To better understand the concept, we will start by defining a legal entity according to Romanian law. This is a form of organization created by humans that can only exist if the conditions provided by law are met, such as:

– organization

– purpose

– assets

In regulating the criminal liability of legal entities, the principles underlying this liability have been retained in line with the current Criminal Code, as amended by Law no. 278/2006.

Regarding the legal basis, this is found in the Criminal Code, specifically in Articles 135-151.

In this manner, the decision was made to adopt the model of direct liability for legal entities, as established in Belgian and Dutch law. Consequently, the criminal liability of a legal entity can be triggered by any individual acting under conditions specified by law (Article 136) and not solely by the actions of its governing bodies or representatives.

According to the current Criminal Code, not every legal entity can be held criminally liable. Article 135 of the Criminal Code states that all legal entities are subject to criminal liability, except for the state, public authorities, the Constitutional Court, and the Court of Accounts. A legal entity may be held liable when crimes are committed in the pursuit of its activities, in its interest, or on its behalf. The immunity of public institutions is limited by the nature of the crime committed. To determine whether a public institution can be held criminally liable, the act leading to the offense must be examined. In this way, if the action could be performed by a natural person or a private legal entity, the institution in question will bear criminal liability.

Guiding Principles in Criminal Matters Applicable to Legal Entities

1. The Principle of Unique Criminal Liability

This principle states that no person can be tried more than once for the same offense. In this context, a distinction must be made between the individual and the legal entity. When a legal entity commits an offense, two types of liability are at play: the liability of the legal entity itself and that of the natural person acting on behalf of the entity. There is no issue of double punishment for the individual, as each has a distinct psychological position. Thus, they do not share an interdependent relationship and the principle is not violated.

2. The Principle of Legality

A legal entity can be held criminally liable only if the law explicitly provides for it. In Romania, the criminal liability of legal entities is governed by the Criminal Code, and this principle emphasizes that no crime or punishment exists without a prior legal basis.

3. The Principle of Personality

The criminal liability of a legal entity is distinct from that of the natural persons acting on its behalf. Although the actions of an individual may lead to the liability of the legal entity, the latter is treated as a standalone entity before the law.

4. The Principle of Culpability

For a legal entity to be held criminally liable, a form of culpability must be proven. This is typically demonstrated through gross negligence or intent in the operation of the legal entity, as well as in the decisions made by its management.

During the trial phase for an offense committed by a legal entity, the penalty that the judge may impose is a fine, determined according to a daily-fine system, with both a specific limit and a general limit.

In addition to the main penalty of a fine, the court may also impose complementary penalties, including: dissolution of the legal entity; suspension of the entity’s activity or one of its activities for a period ranging from 3 months to 3 years; closure of some of its business units for a period from 3 months to 3 years. Prohibition on participating directly or indirectly in public procurement procedures for a period from one to 3 years, placement under judicial supervision, and the posting or publication of the conviction decision.

Ioana Prisecaru

Legal Intern R&R Partners