30 / 69
The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
28
Number of sanctions of exclusion from
public procurement applied to legal
entities which committed crimes
against financial interest of European
Union
0
0
0
0
na
na
na
na
No statistical data
available.
Source: Answers of responsible authorities to requests based on the freedom of information.
Moreover, in Romania, although the accessory criminal sanction of prohibition to participate in public
procurement procedures is communicated to the authority in charge of executing the ban, the judicial
statistics dose not register systematically the sentences included in this sanction.
4.5.
Grounds for exemption from liability or punishment
One of the most effective ways in which corporate liability regimes are made effective not only from a
punitive point of view, but also with an important prevention component against corporate crimes are
the grounds for exemption from liability or punishment based on ‘due diligences’ and compliance
programmes. The existence of a solid compliance programme or the other organisational efforts to
ensure the correctness of a legal person and its agents (managers, employees, contractors etc.) will
diminish the risk of perpetrating a crime and therefore the risk of liability.
47
It is only fair to allow the legal
person to defend itself by proving these compliance mechanisms and tools are solid and normally
effective and that in the case of a criminal offence being committed, it is the result of a reckless agent,
not an organisational failure. Most countries following the organisational approach to criminal corporate
liability, like the Netherlands, Australia and Switzerland, offer a ‘due diligence defence’.
48
The problem rises however regarding who and how will prove and decide the compliance programmes
or other due diligences are solid and genuinely designed to limit liability risk and not only to ensure
defence if a guilty legal person is prosecuted.
49
Therefore the challenge is to ensure that a legal person’s
operations have not been designed as criminal offences with the shield of a formal compliance
programmed and that the occurrence of the criminal offence is an organizational accident.
For example,
in Italy, in order to be exempt from liability presumed for an organisational fault, the
organisation must prove, pursuant to article 6 paragraph 1, Legislative Decree 231/2001, that:
A.
the governing body has adopted and effectively implemented, before the commission of the
crime, organisational and management models
(e.g.: compliance programs) suitable for
preventing offences of the same kind occurring;
B.
the task of supervising the operation and the observance of models, their updating has been
entrusted to a specific body
(i.e. internal audit) with autonomous powers of initiative and
control;
47
Allens Arthur ROBINSON. 2008. “‘Corporate Culture’ as a Basis for the Criminal Liability of Corporations”. A
report prepared for the U.N. Special Representative of the Secretary-General on Human Rights and Business, p.
69.
48
Ibid
, pp. 68-71. PIETH, M., LOW, L.A. and BONUCCI, N. (eds.). 2014, The OECD Convention on Bribery: A
Commentary (2d ed). Cambridge, UK: Cambridge University Press, p. 223.
49
Ibid
, p. 69.