Editorial Issue 1/2024 31 July 2024 (updated 5 days, 19 hours ago)
Latest editorials All articles
Editorial Issue 4/2023 28 March 2024 (updated 5 months, 1 week ago)
Editorial Issue 3/2023 11 December 2023 (updated 6 months, 3 weeks ago)
Editorial Issue 2/2023 11 October 2023 (updated 9 months, 3 weeks ago)
Articles
Combating Corruption in EU Legislation
An Analysis of Some Aspects of the Commission Proposal for the EU Anti-corruption Directive
The anti-corruption package presented by the European Commission in May 2023 reaffirms the priority given to combating corruption crimes in the EU. In response to the current disharmony and fragmentation of national legal systems, the proposal for a new EU Directive on combating corruption calls for greater alignment at the European level. By applying the EU’s “non-exclusive” competence in criminal matters, serious corruption offenses will be countered on a shared basis, also in view of their potential cross-border dimension. The authors argue, however, that there are provisions in the proposed directive that raise serious doubts as to the adherence to the principle of proportionality, the tendency to largely equalize responses to corruption in the public and private sectors, and the preservation of basic principles of criminal law, such as legality and the degree of certainty required for offences.
Read moreThe Amendment of the PIF Directive by the New Proposal for a Directive on Combating Corruption
This article outlines the targeted amendment of the PIF Directive proposed in the Commission’s legislative initiative for a Directive on Combating Corruption, which was tabled in May 2023. The targeted amendment seeks to align the PIF Directive with the standards set out in said anti-corruption proposal. The areas of alignment are sanctions for natural and legal persons, aggravating and mitigating circumstances, and limitation periods. The amendment is designed to ensure respect for the principle of equivalence and effective protection of the EU’s financial interests, as laid down in Art. 325 of the Treaty on the Functioning of the European Union.
Read moreWeaknesses in Spanish Jurisprudence on the Criminal Liability of Legal Entities
Non-Imputability of Certain Legal Entities and Lack of Methodology When Applying the Transfer of Criminal Liability between Corporations
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
The Commission Proposal for a Directive on Combating Corruption
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.
Read morePreuves électroniques : état de la situation en Suisse face à l’avancée majeure du droit européen
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.
Read moreMutual Admissibility of Evidence and Electronic Evidence in the EU
A New Try for European Minimum Rules in Criminal Proceedings?
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.
Read more