Under section 51 DCC, criminal acts can be committed by legal entities and by natural persons. If a legal entity is deemed to be liable for an offence, the Public Prosecutor may seek to prosecute the legal entity and/or the natural persons in charge of the alleged criminal conduct.
If criminal prosecution is initiated against a legal entity, one must always consider whether acts of natural persons involved with the legal entity can be reasonably attributed to the legal entity. Whether an alleged criminal offence is considered to be committed by a legal entity depends on four criteria that have been developed through case law. These criteria are summarised as follows:
it concerns an act or omission of someone who is, directly or indirectly, employed by the legal entity,
the behaviour is conducive to the legal entity in operating its business,
the legal entity has controlling power over the (alleged criminal) actions that take place, and
the legal entity must have – or must seem to have – accepted the possible criminal behaviour or past similar (criminal) behaviour.
The third branch of the criteria entails that the legal entity must have had the opportunity to regulate the (prohibited) behaviour, for example, by giving instructions and guidelines. This is easily met by most legal entities, because normally it has control over the persons acting for and within the company.
The final branch concerns company policy. If the legal entity has accepted the prohibited behaviour, which would be clear from its acts or omissions, or has a history of allowing such behaviour to occur, the fourth branch has been met. Not taking sufficient action against employees who are involved in prohibited behaviour can be a reason to assume acceptance on behalf of the company.
The persons within the legal entity who have ordered, or are actually in charge of, the prohibited behaviour may only be prosecuted if the legal entity itself is liable for the prohibited behaviour on the basis of section 51 DCC. However, the Public Prosecutor may decide to prosecute only the natural persons in charge of the alleged criminal conduct. In that case, it must still be proven that the legal entity could have been successfully prosecuted.