Dreptul Uniunii nu impune pedepsirea penală a persoanelor juridice în cazul spălării banilor, fraudei sau faptelor de corupție

6 noiembrie 2018
242 citiri

The measures on the protection of the Union’s financial interests by means of criminal law are of fundamental importance for all harmonising activity in the field of substantive criminal law. The legal acts issued in this context often serve as models and are in part transferred to other areas.
The PIF Convention, which entered into force in 2002 and obligates Member States to punish fraudulent activity damaging to the Union, forms the basis of European criminal law on financial protection. Pursuant to Art. 1(1) PIF Convention, this includes – summed up roughly – intentional acts using or presenting false information that result in funds from the Union’s budget being wrongfully retained or illegally diminished. In addition, it covers the misapplication of funds that were originally lawfully granted. Furthermore, the PIF Convention includes several fragmentary regulations on the General Part. Thus Member States are obliged to penalise the participation in, instigation of, and attempt to commit EU fraud. However, these normative concepts are not defined, and thus it remains up to the Member States to specify them further. For example, national law determines when an act constitutes a punishable attempt and when it counts as a non-punishable preparatory act. Accordingly, the harmonisation effects of the PIF Convention are minor in that regard. Also, the guidelines regarding sanctions and jurisdiction are very general. The PIF Convention was supplemented by two protocols with respect to substantive law. Protocol I, which also entered into force in 2002, aims to protect the Union’s finances against attacks from within. It obligates Member States to punish acts of active or passive corruption by certain officials if the acts damage or could damage the financial interests of the Union. Protocol II, which became effective in 2009, on the one hand aims to create a common basis to combat money laundering damaging to the Union. On the other hand, it sets up minimum rules on the punishment of legal persons. When doing so, it remains up to the Member States whether they wish to hold these persons accountable under criminal or administrative law for the fraud, corruption or money laundering offences committed by their heads.

Kai Ambos
(Europeanised Substantive Criminal Law in the Broader Sense (Council of Europe and EU) în European Criminal Law, Cambridge University Press, iunie 2018, la pp. 324-325)

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