¹ Defining economic and financial criminal law is a challenge in itself. Indeed, as a branch of criminal law, it is quite ill-defined. See Ligeti, Katalin & Franssen, Vanessa, Current Challenges in Economic and Financial Criminal Law in Europe and the US, in Challenges in the Field of Economic and Financial Crime in Europe and the US 2–5 (Katalin Ligeti & Vanessa Franssen eds., 2017).Google Scholar

² For a critical analysis of the EU's regulatory approach in the field of financial crime see generally Herlin-Karnell, Ester, Constructing Europe's Area of Freedom, Security, and Justice Through the Framework of “Regulation”: A Cascade of Market-Based Challenges in the EU's Fight Against Financial Crime, 16 German L.J. 49, 52 (2015).Google Scholar

³ For instance, it is interesting to observe the evolution between 2000 and 2012. Whereas the authors of Corpus Juris still concluded that “divergence is strong” with respect to the acceptability of corporate criminal liability, the authors of a 2012 study ordered by the European Commission established that “[d]espite a tendency towards the introduction of criminal liability of legal persons for offen[s]es, significant differences still exist in the approach developed in the member states.” Delmas-Marty, Mireille & Vervaele, John A. E., The Implementation of the Corpus Juris in the Member States 74–75 (2000); Vermeulen, Gert, De Bondt, Wendy & Ryckman, Charlotte, Liability of Legal Persons for Offences in the EU 10 (2012).Google Scholar

⁴ For a more extensive analysis of the Engel criteria and comparison with the case law of the Court of Justice see Franssen, Vanessa, La notion “pénale”: mot magique ou critère trompeur? Réflexions sur les distinctions entre le droit penal et le droit quasi pénal, in Existe-t-il encore un seul NON BIS IN IDEM aujourd'hui? 56–91 (Delphine Brach-Thiel ed., 2017).Google Scholar

⁵ See also, e.g., Faure, Michael & Weber, Franziska, The Diversity of the EU Approach to Law Enforcement: Towards a Coherent Model Inspired By a Law and Economics Approach, 18 German L.J. 823 (2017).Google Scholar

⁶ Ligeti & Franssen, supra note 1.Google Scholar

⁷ For a critical analysis see generally Harding, Christopher, The Role of Whistleblowing and Leniency in Detecting and Preventing Economic and Financial Crime: A Game of Give and Take?, in Challenges in the Field of Economic and Financial Crime in Europe and the US 95 (Katalin Ligeti & Vanessa Franssen eds., 2017).Google Scholar

⁸ See, e.g., Barkow, Anthony S. & Barkow, Rachel E., Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct (2011); Uhlmann, David M., Deferred Prosecution and Non-Prosecution Agreements and the Erosion of Corporate Criminal Liability, 72 Md. L. Rev. 1295 (2013).Google Scholar

⁹ See, e.g., Cappel, Alexander, The Necessity of Compliance Programmes Under German Law: “Burden” or “Blessing”?, in Challenges in the Field of Economic and Financial Crime in Europe and the US 57 (Katalin Ligeti & Vanessa Franssen eds., 2017).Google Scholar

¹⁰ See, e.g., Khanna, Vikramaditya, Reforming the Corporate Monitor?, in Anthony S. Barkow & Rachel E. Barkow, Prosecutors in the Boardroom: Using Criminal Law to Regulate Corporate Conduct 226. (2011); Zagaris, Bruce, Prosecutors and Judges as Corporate Monitors? The US Experience, in Challenges in the Field of Economic and Financial Crime in Europe and the US 19 (Katalin Ligeti & Vanessa Franssen eds., 2017).Google Scholar

¹¹ Khanna, supra note 10, at 227–88.Google Scholar

¹² Franssen, Vanessa, European Sentencing Principles for Corporations 260–70 (Jun. 15, 2013) (Ph.D. dissertation, KU Leuven).Google Scholar

¹³ Regulation 596/2014, of the European Parliament and of the Council of 16 Apr. 2014 on Market Abuse and Repealing Directive 2003/6/EC of the European Parliament and the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC, 2014 O.J. (L 173) 1 [hereinafter Market Abuse Regulation]; Directive 2014/57/EU, of the European Parliament and of the Council of 16 Apr. 2014 on Criminal Sanctions for Market Abuse, 2014 O.J. (L 173) 179 [hereinafter Market Abuse Directive].Google Scholar

