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‘Triggering Persons’ in ‘Ex Crimine’ Liability of Legal Entities

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Regulating Corporate Criminal Liability

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Abstract

This analysis aims at identifying the position of the subjects who might be regarded as the perpetrators of a predicate offence that can be attributed to a legal entity (so called ‘triggering persons’).

My idea is to try to distinguish different member states’ legal systems on a scale drawing progressively away from ‘leading positions’, depending on the importance attached to the sole ‘top positions’ or also to the ‘subordinate positions’ or even to the unlawful types of conduct otherwise committed by a ‘third person’ external to the organization, in order to attribute liability ‘ex crimine’ to a legal entity for a predicate offence. This analysis will be developed regardless of further distinctions connected to the different framework of criminal, quasi-criminal or administrative liability of legal entities.

In the light of the contact points among the legal systems of EU member states, which arise from a comparative analysis, we shall also be able to draw common lines to develop this specific aspect of discipline. The goal is to propose a common regulation which may allow for the approximation and harmonization of member states’ legal systems in accordance with the fundamental ‘principle of personality’ of corporate criminal liability, even under the specific charging criterion connected to the ‘triggering person’.

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Notes

  1. 1.

    In this regard, see Coffee (1999), pp. 15ff.; Wells (1999), pp. 219ff.

  2. 2.

    In these terms, see Trapasso (2012), pp. 252ff., with further references.

  3. 3.

    For more details on the developments of the notion of ‘organe ou représentant’ in French literature and case law, see Tricot (2012a), pp. 151ff.

  4. 4.

    The new legal provision set forth in Luxembourg’s criminal code tends to burst the banks of French legal provision, though going along the same direction. It does not only refer to an organ, as a concept also including the legal representative, but it also refers to a top manager, both a de iure manager and a de facto manager (‘par un de ses organes légaux ou par un ou plusieurs de ses dirigeants de droit ou de fait’), who committed a criminal offence in the name and in the interest (‘au nom et dans l’intérêt’) of a collective entity. The question concerning a real rooting ‘du modèle “identificatoire”’ in Luxembourg’s system is stressed in a problematic way by Tricot (2012b), pp. 406ff., which we refer to for any further examination.

  5. 5.

    For critical remarks to the ‘identification theory’, see Gobert (2012), pp. 225ff.

  6. 6.

    We are making special reference here to Article 3 of the Second Protocol to the Convention on the protection of the European Communities’ financial interests (PIF), adopted in 1997 and published in the Official Journal C221, 19.07.1997. The imputation pattern outlined in the second Protocol to the PIF Convention has been basically proposed again in the following years by several framework decisions and directives, which have been adopted to oblige member states to introduce corporate liability ‘ex crimine’ to protect relevant EC properties, which needed to be safeguarded.

  7. 7.

    Fiorella (2006), p. 5103, underlined how the law should be interpreted as referred anyhow to ‘quasi-leading positions’ (‘para-apicali’), in order to ensure the principle of personality of corporate liability ‘ex crimine’.

  8. 8.

    For further details, see Böse (2011), pp. 234ff.

  9. 9.

    In these terms, see Engelhart (2012), pp. 180ff., who clarifies that an offence committed by a low level employee can trigger corporate liability only if a person in a leading position is responsible for ‘lack of supervision’ over low level employee.

  10. 10.

    In this regard, also for further details, see Stärker (2007), §§ 2 and 3.

  11. 11.

    For further examination on this issue, see Nieto Martín (2012), pp. 190ff.

  12. 12.

    Arroyo Zapatero (2012), pp. 116ff. See also Espinoza de los Monteros de la Parra (2012), pp. 223ff.

  13. 13.

    In this perspective, we can point out that a ‘two-tier system’, which gives relevance to the unlawful types of conduct of both subjects in a ‘leading position’ and ‘subordinates’, despite some differences, can be detected in other member states’ legal systems, such as, for instance, Bulgaria (Art. 83a of the Law on Administrative Offences and Sanctions), Czech Republic (Section 8 of the Act on Criminal Liability of Legal Persons and Proceedings against them), Finland (Section 2, Chapter 9, criminal code), Hungary (Section 2 of the Act CIV of 2001 on Measures Applicable to Legal Entities under Criminal Law), Lithuania (Art. 20 criminal code), Poland (Art. 3 of the ALCE, Act on Liability of Collective Entities for Acts Prohibited under Penalty), Slovakia (Section 83a–b, criminal code) and Slovenia (Art. 4 of the ZOPOKD, Act on Liability of Legal Persons for Criminal Offences).

