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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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C. the persons committed the crime by fraudulently evading the organisation and management
models;
D. there has been no omission or insufficient vigilance on the part of the body referred to in (B).
When the crime is committed by a person holding a subordinate position, the burden of proof is reversed
on behalf of the prosecutor. In case the crime is committed by a person not holding a management
position, or without decision powers within the legal person, the prosecutor will need to show that the
compliance programs were ineffective to prevent the crime50.
Thus, the law indirectly requires the organisation to be equipped with appropriate compliance programs,
aimed at the prevention of crimes provided by the law. In this regard, many medium and large sized
companies have adopted a set of policies51, governance and control documents, regulating crime-risk
activities and processes, setting up new internal bodies (e.g. Overseeing Bodies or Audit) or giving them
new functions and responsibilities, adding or modifying business procedures.
To ensure the validity of the compliance programs, these must comply with the requirements set out in
Article 6, paragraph 2 of Legislative Decree 231/2001, such as: (a) identifying the activities in which
criminal offences may be committed; (b) providing for specific protocols to plan training and
implementation of the organisation's decisions in relation to the offences to be prevented; (c) identifying
ways to manage financial resources to prevent the commission of offences; (d) providing information to
the body responsible for monitoring the operation and observance of the models; (e) introducing a
disciplinary system that is appropriate to sanction the failure to comply with the measures indicated in
the organisational model (i.e. compliance programs)52.
To sum up, the adoption of organizational models is not a legal obligation, but companies are
recommended to adopt it in order not to be held liable when crimes occur.
In Romania, on the other hand, the criminal law provides for a limited number of situations in which
criminal liability is not applicable: the amnesty for a criminal offence, the statute of limitations, the
absence or withdrawal of the injured party's complaint if the complaint generates the criminal action, the
reconciliation of parties, if possible. These conditions are equally applicable to natural and legal persons.53
The Criminal Codes also provides for a number of situations where a deed is not considered a criminal
offence, like the self-defence, the state of necessity etc. However, most of these situations are only
suitable for natural persons. On the other hand, the Criminal Codes also provides for several situations
where the guilty person is not punished, to the extent to which their deed can be justified or the guilty
person took actions to stop and repair the damages54. The latter situation is also applicable to legal
persons and, as a result, the legal person, although found guilty, will not be sanctioned. However, the
50 . 2016. La prova nel processo agli enti, Giappichelli, Torino.
51 Expert interview: Avv. Fabrizio Sardella (Assistant Professor in Criminal Law at University of Castellanza Carlo
Cattaneo – LIUC).
52 ZANNOTTI R. 2008. Il nuovo diritto penale dell'economia: reati societari e reati in materia di mercato finanziario.
MUCCIARELLI F. 2010. Una progettata modifica al D.Lgs. n. 231/01: la certificazione del modello come causa di
esclusione della responsabilità, in Società, 1247 ss.
For more details see also MUCCIARELLI F.:
(last accessed 30/06/2017).
53 Florin STRETEANU. 2015. „Cauzele care înlătură răspunderea penală și cauzele care înlătură sau modifică
executarea pedepsei” in the Superior Council of Magistracy and the National Institute of Magistracy, Conferințele
Noului Cod Penal.
54 Ibidem .