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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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similar deterrent effect, fair trial guarantees and investigative procedures as in the case of the
criminal liability.
3)
Irrespective of the legal solutions preferred (criminal, administrative or quasi-criminal liability),
several situations should be covered:
3.1)
The legal person should be held liable for offences that were committed on its behalf
and/or
to its benefit;
3.2)
Liability should
cover actions of lower level agents of the legal person in order to be effective
,
combining this approach with the possibility of a due diligence defence. This will eliminate the
risk to evade liability in the case of big and complex corporations, motivating legal persons, on
the other hand, to develop proper compliance rules and corruption prevention mechanisms.
3.3)
The legal person shall be held liable for offences that its relevant agents committed in the
interest of another entity that is associated or related to the legal person
;
3.4)
Legal successors of the legal persons
, or the reorganised body or bodies, after a division, a merge,
a consolidation etc.
should bear the liability of the guilty legal person, in order to avoid
impunity
;
4)
Debarment from the public procurement procedures should be a harmonised sanction at European
level for legal persons found guilty of criminal offences, in order to protect the financial interests
of the contracting and financing authorities.
In this respect:
4.1)
Debarment from the public procurement procedures should be a mandatory sanction,
additional to fines or other economic punishments and included in the judiciary ruling
(not only
applicable in a case by case manner as provided by Directive 2014/24/EU),
in the case of criminal
offences with effects over the European and national budget, the use of European and public
national funds and functioning of the European and national public administration
.
5)
Mandatory sanctions limiting the access of or excluding legal persons convicted for criminal
offences from contracting with public authorities for grants, concessions etc. should also be
recommended,
at least in the case of legal persons convicted for corruption offences, fraud, money
laundering and crimes against the financial interest of the European Union and of the Member States.
6)
The minimum and maximum period of debarment from public procurement as a sanction for
criminal offences perpetuated by legal persons should be unified
, in order to allow effective
verifications and conclusion of public procurement contracts across Europe.
7)
The “due diligence defence” shall be recommended and promoted, as it has a great preventive
effect.
The regulation of the “due diligence defence” shall include the possibility of the court to
evaluate the seriousness and practical implementation of compliance mechanisms before
sentencing.
B.
A public online database of debarred economic operators should be available at European level
,
for contracting authorities at least, if not for the general public. It should be built with the European
Commission coordination, based on the cooperation of member states.
Further debates should be organised in order to determine if the publication of such database for the
general public doesn’t represent a real accessory penalty to the one imposed by the judge, seriously