Publications

I. General Items

1. Societas delinquere non potest

According to art. 7 of the Greek Constitution and art. 1 of the Greek Criminal Code no criminal sanction may be imposed without a previous law providing for the elements of the action. The criminal sentence presupposes therefore an action, i.e. the conscious activity of a human being. On the other hand, the Greek criminal law is based on the culpability principle, which also presupposes an acting human being. On the basis of these two principles, Greek law therefore does not recognize the possibility of criminal sanctions against legal entities. It follows, on the contrary, the old axiom “societas delinquere non potest” (Ulpian). Legal entities are exposed to administrative sanctions instead. 

Nevertheless, the administrative sanctions provided for against legal entities are sometimes so severe, that they are in reality criminal sentences, under the mantle of administrative sanctions. Thus, the exclusion of the criminal corporate liability by Greek criminal law in these cases is just formal.

Civil responsibility of legal entities appears, on the contrary, as sanction only exceptionally. According to the environment protection law, e.g., if the pollution or degradation of the environment is due to the activity of a legal entity, the court declares tat this latter has in toto the civil responsibility for the payment of the pecuniary penalty imposed to the perpetrator of the offence against the environment (Art. 28 para 4 of law 1650/1986).

2. Vicarious liability

Although the principle “nulla poena sine actu” has a constitutional rang, provisions recognizing the criminal responsibility of a person for other people’s actions are not missing in Greek law, even if the accused has not acted at all. In these cases Greek law introduces also a kind of vicarious liability, which is not in accordance with the Constitution. With regard to these provisions a narrow interpretation is therefore required: If the responsibility can be ascribed to an act of the accused, for example the omission of the c.e.o. to wield control over his subordinates, the criminal sentencing is not unconstitutional, since there is an act. But if an act of the sentenced person is missing at all, then his punishment on the basis of vicarious liability violates the Constitution (art. 7 para. 1). 

S. Mylonopoulos, Criminal Law, The General Part, Bd. I 2007, 113.

A kind of vicarious liability is also forseen in the greek Criminal Code with regard to petty offences (Übertretungen). According to art. 411 of the GrCC (“responsibility for petty offences of others”) factory owners or other heads of an industry or a handicraft, contractors and merchants are responsible for petty offences perpetrated by their subordinates or representatives, if these offences are relative to the exercise of their job, under condition they know and can prevent them or if they have neglected the control that they are obliged to exercise.

3. Objective liability

A paradigm of latent and implicit objective liability is introduced by law 2523/1997, concerning the repression of tax evasion. According to art. 20 of this law, in case of tax evasion perpetrated by a legal person, as authors (principals) are deemed to be the president of the board of directors, the manager etc., under condition that they had knowledge or on the basis of their quality and in view of the circumstances is obvious that they had knowledge of the acts or omissions of their subordinates which caused the tax evasion.

4. Some examples

According to the eighth art. of law 2803/2000 (“Ratification of the convention concerning the protection of the financial interests of the European communities”) under the title: “administrative sanctions”, if the enterprise has had any benefit deriving from the criminal offences provided for by this law and this benefit can be attributed to the responsibility of any person who has acted either on his behalf (individually) or as member of any organ of this enterprise, the following sanctions are imposed:

• Administrative fine not exceeding the triple of the benefit’s value or
• Temporary or permanent prohibition of the trade activity or
• Temporary or permanent exclusion of the enterprise from public benefits or assistance.

 

The above temporary incapacitations may last from one month to two years. 

According to the seventh art. of the same law 2803/2000 (“criminal responsibility of executives of an enterprise”), if a person who really exercises duties of the director or has the power of making decisions or wield control over an enterprise, on the benefit of which a criminal offence against the financial interests of the European communities has been committed, has not prevented the perpetration of this offence by violating his duties of surveillance or control, shall be punished by imprisonment i.e. a term from 10 days to 5 years, if his omission is not punished more severely by another provision.

It is worth mentioning that the jurisdiction of the Greek courts in this case is extended over offences committed abroad, even if they are not punishable in the country where they have been committed.

Similar regulations are contained in law 3560/2007 (“Ratification of the convention of Strasburg on corruption and the additional protocol. According to art. Fifth of this law (title: “responsibility of legal persons”), if the offences of bribery, trading of influence or money laundering has been committed on the benefit of a legal entity exercising a business activity by any person (author, instigator or accomplice) who has acted either individually or as member of an organ of this legal entity having a directing position in this legal person on the basis of a representative power , the 

the following sanctions are imposed:

• Administrative fine not exceeding the triple of the benefit’s value which has been achieved or even sought or
• Temporary or (in case of recidivism) permanent prohibition of the trade activity or
• Temporary or permanent exclusion from public benefits or assistance. The same sanctions are imposed to the legal person if the missing control or surveillance from the part of a natural person has enabled the perpetration of the offences of bribery and corruption.

 

It is worth mentioning that in this case the above administrative sanctions may be imposed even if the offences linked to the benefit of the legal entity have been committed also in another member state of the convention (Art. eight of law 3666/2008). So the sanctioning power of Greek authorities acquires a transnational character.

II. Structural questions

1. As a rule the administrative (or, sometimes civil) responsibility of legal entities covers legal persons of the public and private sector. In certain cases, however it extends over other associations, such as cooperatives. The cooperative is sanctioned for example according to law 2741/1999 concerning the illegal production and trading of foods and provisions.