¹⁴ Directive 2015/849, of the European Parliament and of the Council of 20 May 2015 on the Prevention of the Use of the Financial System for the Purposes of Money Laundering or Terrorist Financing, Amending Regulation (EU) 648/2012, and repealing Directive 2005/60/EC and Commission Directive 2006/70/EC, 2015 O.J. (L 141) 73 [hereinafter The 4^th Anti-Money Laundering Directive]. It should be noted, though, that this Directive only obliges Member States to adopt administrative sanctions. For an in-depth analysis of the changes introduced by the Fourth Anti-Money Laundering Directive see the paper of Maria Bergström in this issue.Google Scholar

¹⁵ Directive 2014/62/EU, of the European Parliament and of the Council of 15 May 2014 on the Protection of the Euro and Other Currencies Against Counterfeiting by Criminal Law, and Replacing Council Framework Decision 2000/383/JHA, 2014 O.J. (L 151) 1 [hereinafter Euro Counterfeiting Directive].Google Scholar

¹⁶ Directive 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the Fight Against Fraud to the Union's Financial Interests by Means of Criminal Law, 2017 O.J. (L 198) 29 (EU) [hereinafter: PIF Directive].Google Scholar

¹⁷ See id. art. 11; Market Abuse Directive, supra note 13, art. 10; Euro Counterfeiting Directive, supra note 15, art. 8.Google Scholar

¹⁸ See, e.g., Euro Counterfeiting Directive, supra note 15, art. 9; PIF Directive, supra note 16, art. 10.Google Scholar

¹⁹ See, e.g., PIF Directive, supra note 16, art. 16.Google Scholar

²⁰ See Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts art. 2, Oct. 2, 1997, 1997 O.J. (C 340) 1. Further telling is that Id. art. 29.Google Scholar

²¹ Directive 2008/99/EC, of the European Parliament and of the Council of 19 Nov. 2008 on the Protection of the Environment Through Criminal Law, 2008 O.J. (L 328) 28 [hereinafter Environmental Crime Directive].Google Scholar

²² See id. at art. 7.Google Scholar

²³ Directive 2009/123/EC, of the European Parliament and of the Council of 21 Oct. 2009, Amending Directive 2005/123/EC on Ship-Source Pollution and on the Introduction of Penalties for Infringements, 2009 O.J. (L 280) 52 [hereinafter Ship-Source Pollution Directive]. It is worth noting that the 2005 Directive did not contain any particular provisions on legal persons, neither with respect to their liability nor regarding the applicable penalties.Google Scholar

²⁴ See, e.g., Euro Counterfeiting Directive, supra note 15, art. 7.Google Scholar

²⁵ See Council Framework Decision 2001/413/JHA of 28 May 2001, Combating Fraud and Counterfeiting of Non-Cash Means of Payment, art. 8, 2001 O.J. (L 149) 1 [hereinafter Framework Decision Fraud Non-Cash Means of Payment].Google Scholar

²⁶ See Council Framework Decision 2003/568/JHA of 22 July 2003 on Combating Corruption in the Private Sector art. 6, 2003 O.J. (L 192) 54 [hereinafter Framework Decision Corruption].Google Scholar

²⁷ See Council Framework Decision 2002/475/JHA of 13 June 2002 on Combating Terrorism art. 8, 2002 O.J. (L 164) 3. This Framework Decision has been replaced by Directive 2017/541 of the European Parliament and of the Council of 15 March 2017 on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA and Amending Council Decision 2005/671/JHA, 2017 O.J. (L 88) 6. Nonetheless, as far as the liability of and sanctions for legal persons is concerned, Articles 17 and 18 of the Directive simply reiterate the contents of Articles 7 and 8 of the 2002 Framework Decision.Google Scholar

²⁸ See Council Framework Decision 2008/841/JHA of 24 Oct. 2008 on the Fight Against Organized Crime art. 6, 2008 O.J. (L 300) 42. Organized crime is now largely viewed as economic or business crime committed by “entrepreneurs who operate under conditions of illegality.” See Varese, Federico, What is Organised Crime?, in Redefining Organised Crime. A Challenge for the European Union? 33–34 (Stefania Carnevale, Serena Forlati & Orsetta Giolo eds., 2017).Google Scholar