  14. 14.

    The described phenomenon is quite widespread in multinational companies committing offences abroad through ‘intermediaries’. In order to limit these phenomena, the OECD has urged member states to recognize corporate liability ‘ex crimine’ even if a criminal action is committed by a ‘third person’ on behalf of the same legal entity. It has also requested that the mechanisms to prevent criminal offences should be actually extended to the ‘thirds’, ‘such as agents and other intermediaries, consultants, representatives, distributors, contractors and suppliers, consortia, and joint venture partners (“business partners”)’: see Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions of 26 November 2009.

  15. 15.

    It is interesting to point out that the Estonian criminal code does not currently provide for corporate liability for offences committed by an ‘employee’ as a result of a breach of the duties of supervision or control by a person in a ‘leading position’, since it refers to ‘a body, a member of a body, a senior official, or a competent representative’. For this reason some legal scholars and international organizations criticized, under this viewpoint, the Estonian system because its legislation would conflict with EU obligations. For further examination on this issue, see Valenzano (2012a), pp. 486ff.

  16. 16.

    For more details, see Valenzano (2012a), pp. 494ff.

  17. 17.

    We are referring to the judgment of the Supreme Court of Cassation (Cour de Cassation, Chambre criminelle) of 23 February 2010, No. 09-81819, available at http://www.juricaf.org (20.11.2013), which upheld a company’s criminal conviction for the commission of an offence by an estate agent acting as a ‘representative’ of the corporation. For more details on this issue, see Tricot (2012a), pp. 154ff.

  18. 18.

    In this respect, on the possibility that a ‘principal-agent relationship’ is enough to meet this requirement, without a ‘master-servant relationship’ between them, see Smith and Hogan (2008), p. 201.

  19. 19.

    For further details on the notion of ‘associated person’, see Mongillo (2012), pp. 310ff.

  20. 20.

    On this point, see Valenzano (2012b), pp. 528ff.

  21. 21.

    For further examination on this issue, see Verstraeten and Franssen (2012), p. 268.

  22. 22.

    In these terms, also for an analysis on the further charging criteria, see Tricot (2012b), pp. 377ff.

  23. 23.

    For further analysis on this issue, see Valenzano (2012c), pp. 242ff.

  24. 24.

    In this regard, see Tiedemann (2012), pp. 4ff.

  25. 25.

    Roma Tre University research unit was headed by Prof. A. Fiorella and Prof. A. Maresca.

  26. 26.

    Sapienza University unit was directed by Prof. A.M. Stile.

  27. 27.

    Panthéon-Sorbonne University unit was managed by Prof. S. Manacorda and Prof. G. Giudicelli-Delage.

  28. 28.

    The Spanish Castilla-La Mancha University unit was conducted by Prof. L. Arroyo Zapatero and Prof. A. Nieto Martín.

  29. 29.

    This is an excerpt from Paragraph 6 of the “Guidelines on Liability ‘ex crimine’ of Legal Entities in EU Member States”, in Fiorella (2013), p. 441.

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Authors and Affiliations

  1. Department of Law, Philosophy and Economic Studies (DiGEF), Sapienza University of Rome, Rome, Italy

    Anna Salvina Valenzano

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  1. Anna Salvina Valenzano
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Correspondence to Anna Salvina Valenzano .

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Editors and Affiliations

  1. Faculty of Law, LMU Munich, Munich, Germany

    Dominik Brodowski

  2. ROXIN Rechtsanwälte LLP, München, Germany

    Manuel Espinoza de los Monteros de la Parra

  3. University of Fribourg, Fribourg, Germany

    Klaus Tiedemann

  4. Faculty of Law, LMU Munich, Munich, Germany

    Joachim Vogel

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Valenzano, A.S. (2014). ‘Triggering Persons’ in ‘Ex Crimine’ Liability of Legal Entities. In: Brodowski, D., Espinoza de los Monteros de la Parra, M., Tiedemann, K., Vogel, J. (eds) Regulating Corporate Criminal Liability. Springer, Cham. https://doi.org/10.1007/978-3-319-05993-8_9

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