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

liability is a sensitive issue which touches upon social conventions that still tend to
distinguish the ‘ordinary criminal’ from the ‘white collar criminal’:
“…legislative and executive attempts to render corporations criminally liable for a
range of fraudulent dealings, like prosecution strategies designed to render
corporations liable for manslaughter, often founder. This is not so much because of
concrete procedural or substantive barriers but rather because of discursive resistance
exemplified in the practices of relevant decision-making agencies – courts, lawyers, the
police. On other words, if corporate accountability or ideas of corporate
blameworthiness find no place or only a marginal place in broader social
understandings, it may be difficult or impossible to impose criminal liability.” 653
Most EU harmonisation measures attempt to break this ceiling of liability at national
level, albeit still to a limited extent (as it gives Member States the option to choose
between civil and criminal liability). The 2003 Framework Decision on private
corruption, for instance, provides for liability of legal persons both in relation to active
and private corruption when bribery is committed for their benefit by any person that
has a leading position within that legal person and who is “acting individually or as
part of an organ of the legal person.” Equally, liability should be extended to cases
where the commission of the offence was made possible by lack of supervision or
control. 654
The scope of many domestic laws was much narrower. In fact, it so remains in some
cases. By 2007 there is still a lot of resistance to implementing these provisions, with
only five Member States providing liability of legal persons under the Framework
Decision conditions. 655 By 2011, the Commission reported significant improvements
but still an “overall poor transposition of Article 5” with at least two countries not
having transposed Article 5(1) and 8 not having fully transposed Article 5(2). Slovakia
for example informed the Commission that criminal liability of legal persons had been
included in the draft amendments to the Criminal Code and Criminal Procedure Code,
whose adoption process was halted pending a Constitutional Court decision. 656
653 N. Lacey, “Contingency and Criminalisation”, in I. Loveland (ed) Frontiers of Criminality
(London: Sweet & Maxwell, 1995) 1, 13-14.
654 Article 5 (1) and (2) Framework Decision 2003/568/JHA, supra note 417.
655 European Commission Report COM(2007)328final, see supra note 450, 8.
656 European Commission, Report from the Commission to the European Parliament and the
Council based on Article 9 of the Council Framework Decision 2003/568/JHA of 22 July 2003 o
combating corruption in the private sector, COM(2011)309final, 6.
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