2. Administrative, civil or (sometimes) “crypto penal” sanctions against legal entities are provided for as a rule for economic crimes, such as tax evasion (law 2523/1997), insider trading and manipulation of the stock market (law 3340/2005), bribery of officials of the European communities (law 2802/2000), or of foreign public officials (law 2656/1998), detriment to the financial interests of the European communities (law 2803/2000), etc. Sometimes they extend, however, also to other offences, such as offences against the environment (law 1650/1986), violations of the data protection law (law 2472/1997), the provisions concerning the consumer’s protection (law 3587/2007), the protection of the free competition (law 3373/2005) etc.

3. In some cases the imposition of the administrative sanctions presupposes the existence of a benefit (implicitly of financial nature) for the legal entity, under condition: a) that it derives from the criminal offence, and b) that it can be attributed to the behavior of an official of the legal entity.

4. According to the wording of the relevant provisions, any person acting on behalf of the legal entity can found the latter’s administrative responsibility. As a rule, every particular provisions describes in detail the circle of such persons, which is usually very ample and covers every person having a decision making power. Thus art. 28 of law 1650/1986 concerning the environment protection provides for the following: 

The presidents of boards of directors, counsel executive officers, directing managers of share companies, managers of limited companies, the presidents of cooperatives and any person responsible for the management or direction of any legal entity of the public or the private sector bear the legal responsibility to take care that the provisions concerning the environment protection are not violated . These persons shall be punished for every action or omission of the legal entity causing pollution or degradation of the environment or violating provisions pertaining to the protection of the environment.

5. Greek law does not require the conviction of a natural person as a condition for administrative corporate liability, but as a rule it presupposes the perpetration of a criminal offence, i.e. an action described in the law as an offence (“tatbestandsmässig”) which is not justified. The administrative sanction is therefore not impeded if the perpetrator of the criminal offence cannot be punished on the ground of mental illness, error facti, lapse of time, etc.

III. Sanctions

Administrative sanctions imposed against legal entities are principally the administrative fine, which differs according to the law providing it. Most of the specific provisions fix the maximum and minimum of the fine (e.g. art. 5 para. 7 law 2741/1999 on food control: fine from 500.000 drs up to 50 mio drs, i.e 1.500 to 150.000 ), while others give regulatory guidelines for the formation of the fine (cf. e.g. art. 5 para. 8 of law 2741/1999: anyone who produces or disposes to the consumers foods in violation of the regulations provided for by the law, a fine is imposed, according to the growth of the enterprise, the number of the employees, the conditions of the perpetration of the violation and the impact of the violation on the consumers). . In any case, the height of the fine is basically ruled by the proportionality principle, which is also explicitly recognized by the Greek Constitution (art. 26 para 1 Const.). It is worth mentioning that in case of violation of the stock market regulations (e. g. insider trading or manipulation of the market) , the administrative fine can reach the sum of 2 mio euro, which can be triple in case of recidivisme (art. 23 para. 1 of law 3340/2005).

Other administrative sanctions against legal entities are:

- the warning that a fine will be imposed (s. e.g. law 2251/1994, art. 13a para. 3).
- the written reprimand. If the regulations concerning the prevention of stock market abuse have been violated, the Stock Market Committee has the right to impose a written reprimand to the perpetrator or, alternatively, a fine from 3.000 to 500.000 euros (art. 23 para. 2 of law 3340/2005).

• the confiscation of certain products (S. Art. 5 para.12 law 2741/1999 “On the food control”: the development minister may order the confiscation of certain food products, and, in case of a criminal sentence their confiscation and destruction are obligatory.
• The prohibition of the operation enterprise. See for example art. 5 para. 9 of law 2741/1999: temporary or definitive, partial or total prohibition of the works of the enterprise. S. also art. 13a para. 2 of law 2251-1994, as amended by art. 17 of law 3587/2007: In case of repeated violation of the law protecting the consumers legal interests, the development minister has the right to order the temporary prohibition of the operation of the enterprise for 3 months to 1 year. A temporary prohibition of the works of a bank may also be imposed by decision of the Stock Market Committee (art. 23 para. 1 of law 3340/2005).
• the publication of the sanction imposed to the enterprise (Art. 13a para. 5 of law 2251/1994 as amended by law 3587/2007.
• The temporary or permanent exclusion from public benefits or assistance. Thus, according to art. eighth of law 2803/2000 (“Ratification of the convention concerning the protection of the financial interests of the European communities”) the enterprise may be excluded from public benefits for a period from one month to two years. Similar provisions are contained in law 2656/1998 (“Ratification of the convention on the repression of bribery of foreign public officials in international business transactions”), art. fifth.

 

IV. Procedural issues

Since no criminal liability is foreseen for legal entities in Greece, the prosecution of the violations and the infliction of the administrative sanctions belongs to the administrative authorities, e.g. stock market committee and Bank of Greece for infringements pertaining to the stock market, development minister for violations of the consumers protection law, competition committee in case of violation of the anti-trust law (law 703/1977 as amended by law 3373/2005), the “Service of special controls” for the repression of the economic crime in case of bribery on the benefit of a legal person (law 2802/2000) etc.