²⁹ Case C-176/03, Commission v. Council, 2005 E.C.R. I-7879 (annulling Framework Decision 2003/80/JHA of 27 Jan. 2003 on the Protection of the Environment Through Criminal Law); Case C-440/05, Commission v. Council, 2007 E.C.R. I-9097 (annulling Council Framework Decision 2005/667/JHA of 12 July 2005 to Strengthen the Criminal Law Framework for the Enforcement of the Law Against Ship-Source Pollution). In this landmark case law, the Court of Justice of the European Union (CJEU) ruled that, prior to the Lisbon Treaty, the EC legislator could require Members States, under the former First Pillar, to adopt and apply effective, proportionate, and dissuasive criminal penalties if the EC considered such measures “necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.” See Case C-176/03, Commission v. Council, 2005 E.C.R. I-7879, para. 48. By contrast, “the determination of the type and level of the criminal penalties to be applied does not fall within the Community's sphere of competence.” See Case C-440/05, Commission v. Council, 2007 E.C.R. I-9097, para. 70. This case law subsequently led to the adoption of paragraph two of article 83 of the TFEU. For an analysis of this provision see Franssen, Vanessa, EU Criminal Law and Effet Utile: A Critical Examination of the Union's Use of Criminal Law to Achieve Effective Enforcement, in EU Criminal Law and Policy. Values, Principles and Methods 87–88 (Joanna Beata Banach-Gutierrez & Christopher Harding eds., 2017).Google Scholar

³⁰ See, e.g., Vagliasindi, Grazia Maria, The EU Environmental Crime Directive, in Environmental Crime in Europe 36 (Andrew Farmer, Michael Faure & Grazia Maria Vagliasindi eds., 2017); Faure, Michael G., Effective, Proportional and Dissuasive Penalties in the Implementation of the Environmental Crime and Ship-Source Pollution Directives: Questions and Challenges, Eur. Energy and Envtl. L. Rev. 256, 257–58 (2010).Google Scholar

³¹ Case C-68/88, Commission v. Hellenic Republic, 1989 E.C.R. 339, paras. 23–4 (emphasis added). The Court of Justice ruled that (former) Article 5 TEC (current Article 4 (3) TEU) “requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law,” and [W]hilst the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. Id. para. 24 (emphasis added).Google Scholar

³² See, e.g., PIF Directive, supra note 16, art. 6; Council Directive 2013/40/EU of 12 Aug. 2013 on Attacks Against Information Systems and Replacing Council Framework Decision 2005/222/JHA, art. 10, 2013 O.J. (L 218) 8; Council Framework Decision 2008/841/JHA of Oct. 24 2008 on the Fight Against Organized Crime art. 5, 2008 O.J. (L 300) 42.Google Scholar

³³ Framework Decision Fraud Non-Cash Means of Payment, supra note 25, art. 7.Google Scholar

³⁴ See, e.g., id.; Environmental Crime Directive, supra note 21, art. 6; Euro Counterfeiting Directive, supra note 15, art. 6; Market Abuse Directive, supra note 13, art. 8. In the pending proposal for a Directive replacing the latter Framework Decision, the excerpt will be deleted. See Proposal for a Directive of the European Parliament and of the Council on Combating Fraud and Counterfeiting of Non-Cash Means of Payment and Replacing Council Framework Decision 2001/413/JHA, art. 9, COM (2017) 489 final (Sept. 13, 2009).Google Scholar

³⁵ See, e.g., Ship-Source Pollution Directive, supra note 23, art. 8b; The 4^th Money Laundering Directive, supra note 14, art. 60 paras. 5–6.Google Scholar

³⁶ Case C-7/90, Criminal proceedings against Paul Vandevenne, Marc Willems, Jozef Mesotten and Wilms Transport NV, 1991 E.C.R. I-4383, para. 13.Google Scholar

³⁷ For a more detailed analysis of the theoretical and practical objections to corporate criminal liability see Vanessa Franssen, Corporate Criminal Liability and Groups of Corporations: Need for a More Economic Approach, in White Collar Crime: A Comparative Perspective 275–77 (Katalin Ligeti & Stanislaw Tosza eds., 2018).Google Scholar

