The evolution of European Union criminal law (1957-2012)

capacity directing or working for a private sector entity, in order to perform or refrain
from performing any act. 648 Many Member States contained narrower provisions before
the Framework Decision. Even after its implementation into national legal orders, 15
Member States maintained narrower provisions than the EU’s one in relation to active
private corruption and 9 did so in relation to passive corruption:
“NL limited the offence to instances where the employer or principle was not informed
of the case. LU requires that the employer is not aware and does not approve of the
criminal behaviour. DE, AT, IT and PL had limited the scope of application in line with
Article 2(3). DE limited the scope to acts relating to the purchase of goods or
commercial services; AT limited the offence to ‘legal acts’ and PL limited the offence
to behaviour resulting in losses, unfair competition or inadmissible preferential action.
DE has informed the Commission that new legislation to meet this requirement of the
Framework Decision is pending.” 649
3. Expanding criminalisation beyond definitions: increasing liable subjects and
establishing minimum maximum punishment
3.1. Expanding liability to legal persons
Moreover, expansion of national criminal law as a direct or indirect effect of European
criminal law was not confined to the expansion in scope of criminal offences. In
addition to these, many framework decisions also require the extension of criminal
liability to legal persons (and in any case require Member States to establish non
criminal liability). 650 Criminal liability of legal persons is a relatively new phenomenon
which begins to find its place in legal systems in general. 651 In 2004, for example,
Greece, Germany, Luxembourg or Italy did not provide for any criminal accountability
of legal persons. 652 Lacey notes how corporate liability and more so criminal corporate
648 Article 1 (a) (b) of the Framework Decision 2003/568/JHA, supra note 352.
649 More details are further listed in the implementation report, Report from the Commission,
supra note 450, 3-4.
650 See for instance Articles 8 and 9 of Framework Decision 2005/222/JHA, supra note 408;
Article 5 of the Framework Decision 2003/568/JHA, supra note 417; or Articles 6 and 7 of the
Framework Decision 2004/68/JHA, supra note 414.
651 For examples of how some national legal orders world wide have struggled with ensuring
legal criminal liability see, for instance, for the UK, C. Wells, “Cry in the Dark: Corporate
Manslaughter and Cultural Meaning” in Ian Loveland (ed) Frontiers of Criminality (London:
Sweet & Maxwell, 1995) 109; or for Canada, M. E. Beare, “Organized Corporate Liability:
Corporate Complicity in Tobacco Smuggling”, in M. E. Beare (ed) Critical Reflections on
Organized Crime, Money Laundering, and Corruption, op.cit.,183.
652
European Commission, Green Paper on the approximation, mutual recognition and
enforcement of criminal sanctions in the European Union, supra note 573, 31.
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