Corporate Criminal Liability and Compliance Programs pages:253-311
Corporate Criminal Liability and Compliance Programs edition:First colloquium location:Rome date:12-14 May 2011
For a long time it was not possible to hold collective entities criminally liable under Belgian and Dutch law. As in most civil law jurisdictions at the time, corporate entities were considered inanimate amoral collective entities which have no body or soul to damn and therefore also lack the fundamental prerequisite for criminal liability, that is, guilt. The idea was that, in the end, corporate offences always come down to an individual committing an offence for the benefit of or on behalf of the corporate entity. Therefore, it was logical to hold that individual criminally liable, and not the corporation.
In both countries the legislator tried to avoid the inevitable by creating different types of substitute solutions. However, in 1950 and 1999 respectively, both countries answered the increasingly stronger call for corporate criminal liability. In the Netherlands corporate criminal liability was at first limited to economic offences, to be later transformed in a general liability system. The Belgian legislator, lagging behind, immediately opted for general corporate criminal liability in 1999.
We start our analysis with a general overview of the Belgian system. After briefly discussing the principal substitute solutions for corporate criminal liability, we focus on the regime of corporate criminal liability that was created in 1999. We analyse its scope of application (thereby answering the questions who, what, when and how), the peculiar issue of concurring liability, and finally, the penalties.
In Part III we turn to the Dutch system. This analysis follows the same structure as Part II. It goes without saying that we will pay special attention to the similarities and dissimilarities with the Belgian liability regime. Finally, Part III is followed by a general conclusion.