³⁸ See generally Dölling, Dieter & Laue, Christian, Corporate Criminal Liability in Germany. A Never Ending Story?, in La responsabilité pénale des personnes morales en Europe—Corporate Criminal Liability in Europe 25 (Stanislas Adam, Nathalie Colette-Basecqz & Marc Nihoul eds., 2008); Engelhart, Marc, Corporate Criminal Liability and Compliance in Germany, in Corporate Criminal Liability and Compliance Program 168–69 (Antonio Fiorella & Alfonso Maria Stile eds., 2011).Google Scholar

³⁹ For a summary of the Italian system see, e.g., Astolfo Di Amato, Italy, in International Encyclopaedia of Laws: Criminal Law paras 145–150 (Frank Verbruggen et al. eds., 2015). For a more extensive analysis see, e.g., Fabrizio Cugia di Sant'Orsola & Silvia Giampaolo, Liability of Entities in Italy: Was it Not Societas Non Delinquere Potest?, 2 NJECL 59, 59–74 (2011).Google Scholar

⁴⁰ See, e.g., Jönsson, Siv, Criminal Legal Doctrine as a Spanner in the Works? The Swedish Experience, in La responsabilité pénale des personnes morales en Europe—Corporate Criminal Liability in Europe 298–302 (Stanislas Adam, Nathalie Colette-Basecqz & Marc Nihoul eds., 2008); Valenzano, Anna Salvina, Main Aspects of Corporate Liability “Ex Crimine” in Northern European Countries: Denmark, Sweden and Finland, in Corporate Criminal Liability and Compliance Programs. Vol. 1: Liability ‘Ex Crimine’ of Legal Entities in Member States 469–74 (Antonio Fiorella ed., 2012).Google Scholar

⁴¹ Case C-68/88, Commission v. Hellenic Republic, 1989 E.C.R. 339, para. 24.Google Scholar

⁴² Market Abuse Directive, supra note 13, recital (18).Google Scholar

⁴³ PIF Directive, supra note 16, recital (15).Google Scholar

⁴⁴ TEU Art. 4(1).Google Scholar

⁴⁵ Towards an EU Criminal Policy: Ensuring the Effective Implementation of EU Policies Through Criminal Law, COM (2011) 573 final (Sept. 20, 2011).Google Scholar

⁴⁶ For a critical assessment of the EU's effectiveness approach in the field of criminal law see Franssen, supra note 29.Google Scholar

⁴⁷ Towards an EU Criminal Policy: Ensuring the Effective Implementation of EU Policies Through Criminal Law, COM (2011) 573 final (20 September 2011), at 5.Google Scholar

⁴⁸ Id. at 11.Google Scholar

⁴⁹ Id. Google Scholar

⁵⁰ Id. Google Scholar

⁵¹ The term “retributive denunciation” refers to a specific account of retributivism, according to which punishment is “the emphatic denunciation by the community of a crime.” Cottingham, John, Varieties of Retribution, 29 Phil.Q. 238, 245 (1979). By giving the offender what he deserves, punishment expresses social and moral disapproval of his culpable behavior. See, e.g., Henham, Ralph, Punishment and Process in International Criminal Trials 139 (2005). This theory highlights the symbolic function of criminal punishment, which distinguishes it from other types of sanctions. Unlike other retributivist theories, this interpretation of retributivism can, in this Article's view, be easily applied to corporations too—their punishment being society's way to express strong public disapproval of the corporation's behavior, whether this behavior is really immoral or simply wrong as infringing essential social norms. For a further analysis, see Franssen, supra note 12, at 32–3, 254–60.Google Scholar

