This article aims to understand if establishing responsibility of legal entities for offences within legislative instruments enacted in the exercise of competence provided for by the Lisbon Treaty will contribute to the evolution of European discipline of this type of liability. This, both from the point of view of its qualification (which could evolve into a proper criminal or at least quasi- criminal responsibility) and of its contents, with special regard to the imputation criteria the discipline of which should evolve in order to be more respectful of the principles relating to the conditions of criminal liability (or liability similar thereof).
From the perspective of the nature of the responsibility, it seems that whenever ex crimine liability of corporations is specifically referred to within acts adopted under (in particular) Art. 83 of the Lisbon Treaty, Member States should choose among sanctions which may be applied to collective entities, those correspondent to the highest afflictive level.
On the side of the liability regime, ‘specifics’ of ex crimine liability (whether proper criminal liability or a type of liability similar thereof) call for an innovation of the imputation mechanism that can be shaped by EU acts, in order to go beyond the ‘minimum standard’ currently provided by EU legislative instruments and to give relevance (introducing a specific imputation criterion or at least providing for a defence) to a fault of the corporate body; and open the way for a legal entity which is properly and effectively organized to be insulated from responsibility.
- Ex crimine liability of legal persons in EU legislation. An Overview of Substantive Criminal Law, European Criminal Law Review