Molins News Liability of legal persons in the European Union

Liability of legal persons in the European Union

ComplianceKeys#9

The regulation of corporate liability for the commission of crimes or administrative offenses within companies differs significantly among the different Member States of the European Union.

Indeed, there is currently no EU directive or regulation unifying the regulation of the liability of legal persons for crimes or administrative offenses committed within their sphere of competence. However, there are several directives that advocate a homogeneous prosecution of certain offenses at the European level. For example, among others:

• Directive 2017/1371 of 5 July 2017 on combating fraud affecting the financial interests of the Union through criminal law; 
• Directive 2018/1673 of 23 October 2018 on combating money laundering by means of criminal law; 
• Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law; or 
• Directive 2011/36 of 5 April 2011 on preventing and combating trafficking in human beings and protecting victims.

Consequently, the absence of a harmonized legal text at the EU level means that Member States have to legislate at the national level on how to configure the liability of legal persons, causing significant differences between countries.

Certainly, this disparity in national regulations affects (i) the very nature of liability (criminal vs. administrative); (ii) the crimes or administrative offenses that can generate corporate liability (closed vs. open list); (iii) the status and procedural regulation of corporate liability (criminal vs. administrative procedure); (iv) and the possibility of avoiding or reducing corporate liability (legal provision for exemption from liability vs. no legal provision), among other issues. 

Below is a table with a summary of the state of affairs in the twenty-seven (27) Member States of the European Union:

Compliance Department of Molins Defensa Penal

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