⁵² Towards an EU Criminal Policy: Ensuring the Effective Implementation of EU Policies Through Criminal Law, COM (2011) 573 final (20 September 2011), at 7. See also, e.g., Asp, Petter, The Importance of the Principles of Subsidiarity and Coherence in the Development of EU Criminal Law, 1 Eur. Crim. L. Rev. 44 (2011); Herlin-Karnell, Ester, What Principles Drive (or Should Drive) European Criminal Law, 11 German L.J. 1115 (2011); Kaiafa-Gbandi, Maria, The Importance of Core Principles of Substantive Criminal Law for a European Criminal Policy Respecting Fundamental Rights and the Rule of Law, 1 Eur. Crim. L. Rev. 7 (2011); Groenhuijsen, Marc S. & Ouwerkerk, Jannemieke W., Ultima ratio en criteria voor strafbaarstelling in Europees perspectief, in Roosachtig strafrecht: liber amicorum Theo de Roos 249 (Marc S. Groenhuijsen, Tijs Kooijmans & Jannemieke Ouwerkerk eds., 2013); Suominen, Annika, The Sensitive Relationship Between the Different Means of Legal Interpretation: Mutual Recognition and Approximation, in The Needed Balances in EU Criminal Law. Past, Present and Future 176–81 (Chloé Brière & Anne Weyembergh eds., 2018).Google Scholar

⁵³ Commission Green Paper on the Approximation, Mutual Recognition and Enforcement of Criminal Sanctions in the European Union, COM (2004) 334 final (Apr. 30, 2004) [hereinafter Green Paper].Google Scholar

⁵⁴ Id. at 9.Google Scholar

⁵⁵ Id. Google Scholar

⁵⁶ Id. at 9–10, 47.Google Scholar

⁵⁷ Cf. id. 47 (“It would be interesting to consider whether this is a purely academic hypothesis or corresponds to reality in the event, for example, of financial, business or computer crime.”). That being said, for some corporations it may be easier to relocate and organize their activities in another country than for others, depending on the type of activities and the accessibility of the market.Google Scholar

⁵⁸ Id. at 10.Google Scholar

⁵⁹ Id. Google Scholar

⁶⁰ Id. Google Scholar

⁶¹ Id. at 47.Google Scholar

⁶² Although the definition of the term “economic crime” varies, there is growing consensus on the inclusion of environmental crime. See Ligeti & Franssen, supra note 1, at 3–4. Moving beyond the terminological discussion, environmental crime undeniably has an important impact on the economy's sustainability. See, e.g., Andrew Farmer, Michael Faure & Grazia Maria Vagliasindi, Environmental Crime in Europe: State of Affairs and Future Perspectives, in Environmental Crime in Europe 320, 330 (Andrew Farmer, Michael Faure & Grazia Maria Vagliasindi eds., 2017).Google Scholar

⁶³ Environmental Crime Directive, supra note 15, recital (3) (emphasis added).Google Scholar

⁶⁴ Ship-Source Pollution Directive, supra note 23, recital (3) (emphasis added).Google Scholar

⁶⁵ Euro Counterfeiting Directive, supra note 15, recitals (2), (15).Google Scholar

⁶⁶ See, e.g., id. at recital (10).Google Scholar

⁶⁷ See, e.g., id. at recital (17).Google Scholar

⁶⁸ For a further analysis of the justification for criminalizing market abuse see Franssen, supra note 46, at 95–8.Google Scholar

⁶⁹ Market Abuse Directive, supra note 13, recital (1).Google Scholar

⁷⁰ Id. at recital (5).Google Scholar

⁷¹ Id. at recital (6) (emphasis added).Google Scholar

⁷² Commission Proposal for a Directive of the European Parliament and of the Council on the Fight Against Fraud to the Union's Financial Interests by Means of Criminal Law, at 7, COM (2012) 363 final (July 11, 2012) (emphasis added).Google Scholar

⁷³ PIF Directive, supra note 16, recitals (15), (18), and (28).Google Scholar

⁷⁴ Cf. Harding, Christopher, Tasks for Criminology in the Field of EU Criminal Law and Crime Policy, in EU Criminal Law and Policy Values, Principles and Methods 122 (Joanna Beata Banach-Gutierrez & Christopher Harding eds., 2017) (identifying “the imposition of criminal responsibility on corporate persons” as one of the “key questions of the present moment” at the level of EU criminal law).Google Scholar

⁷⁵ Wells, Celia, Corporate Criminal Liability in the United Kingdom. Much Ado About Nothing?, in La responsabilité pénale des personnes morales en Europe—Corporate Criminal Liability in Europe 286 (Stanislas Adam, Nathalie Colette-Basecqz & Marc Nihoul eds., 2008).Google Scholar

