Criminal liability of companies under Romanian legislation

1. General Criminal Liability Of The Companies Under Romanian Legislation

General Conditions of Criminal Liability of Companies
All legal persons (with the exception of the state and public authorities) are liable for criminal offenses perpetrated while carrying out their main activity or when acting in the interest or on behalf of the legal person. Public institutions are not liable for criminal offenses perpetrated while carrying out an activity that cannot be subject to the private sector. The criminal liability of a legal person does not exclude the criminal liability of the natural person which contributed to the offense.

Criminal Penalties Applicable to Companies
The penalties applicable to the companies are principal and ancillary. The principal penalty is a fine, ranging from RON 100 and RON 3,000,000 (approx. EUR 25 to EUR 650,000).

The ancillary (complementary) penalties are: a) dissolution of the legal person; b) suspension of the activity regarding one or more of the activities of the company for a period of 3 months to 3 years; c) the closure of certain points of work of the company for a period of 3 months to 3 years; d) Prohibition to participate in public procurement procedures for a period of one to three years; e) placement under judicial supervision; f) displaying or publishing of the conviction decision.

2. The Investigative Authorities

Criminal law enforcement is carried out by prosecutors and police officers acting under the supervision of a prosecutor (both of them referred to as criminal prosecution bodies). Independent of the investigating bodies, the prosecutor is the one who establishes the indictment and decides if the company should be prosecuted and sent before a court in order to be judged for the alleged criminal offense(s).

According to specific regulation and in order to ensure high quality of investigation skills for business crimes, the competence of police officers for business crimes is attributed to the Service/Directorate for Investigating Economic Crimes.

Furthermore, particular business crimes are investigated by two specialized Prosecutor’s Offices belonging  to the High Court of Cassation and Justice: (i) the National Anti-Corruption Directorate (which deals with business crimes related to corruption or against the European Union’s interests); and (ii) the Organized Crime and Terrorism Investigation Division (e.g. business crimes such as fraud with a prejudice of over RON 2,000,000 – approximately 445,000 EUR – offenses under Law no. 297/2004 regarding the capital market or money laundering in connection with business crimes stated under the provision of E.G.O. 78/2016). Each of these offices has both central (national) and territorial structures.

3. Corporate Criminal Liability – is the Entire Company Liable for Criminal Offenses?
Regardless of whether a person acts in the name and on behalf of the company (either as a regular employee or as a manager), an individual triggers the criminal liability of the company if he/she perpetrates the offense when carrying out the company’s main activity, or is acting in the interest or on behalf of the company.

However, the criminal liability of the company does not exclude the criminal liability of the individual participating in the offense.

Practice has shown the investigators usually jointly pursue both the company and the individual(s) which took part in the offense, since there are higher chances of recovering damages. However, following the criminal investigation, the company often becomes bankrupt and therefore the individuals are typically the only resort for recovery of damages.

Moreover, the prosecutor often orders a restraint on the company’s assets, to prevent them from being transferred.

4. Merger or Acquisition Context. When does Successor’s Criminal Liability Apply?

In case of loss of legal personality by merger, absorption or demerger occurring after the offence is committed, the criminal liability (along with the consequences thereof) will be charged against:

• the legal entity resulting from the merger;
• the absorbing legal entity; or
• those companies resulting from the demerger or the acquired parts of the estate of the initial company subject to the demerger.

In the cases identified above, the consequences of the offense are directly proportional to the share capital transferred to the subsequent companies or the successor company.

5. What information and documents can the investigative bodies obtain during a criminal investigation?

The Investigative bodies (in certain cases, only the prosecutor exclusively has this right) can:
 

• demand anybody (either the targeted person/entity under investigation or any third person/entity) to submit or issue any kind of document;
• search for and seize any existing objects and documents;
• order immediate seizure of computer data, (including data referring to traffic) that were stored by means of a computer system, or
• use surveillance or special investigation methods, such as:

• wiretapping of communications or of any type of remote communication;
• accessing an electronic system;
• video, audio or photographic surveillance;
• tracking or tracing using technical devices;
• obtaining data regarding financial transactions of individuals;
• withholding mail deliveries or search of such mail;
• use of undercover agents and informants;
• authorized participation in specific criminal investigation activities;
• assisted delivery; and
• obtaining stored and generated data from operators, such as telecom and internet providers, etc.