Europe handcuffed by current corporate liability laws; is change coming?

In recent months, European countries have begun to question whether their laws around corporate liability and accountability need to be reformed. However, results have been mixed, and change may not be as rapid as first thought.

The law around corporate liability is considered one of the biggest obstacles to tackling economic crimes in the United Kingdom. Although companies can be convicted of bribery and tax evasion under a “failure to prevent” offense under the Bribery Act 2010 and Criminal Finances Act 2017, it is far harder to secure corporate convictions in other financial crimes, including fraud, because prosecutors must identify a “directing mind”—usually a senior executive—to hold it criminally liable.

In late November, Swiss voters rejected a proposal that would have made businesses liable for human rights or environmental violations they caused around the world. Even the Swiss government came out against the plan, worried it would make Swiss companies liable for the actions of independent suppliers. Another proposal to ban public financing of arms manufacturers was also rejected.

The proposed law, known as the Responsible Business Initiative, sought to allow victims of alleged human rights violations or environmental damage to sue Swiss companies in Swiss courts. The companies would have had to prove they had taken all necessary measures to prevent any harm.

Instead, a more moderate version, which will force companies to report on and strengthen scrutiny of their operations and suppliers overseas, particularly over issues like conflict minerals and child labor, will come into force this year. However, like the U.K.’s Modern Slavery Act, there is no criminal sanction attached.

Germany and France are currently debating whether their laws need to be overhauled, too. In Germany, for example, corporations cannot be charged in criminal proceedings. As a result, there has been strong criticism regarding the country’s weak sanctions in the recent cases of bribery involving Siemens and the ongoing Volkswagen “Dieselgate” scandal.

Meanwhile, a recent judgment made by the Cour de cassation—France’s highest civil/commercial court—established for the first time that a company that merges with another company can be held responsible for criminal acts committed by the pre-merger entity, so long as the merger was completed with the goal of evading criminal liability. The ruling signifies not only a greater willingness to hold companies accountable for wrongdoing, but also a shift away from the need to identify individual responsibility to secure a conviction.

The United Kingdom—under pressure because of its own dismal enforcement record against large companies—is also looking at ways of improving corporate accountability. On Nov. 3, the U.K. government asked the Law Commission, the body responsible for legal reform, to draft proposals on how the laws around corporate criminal liability could be changed.

It is not a new discussion. As far back as 2012, then-Serious Fraud Office Director David Green complained of the inadequacy of the U.K.’s legal framework in tackling corporate fraud. His successor—current SFO director Lisa Osofsky—has also called for reform to both the law and the legal process around investigations after inheriting multiple cases that have failed to result in any successful prosecutions.

In recent years attempts to push for change have repeatedly fizzled out. Former U.K. Justice Secretary Dominic Raab announced plans to overhaul the legislation in 2016: nothing happened. The following year the Ministry of Justice launched its “Call for Evidence on Corporate Liability for Economic Crime,” which produced no clear consensus. The government now hopes the Law Commission can do better. It is supposed to publish its list of options late this year.

The law around corporate liability is considered one of the biggest obstacles to tackling economic crimes in the United Kingdom. Although companies can be convicted of bribery and tax evasion under a “failure to prevent” offense under the Bribery Act 2010 and Criminal Finances Act 2017, it is far harder to secure corporate convictions in other financial crimes, including fraud, because prosecutors must identify a “directing mind”—usually a senior executive—to hold it criminally liable.

Francesca Titus, white collar crime partner at law firm McGuireWoods, believes too much emphasis is put on the “outdated” identification principle, which comes from a time when companies were smaller (even family run) and operated in a relatively small geographical area, thereby making it relatively simple to identify the senior person in charge and at fault. “Now that criminal activity is often cross-border and involves multinationals with complex structures, the identification principle is not fit for modern corporate practices,” she says.

“There appears to be a consensus that existing U.K. legislation—or rather the basis for it—is not strong enough,” says Simon Thomas, partner at law firm Baker & Partners. “The Tesco case confirmed that the persons who can amount to the ‘directing mind and will’ are limited to those at the very top of companies, and the recent Barclays prosecution showed even senior executives’ involvement may not be enough to secure corporate liability. The SFO has openly admitted unless the legal landscape changes, it will be forced to focus on misconduct committed by small- and medium-sized enterprises.”

Some believe pursuing corporate and individual convictions may not result in the kind of justice the public wants or foster the kind of change in compliance and corporate governance regulators hope for. “Convicting a company only goes so far—the most effective measures tend to be financial,” says Abdulali Jiwaji, partner at law firm Signature Litigation. “Where disgorgement of profits hits shareholders’ pockets, activist shareholders will push for improvements in corporate governance and change in management.”