⁷⁶ See, e.g., Villa, John K., Corporate Criminal Liability: When a Corporation is Liable for Criminal Conduct By an Employee, 2 Corporate Counsel Guidelines § 5:5 (2011); Hyewon, Han & Wagner, Nelson, Corporate Criminal Liability, 44 Am. Crim. L. Rev. 337, 339–47 (2007); Harry First, Business Crime: Cases and Materials 167 (1990).Google Scholar

⁷⁷ For a very long time, the Spanish legislator refused to create criminal liability for corporations. Yet this fundamentally changed with the Organic law 5/210 of 22 June 2010. For a concise analysis of the new legal regime see, e.g., Winter, Lorena Bachmaier & del Moral García, Antonio, Spain, in International Encyclopaedia of Laws: Criminal Law paras 256–61 (Frank Verbruggen, Roger Blanpain & Michele Colucci eds., 2012).Google Scholar

⁷⁸ Nevertheless, the vicarious nature of the French system of corporate criminal liability seems less certain than it may appear at first sight. Some argue the French system is in practice much closer to an autonomous or organizational model. In this respect, see Tricot, Juliette, Corporate Criminal Liability in France, in Corporate Criminal Liability and Compliance Program 135 (Antonio Fiorella & Alfonso Maria Stile eds., 2011).Google Scholar

⁷⁹ In England and Wales, the identification test is the “default position of the courts … when no [other] test of corporate liability is provided for in a statute.” Other tests of corporate criminal liability can, however, be found in specific statutes such as the Corporate Manslaughter and Corporate Homicide Act and the Bribery Act. For a clear and critical analysis see Gobert, James, Corporate Criminal Liability—What Is It? How Does It Work in the UK?, in Corporate Criminal Liability and Compliance Programs 222–29, and in particular 224 for the above quote (Antonio Fiorella & Alfonso Maria Stile eds., 2012).Google Scholar

⁸⁰ Cf. Vermeulen, supra note 3, at 11.Google Scholar

⁸¹ See Franssen, Vanessa, Daderschap en toerekening bij rechtspersonen, Nullum Crimen 227, 232, 241 (2009); Raf Verstraeten & Vanessa Franssen, Collective Entities as Subjects of Criminal Law. The Case of Belgium and the Netherlands, in Corporate Criminal Liability and Compliance Programs 254 (Antonio Fiorella & Alfonso Maria Stile eds., 2012).Google Scholar

⁸² For a critical analysis of the identification theory under English law and the problems it causes in practice see Gobert, James & Punch, Maurice, Rethinking Corporate Crime 62–69 (2003). See also Gobert, supra note 79, at 224–229. For the strong similarities between the identification theory and the French system of indirect liability see Conte, Philippe & du Chambon, Patrick Maistre, Droit pénal général 214–15 (2004).Google Scholar

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⁸⁴ For an in-depth analysis of accomplice liability and functional perpetratorship see, e.g., Vanheule, Jan, Strafbare deelneming 905 (2010).Google Scholar

⁸⁵ It should be noted, though, that some legal systems, like the Belgian one, tend to apply a very broad notion of perpetratorship, including that of functional perpetrators, without a clear legal basis. For a further analysis, see Franssen, supra note 81, at 228–29. See also Hennau, Christiane & Verhaegen, Jacques, Droit Pénal Général 268–74 (2003).Google Scholar

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⁸⁷ Id. at 1440 and accompanying references.Google Scholar

⁸⁸ Id. Google Scholar

⁸⁹ Id. at 1441 (giving the example of United States v. Hilton Hotels Corp., in which the corporation was convicted of antitrust violations committed by a purchasing agent contrary to explicit corporate policy). See also Weissmann, Andrew, A New Approach to Corporate Criminal Liability, 44 Am. Crim. L. Rev. 1319 (2007).Google Scholar

⁹⁰ Buell, Samuel W., The Blaming Function of Entity Criminal Liability, 81 Ind. L.J. 473, 576 (2006). See also, e.g., Arlen, Jennifer, The Potential Perverse Effects of Corporate Criminal Liability, 23 J. Legal Stud. 833, 838 (1994).Google Scholar

