The reform of the Spanish Criminal Code operated in 2015 included the possibility that legal persons could be exempt from criminal responsibility if they had provided a criminal compliance program in accordance with the conditions and requirements set forth in articles 31 bis 2 to 5 of the Spanish Criminal Code. The main discussions about these control mechanisms have been raised at the substantive level, however, we believe that the procedural connotations presented by the compliances are, if possible, of greater importance, then, after all, the main aspect is how to be accredited in a criminal process and to whom this burden corresponds. However, this is not the only procedural aspect posed by the organization and management models, hence its role in the dismissal of the case, when adopting precautionary measures, as well as in the case of the plea bargain.
The paper focuses on ‘double-track sanctioning systems’ on legal persons from a European ne bis in idem perspective. In addition to highlighting the peculiarities of the said punitive models on market abuse and tax offences, some reflections are devoted to the ‘connection test’ at European level.
The entry of tax offenses into Legislative Decree 231/2001 as a result of Law 157/2019, now followed by Legislative Decree 75/2020, appears completely physiological, in light of the structure and the rationale of corporate liability and furthermore it constitutes a late response to that substantive tendency which has hitherto fueled interpretative distortions in malam partem. Overall, the system seems to offer already possible remedies, in terms of the sanctioning proportion, to potential collisions with the ne bis in idem declined according to the parameter of the idem factum and on the basis of the jurisprudential criteria of substantial and procedural connection, with particular regard the regulation of the payment of the tax debt. Nonetheless, the legislative intervention appears at times incomplete or ambiguous but, at the same time, it lends itself to initiating a decisive case law revirement in terms of delegation of functions
Law Decree no. 124/2019, later confirmed by Law no. 157/2019, the lawmaker modified significantly tax criminal offences, providing also for the applicability of the so-called ‘enlarged’ confiscation under art. 240-bis of the Italian Criminal Code and inserting certain tax crimes in the list of offences that trigger corporate liability. This paper aims to highlight – on one hand – the (re)organizational burdens on companies, in order to update their compliance models, and – on the other hand – the relevant systemic inconsistencies in respect to the relationship between individual and corporate liability.