The rise of criminal liability in the corporate sphere

Corporate criminal liability laws in Europe are evolving quickly and prosecutors and regulators across Europe are focusing more and more on corporate misconduct in areas ranging from AML, to market misconduct, antibribery and corruption, tax evasion, data privacy, environment and others. The landscape of corporate criminal liability, including core questions of when and how liability accrues, varies significantly between jurisdictions. Multinational companies with global exposure should be aware of the differences between legal regimes and ensure that risks posed in this regard are properly understood. Below, we look at corporate criminal liability of companies in Poland, especially in the area of the environmental offences. 

In Poland, the establishment of corporate criminal liability of a company generally requires prior conviction of a physical person (an employee or agent of a company) responsible for the offence. This is usually very difficult thing to do for many reasons, so in practical terms the real threat to companies in this respect is often theoretical. As long as the perpetrator is not convicted, the company cannot be held liable. However, this is not the case as regards offences against environment such as:
 

• - causing damage to nature
• - environmental pollution in significant amount
• - improper waste handling
• - improper handling of radioactive material
• - lack of care for the protecting equipment
• - destroying or damaging protected areas or objects
• - harmful activity

 
In the case of the above mentioned environmental offences connected with the company’s activity, there is no need to find a guilty person or even to start investigation in the case. Under the new rules which were adopted in 2022, the public prosecutor can start criminal proceedings against the company even if there is no investigation against a physical person accused of committing the offence. This means that the threat to companies is enormous. Companies should watch developments closely and try to adapt to changing situation. Given the fact that the environment regulations are on top of the agenda and public opinion is vividly involved, the risk is huge.

A company can be found guilty of environmental offence if it has benefited or could have benefited from the offence. Under Polish law, the concept of a benefit should be understood broadly. The benefit can be either material (e.g. profit, saving an expense, avoiding a loss, obtaining a gratuitous benefit) or non-material (e.g. getting rid of a problem). The benefit does not need not be achieved. It is enough that it could have been achieved.
 
The growth in criminal liability for corporates and individuals creates new challenges. Organizations will doubtless require time to ready themselves for increased regulatory enforcement in 2024 and 2025. Companies in Poland should carry our due diligence in the area of environmental law and adopt adequate compliance policies before it is too late. Effective compliance systems and precautionary measures are vital.