Administrative and criminal liability: toward sustainability

ENadministrative and criminal liability in Europe, it should be noted that the Communication of the European Commission Toward an EU Criminal Policy (European Commission 2011) states that EU criminal law policy is primarily based on the provisions of Article 83(2) of the Treaty on the Functioning of the European Union (TFEU) (2012). EU law does not provide for a consistent set of constituent elements that characterize an administrative penalty and allow it to be distinguished from criminal sanctions. Markus Kärner (2022) stated that the concept of an administrative sanction is not precisely defined in EU law, and this concept also varies greatly between Member States. In the author’s opinion, the purpose of administrative sanctions is similar to the purpose of criminal sanctions: punishment for violating the law. However, criminal sanctions (such as imprisonment) have traditionally been more severe and carry greater social stigma compared to administrative sanctions. Because of the severity of potential sanctions, there are many procedural safeguards in place, and criminal sanctions are almost exclusively imposed by the courts. Administrative sanctions are applied for behavior that does not correspond to the essence of criminal law and may not require severe sanctions. Therefore, the term administrative is used in legal acts to indicate the non-criminal nature of sanctions and the main role of the administrative authority in sanctioning (Kärner 2022). The assessment of the administrative sanction is presented in the documents adopted based on Articles 82 and 83 of the TFEU (criminal law measures). After examining the instruments of criminal law, two examples of interaction with administrative sanctions should be presented. The PIF Directive (Directive (EU) 2017/1371, 2017) lays down the minimum rules on the definition of criminal offenses and sanctions in the fight against fraud and other illegal activities that harm the financial interests of the Union.Despite references to non-criminal sanctions and administrative fines that cannot be equated with criminal proceedings, the PIF Directive does not provide any specific guidance on how criminal sanctions differ from administrative sanctions. The Criminal Law Directives allow for non-criminal fines that penalize legal entities to be adapted to different legal systems. There are no criteria for distinguishing between criminal and administrative sanctions for legal entities. However, in 2014, the Market Abuse Regulation (Regulation (EU) No 596/2014, 2014) and the Directive on Criminal Sanctions for Market Abuse (CSMAD) (Directive 2014/57/EU, 2014) were simultaneously adopted. According to the Market Abuse Regulation, Member States can apply administrative sanctions for market abuse, while CSMAD requires criminal sanctions for serious cases of market abuse. Article 14 of the PIF Directive states that Member States shall ensure that criminal proceedings initiated on the basis of national provisions implementing this Directive do not unduly affect the proper and effective administrative application of measures, penalties, and fines, which cannot be equated to a criminal procedure established by Union law or national implementing provisions. [p. 105-106].