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 increasingly on corporate misconduct in areas ranging from AML, market misconduct, antibribery and corruption, tax evasion, data privacy to 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, because there are special rules in Poland in this respect since 2022.

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 with regards to environmental offences, such as:
 

• Causing damage to nature (plant life or animal life).
• Environmental pollution of water, air or land in significant amount, especially by production plants.
• Improper waste handling.
• Improper handling of radioactive material.
• Lack of care of maintaining protective equipment.
• Destroying or damaging protected areas or objects.
• Harmful activity.

Thus, in the case of companies who breach the above mentioned environmental offences there is no need to establish a guilty person in order for formal investigations to commence.
Indeed, under the new rules which were adopted in 2022, the public prosecutor can start criminal proceedings against any company even where no individual person is specifically identified regarding culpability. This means that the threat to companies is enormous. Companies would therefore be well advised to monitor developments closely so that they can try to adapt; especially given the high priority legislation and the public place regarding observing these environmental rules.

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). Moreover, the benefit does not need not be achieved; it is enough that it could have been achieved.
 
So in conclusion, it is clear that 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 out 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.