⁹¹ Id. at 526.Google Scholar

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⁹³ See, e.g., Drew, Kendel & Clark, Kyle A., Corporate Criminal Liability, 42 Am. Crim. L. Rev. 277, 287 (2005). For an analysis and case-law based assessment of the US Sentencing Guidelines’ emphasis on compliance programs see, e.g., Murphy, Diana E., The Federal Sentencing Guidelines for Organizations: A Decade of Promoting Compliance and Ethics, 87 Iowa L. Rev. 697 (2002).Google Scholar

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⁹⁵ Id. at 78. See also Laufer, William S., The Missing Account of Progressive Corporate Criminal Law, 14 N.Y.U. J.L. & Bus. 71, 83, 136–37 (2017) (proposing the term “constructive corporate liability”).Google Scholar

⁹⁶ Market Abuse Regulation, supra note 13, recital (30).Google Scholar

⁹⁷ To complete the picture, it is noteworthy that Article 9(1) of the Market Abuse Regulation defines under what circumstances the possession of inside information by a legal person should not be regarded as insider dealing or unlawful disclosure of inside information on the part of the legal person and thus constitutes legitimate behavior.Google Scholar

⁹⁸ See, e.g., PIF Directive, supra note 16, art. 9 (emphasis added).Google Scholar

⁹⁹ For a more in-depth analysis see Franssen supra note 12, at 260–70 and the accompanying references.Google Scholar

¹⁰⁰ See PIF Directive, supra note 16, art. 9(b).Google Scholar

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¹⁰² See, e.g., Case C-68/88, Commission v. Hellenic Republic, 1989 E.C.R. 339, paras 24–7. In fact, in this case, the problem was more deeply rooted than the mere levels of fines provided for by law and due to complete lack of enforcement. Greece had failed to fulfill its obligations under EU law “by omitting to initiate all the criminal or disciplinary proceedings provided for by national law against the perpetrators of the fraud and all those who collaborated in the commission and concealment of it.” Id. para. 22.Google Scholar

¹⁰³ Case C-262/99, Louloudakis v. Greece, 2001 E.C.R. I-5547, para. 69.Google Scholar

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¹⁰⁵ See Council Regulation 1/2003 of 16 Dec. 2002 on the Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty art. 23(2), (3), 2003 O.J. (L 1) 1 (EC); Guidelines on the Method of Setting Fines Imposed Pursuant to Article 23(2) (a) of Regulation 1/2003, 2006 O.J. (C 210), 2.Google Scholar

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¹⁰⁷ For a further analysis of whether cartel fines qualify as criminal sanctions, see Franssen supra note 12, at 307–14.Google Scholar

¹⁰⁸ For a more detailed analysis of the Commission's Proposal for a Council Framework Decision to Strengthen the Criminal-Law Framework for the Enforcement of the Law Against Ship-Source Pollution, COM (2003) 227 final (May 2, 2003), see Franssen supra note 12, at 220–22.Google Scholar

¹⁰⁹ Directive 2014/42/EU, of the European Parliament and of the Council of 3 Apr. 2014 on the Freezing and Confiscation of Instrumentalities and Proceeds of Crime in the European Union, 2014 O.J. (L 127) 39 [hereinafter Freezing and Confiscation Directive].Google Scholar

¹¹⁰ Id. art. 4(1), (2). For a further analysis, see, e.g., Ligeti, Katalin & Simonato, Michele, Asset Recovery in the EU: Towards a Comprehensive Enforcement Model Beyond Confiscation? An Introduction, in Chasing Criminal Money. Challenges and Perspectives on Asset Recovery in the EU 7 (Katalin Ligeti & Michele Simonato eds., 2017).Google Scholar

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¹¹³ See, e.g., PIF Directive, supra note 16, art. 10. This provision does not require a criminal conviction, but simply refers to “instrumentalities and proceeds from the criminal offences” on which are covered by the Directive. Therefore, in this author's view, this could include the hypothesis of a legal person being held administratively liable for one of those offenses.Google Scholar

