punitive corporate liability, including the criminal liability
system, the quasi-criminal liability system, the system of administrative punitive liability for criminal
offences or for administrative offences, the level, system and practical enforcement of fines vary so much
that it is difficult to identify a unifying criterion of proportionality and deterrence. Moreover, OECD
stresses that in most states monetary sanctions are not sufficiently severe to have a deterrence effect on
large multinational corporations.
39
Moreover, other sanctions vary greatly from one legal system to another and “the same sanction, e.g.
disbarment from public procurement, may be considered a punishment in one country (Romania), a
security measure in another (Croatia) and an administrative sanction in a third country (Estonia).”
40
38
OECD Anti-Corruption Network for Eastern Europe and Central Asia. 2015.
Op. cit.
, pp. 35-45.
39
OECD Working Group on Bribery in International Business Transactions. 2013. Phase 2 Report on Implementing
the OECD Anti-Bribery Convention, p. 65.
40
Ibid
, p. 35.