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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 organisation has taken a significant amount of profit from the crime and the offence was
committed by persons in the decision-making position or by persons subjected to their direction. In
the last case, it has to be facilitated by serious organisational shortcomings;
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in case of repeated offences.
Ban sanctions may last no less than three months and no more than two years, and, according to article
14, ban sanctions target the specific activity referred to the illicit activity. The judge selects the type and
duration of the proceedings based on criteria set out at article 11, considering the effect of the individual
sanctions to prevent the reiteration of offences.
In Romania
, according to the Criminal Code, the accessory criminal sanctions applicable to the legal
persons, including the ban from participation to public procurement, can only be applied when the
principal sanction, the fine, has been decided by the Court. The Criminal Code provides that deciding on
an accessory sanction is mandatory when the law explicitly provides for the sanction
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, which happens
rarely. The corruption criminal offences, frauds, money laundering offences or crimes against the financial
interest of the EU are not provided for as mandatory accessory sanctions.
Moreover, according to Law no. 253/2013 on the execution of criminal punishments, the criminal
conviction including the accessory sanction of prohibition to participate in public procurement
procedures for a limited period from 1 to 3 years is communicated to the administrator of the electronic
system for public procurement (The Agency for the Digital Agenda of Romania, administrating the
SEAP/SICAP system). The Agency subsequently operates a ban on participating to procedures for the
convicted legal persons. The length of the exclusion is from one to 3 years, according to the judge’s
decision.
Both in Romania and Italy, the ban from participating in public procurement refers to the direct and
indirect participation to public procurement procedures, including thus the participation as a bidder, a
subcontractor, a supporting third party.
In Romania, expert consultation through interviews has revealed
two main critiques regarding the
criminal liability of legal persons:
1.
The prohibition of participating to public procurement is not a mandatory sanction for none of
the corruption offences or for frauds, including frauds against the financial interest of the
European Union. As a result, the exclusion form public procurement is not provided in all cases
where needed.
2.
On the other hand, the Courts practices extended the liability too much, to acts that are specific
to natural persons, as an artificial way to generate civil reparations for the victims of the offences.
And in this context the exclusion from public procurement as an accessory criminal sanction can
be decided against legal persons that are not a threat to the correctness of public procurement,
affecting competition.
On the other hand,
in Greece
, where legal persons are not criminally liable, but can receive administrative
punishments if involved in the criminal offence of a natural person, the exclusion from public grants, aids,
subsidies, awarding of contracts for public works or services, procurement, advertising and tenders of the
public sector or of the legal persons belonging to the public sector may be imposed:
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The Romanian Criminal Code, art. 138.