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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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person or to exercise control within the legal person, without excluding the criminal liability of the natural
persons who are perpetrators of the criminal offences (Art. 6, Paragraph 2 and 3). However, the Directive
2017/1371/EU is not recommending the criminal liability of legal persons as the preferred solution and
does not provide rules or recommendations for a harmonised regime of corporate liability at EU level.
A larger debate shall be opened in order to ensure such harmonised regime of corporate liability at EU
level can be achieved in the framework of the fundamental treaties.
9. RECOMMENDATIONS
9.1. Recommendations for policy at European level
A. Establishing a set of recommendations concerning the effective national regulation of the liability
of legal persons for criminal offences with effects over the European and national budget, the use
of European and national public funds and the functioning of the European and national public
administration.
Liability of legal persons should include corruption offences, frauds, money laundering and crimes against
the financial interest of the European Union and of the Member States.
Moreover, the liability of legal persons should be autonomous from the liability of the natural person
perpetuating the deed, both in substantive and procedural law. The identification, investigation,
prosecution or conviction of the legal and natural persons together should not be a requirement, as it
may allow a legal person to escape unpunished in cases where the fault is found to be anonymous or
collective or where the individual perpetrator could not be held liable for other reasons.
While criminal policy is the competence of the Member States, according to the Lisbon Treaty and the
Communication Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies
through criminal law79, “EU can tackle gaps and shortcomings wherever EU action adds value. In view
of the cross-border dimension of many crimes, the adoption of EU criminal law measures can help
ensuring that criminals can neither hide behind borders nor abuse differences between national legal
systems for criminal purposes.” In this context the form of a recommendation will probably be the best
first step.
Only a unified or similar liability system for the legal persons may allow fair competition and equal
treatment of legal persons across the European Union in the context of free movement of goods, capital,
services, and labour. In this respect:
1) If a Member State’s constitution and/or legal doctrine allows for it, criminal liability should be
recommended as the preferred instrument to use, as it has the greatest deterrent effect, provides
fair trial guarantees and effective investigative procedures.
2) If a Member State’s constitution and/or legal doctrine doesn’t allow for the regulation of the criminal
liability of legal persons, special administrative punitive liability or quasi-criminal liability should be
recommended and enforced with similar provisions as the criminal liability, in order to ensure
79 COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN
ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Towards an EU Criminal Policy:
Ensuring the effective implementation of EU policies through criminal law /* COM/2011/0573 final * Official
document available online at
(last accessed 08/12/2017).