Corporate compliance versus the right to silence of legal entities in Romania: The case of certain tax evasion offences

Abstract

The concept of ‘corporate compliance’ is difficult to translate into Romanian through a comprehensive formula. As yet, there is no specific regulation, although some incipient legislative framework could be applied. On the other hand, the right to silence of legal persons is not expressly regulated by law either. This circumstance generates two alternatives. Some believe that this right can be exercised, others do not. But, maybe more important points of view hold that the right to silence is only available to natural persons, not to legal persons, as expressed even by the European Court of Justice in its decision on 2 February 2021, DB v National Commission for Companies and the Stock Exchange (Consob), C-481/19. In these circumstances, we intend to analyse the relationship between prevention and compliance. We will try to argue that the exercise of a form of silence of the legal person should still be specific to legal persons, especially when discussing subjects with a major impact on the social environment, and the crimes provided in Law no. 241/2005, especially Articles 3, 4 and 5. Furthermore, we are trying to address the effect of implementing the SAF-T system in Romania, from the perspective of the efficiency of the right to silence for legal persons. In the end, all persons – irrespective of their nature – do have certain legal rights that are recognized as such by law. So, both natural and legal persons should have the right to silence and the right not to self-incriminate themselves, especially in criminal cases.