For practical and legal considerations similar to those evoked in the section relating to corporate civil liability (section II, part I), we limit ourselves to providing an overview of existing legislation in some of the EU Member States, the US and Canada in relation to extraterritorial criminal liability. 1
This chapter will not describe the laws of the 28 eu member States but will highlight the major differences between them to identify those States which currently offer the “most successful” corporate criminal liability regimes and thus should be favoured by victims with a choice of forum.
The main scenario considered in this part is that of a multinational company whose parent company is headquartered in an EU Member State. Through its investments, the company has committed human rights violations abroad.
Corporate Criminal Liability in EU Member States
In criminal cases, there is no equivalent to ec regulation 44/2001 governing civil matters (see Section II, Part I on extraterritorial corporate civil liability). Notwithstanding some exceptions, each EU Member State organises its own legal approach to this issue and maintains extraterritorial criminal laws which allow the State to hold a parent company liable for acts committed by its overseas subsidiaries. The principle of corporate criminal liability has continued to gain head wave in the eU, although the Member States disagree on the precise rules to apply.
Complaints filed in Belgium and france against Total
Suits filed four months apart in Belgium and France against the French company Total form a “leading case” in this area. On April 25, 2002, four Burmese refugees filed a civil suit in Brussels naming the France-based parent company of Total (formerly Total Fina Elf) and its Burmese subsidiary METR (Total Myanmar Exploration and Production). In application of the universal jurisdiction principle (see below), Total was accused of complicity in crimes against humanity committed in the course of the multinational’s operations on the Yadana gas pipeline in Burma. On 26 August 2002, two Burmese refugees who had been victims of kidnapping and forced labour filed a similar suit in Paris in application of the active personality jurisdiction principle (the alleged perpetrator was a French national). For technical reasons, only company executives, not the firm itself, were targeted in this case. The Belgian and French courts carried out their legal examinations in parallel and without consultation until each suit was stayed 2 .
Recent regional and international conventions on financial, economic and transnational crime invite, but do not require, signatories to introduce the criminal liability of legal persons into domestic law. 3 Article 10, paragraph 4 of the United Nations Convention against Transnational Organized Crime calls for legal persons to be subject to effective, proportionate and dissuasive civil, administrative or criminal sanctions. Council of Europe recommendations 4 and several common positions and framework decisions adopted within the EU are couched in similar terms.
Most EU Member States, including both common law and civil law countries, have already adopted this principle. This guide does not attempt an exhaustive comparison of the corporate criminal regimes in place within the various EU Member States, but identifies discernable trends among them.
The principle of corporate criminal liability is notably recognised in Austria, Belgium, Denmark, Estonia, Finland, France, Ireland, Norway, the Netherlands, Poland, Portugal, Romania, the United Kingdom, Luxembourg and Spain. 5
Greece considers the principle to be unconstitutional. Italy implemented a system of corporate administrative liability sometimes considered as a “quasi-criminal” liability. 6 Germany has adopted hybrid measures. 7 Before addressing the principle of corporate criminal liability regimes in EU Member States, there is a central question, in both civil and criminal matters, of how a parent company can be held liable for human rights violations committed by a subsidiary “for the benefit” of the multinational. The multinational per se does not have legal personhood. Its different entities, i.e. the parent company and its subsidiaries, are separate legal persons by virtue of the principle of limited liability. When a multinational group’s legal and illegal activities are closely intertwined, particularly with regard to economic and financial crime, it is difficult to identify the respective roles of different legal entities within the multinational.