¹¹⁴ Ligeti & Simonato, supra note 110, at 8–10. For a more in-depth analysis of the concept of non-conviction based confiscation and civil forfeiture, see, e.g., Panzavolta, Michele, Confiscation and the Concept of Punishment: Can There be a Confiscation Without a Conviction?, in Chasing Criminal Money. Challenges and Perspectives on Asset Recovery in the EU 25. (Katalin Ligeti & Michele Simonato eds., 2017); King, Colin, Civil Forfeiture in Ireland: Two Decades of the Proceeds of Crime Act and the Criminal Assets Bureau, in Chasing Criminal Money. Challenges and Perspectives on Asset Recovery in the EU 77. (Katalin Ligeti & Michele Simonato eds., 2017).Google Scholar

¹¹⁵ Market Abuse Regulation, supra note 13, art. 30(2)(b).Google Scholar

¹¹⁶ Market Abuse Directive, supra note 13, recital (24) (emphasis added). In fact, this idea was already present in the former Market Abuse Directive of 2003, which did not include an obligation to criminalize certain forms of market abuse. Instead, it required that “sanctions should be sufficiently dissuasive and proportionate to the gravity of the infringement and to the gains realised ….” Recital (38) of the Preamble of Directive 2003/6/EC of 28 Jan. 2003 on Insider Dealing and Market Manipulation, 2003 O.J. (L 96) 16. Based on this recital, the CJEU ruled that the “gains realised from insider dealing may constitute a relevant element for the purposes of determining a sanction which is effective, proportionate and dissuasive.” See Case C-45/08, Spector v. CBFA, 2009 E.C.R. I-12073, para. 73.Google Scholar

¹¹⁷ Admittedly, other legal instruments requiring administrative sanctions do not always require disgorgement of profits as a separate sanction either. For instance, under the Fourth Money Laundering Directive, Member States should take into account, when determining the type and level of administrative sanctions and measures, “the benefit derived from the breach by the natural or legal person held responsible, insofar as it can be determined.” The 4th Money Laundering Directive, supra note 14, art. 60(4)(d). This approach largely mirrors the European Commission's Guidelines on fines applicable to cartel offenses. According to Point 31 of the 2006 Guidelines on fines, the gains obtained by undertaking the commission of a cartel offense should be taken into account when the Commission determines the fine, provided that “it is possible to estimate that amount,” and may lead to an increase of the fine in order to ensure deterrence.Google Scholar

¹¹⁸ See Franssen, Vanessa & Van Dyck, Silvia, Holsters op maat voor de bestraffing van ondernemingen? Eerst goed mikken, dan pas schieten, in De wet voorbij. Liber amicorum Luc Huybrechts 525 (Filiep Deruyck et al. eds., 2010).Google Scholar

¹¹⁹ Henning, Peter J., Corporate Criminal Liability and the Potential for Rehabilitation, 46 Am. Crim. L. Rev. 1417, 1429 (2009).Google Scholar

¹²⁰ Of course, there will also be situations in which the corporation's financial resources are not sufficient to cover restoration and compensation, for instance, because the corporation is relatively small or because its capital is intentionally kept low by its shareholders, or due to the enormous size of the harm caused by the offense.Google Scholar

¹²¹ See, e.g., Fisse, Brent & Braithwaite, John, The Impact of Publicity on Corporate Offenders (1983); Karpoff, Jonathan M. & Lott, John R., Jr., The Reputational Penalty Firms Bear from Committing Criminal Fraud, 36 J.L. & Econ. 757 (1993); Note, Shame, Stigma, and Crime: Evaluating the Efficacy of Shaming Sanctions in Criminal Law, 116 Harv. L. Rev. 2186 (2002–2003); Karpoff, Jonathan M., Lott, John R. Jr. & Wehrly, Eric W., The Reputational Penalties for Environmental Violations: Empirical Evidence, 68 J.L. & Econ. 653 (2005); Kahan, Dan M., What Do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591 (1996).Google Scholar

¹²² Market Abuse Regulation, supra note 13, recital (73).Google Scholar

¹²³ Market Abuse Directive, supra note 13, recital (18).Google Scholar

¹²⁴ As some rightfully point out, it takes a good reputation to lose one. See, e.g., Shame, Stigma, and Crime: Evaluating the Efficacy of Shaming Sanctions in Criminal Law, supra note 121, at 2190.Google Scholar

¹²⁵ For an extensive analysis, see Franssen, supra note 12, at 276–280 and 393–394.Google Scholar