Systems theory has been criticized in literature on the analysis of organizations and groups of people. Its weaknesses include the lack of ontological support and the absence of evidence demonstrating the validity of its premises. Since Spain incorporated the criminal liability of legal entities into its criminal code as a means of combating corporate crime and corruption, however, the Spanish Supreme Court has been resorting to systems theory to determine when a legal person should be punished.
This article analyzes the serious practical problems that this approach entails, especially when certain complex legal-criminal issues are being dealt with. In addition to the conflicts that arise concerning the principle of legality, systems theory lacks a solid methodology to resolve two questions that emerge in corporate reality: 1) determination of the non-liability of certain legal entities, and 2) clarification of the (in)appropriateness of the criminal punishment of legal persons resulting from and arising … Read more

This article sketches the legal background and institutional history that has led the EU Commission to propose a Directive on Combating Corruption. It outlines the role the future directive shall play in the context of other EU tools, including those belonging to the 2023 anti-corruption package. The article looks at the objectives of the proposed anti-corruption directive, which are threefold: (1) consolidating the existing anti-corruption rules into one single legal act; (2) building up an effective integrity system through awareness-raising campaigns as well as research and education programmes in order to mitigate incentives for corruption; (3) facilitating the effective investigation and prosecution of corruption cases by ensuring sufficient resources as regards staff and dedicated investigative tools. Lastly, the article explains the potential future impact of the envisaged directive on the national anti-corruption frameworks, both in terms of repression and prevention.

This contribution is a comparison of the solution adopted in the European Union (EU) concerning cross-border access to electronic evidence and the Swiss law applicable in this area, based on a number of key features of the European system. It gives rise to a reflection on the prospects for relations between the European Union and Switzerland, in particular the opportunity for Switzerland to coordinate its rules with those of European law.

This article seeks to provide arguments in support of legislative action on mutual admissibility of evidence and electronic evidence in criminal proceedings at the EU level. To this end, it will first describe the status quo and then the main features of a corresponding proposal recently tabled by the European Law Institute. In the light of this proposal, the author explains why Member States should reconsider their traditional stance against any EU initiative on evidentiary rules in criminal proceedings. Ultimately, especially in this new digital era, the best solution to prevent the inadmissibility of cross-border evidence is to adopt a set of minimum rules.

The intense debate over the past few years on access to data for criminal investigations has led to the adoption of the E-evidence package. Yet, electronic evidence is no less crucial for punitive administrative proceedings. One administrative investigation authority that could benefit from more extensive access to electronic evidence is OLAF, which, at this point, does not seem to have the power to request data from service providers. Such powers could be essential, however, for the detection and investigation of fraud or corruption. This article argues the need for a general and thorough reflection on access to electronic evidence from Internet Service Providers (ISPs) in administrative punitive proceedings. It also discusses the transfer of this type of evidence between administrative and criminal proceedings (in both directions) in order to more specifically justify an extension of OLAF’s powers to be able to request such evidence.

Digital technologies have advanced more rapidly than any other innovation in modern history and they permeate our daily lives. The benefits to our societies and economies are numerous, but the risks of cyberattacks and crime have also increased. The EU is committed to protecting its citizens against these risks in the Area of Freedom, Security and Justice. Prevention, detection, and enforcement form key components of the EU’s security architecture. Making use of the benefits of digital technologies and ensuring a high level of security across the Union were driving forces behind the latest building block in this architecture: the e-evidence package. Recently adopted, it aims to ensure that judicial and law enforcement authorities can obtain electronic evidence across the EU and beyond in a swift and legally sound manner for the purpose of investigations and prosecutions in criminal cases.
This article provides an introduction to the two new EU instruments: … Read more