Tacit and Dissimulated Participation in Illicit Activity – Cartels, Terrorist and Criminal Groups and Other Joint Criminal Enterprises
Rezumat
Tacit and dissimulated participation in illicit activity tackles situations when a natural or legal person takes a part in illicit activity but does not expressly declare its will to take part in such an activity or expresses will that is contrary to actual intent or behaviour. Or the person does not understand the content of the plans of the group or their real consequences due to linguistic misinterpretation, lack of experience or error in fact. The paper draws up possible legal consequences of these situation from several aspects. First, distinguishing from legal consequences of acts of private that are intended to be valid, while illicit act cannot be valid per se. Second, comparative view on different types of „group delicts”, such as cartels, machinations in public procurement, terrorist, and criminal groups, as administrative and/or criminal offences. Third, questions of accountability and attributability of such a tacit or dissimulated behaviour of a manager or an employee vis-à-vis administrative and criminal liability of legal persons. The analysis is based on legal environment of Slovakia considering national and the European Union law.
Studiu publicat în volumul In Honorem Flavius Antoniu Baias. Aparența în drept, tomul II, Ed. Hamangiu, București, 2021, p. 533-550.
Introduction
Private law establishes assessment of validity of tacit and dissimulated participation in consensual or contractual legal acts. Thus, private law shall solve the problem whether contract between parties, from at least one simulated its will to be a party to this contract or did not express its will at all, is valid, void or non-existent. Within the spectre of behaviour contrary to the law, we can find examples that resemble contract between two or more parties. In these situation „parties” agree on certain illicit behaviour contrary to legal order of particular jurisdiction. Of course, these „contract” cannot be valid under civil law and cannot be enforceable thereby. Nevertheless, we can search boundaries of quasi validity of illicit legally invalid contracts, i.e. what criteria must be fulfilled in order to establish that illegal agreement was concluded and thus its parties can be prosecuted. In this context, categories of simulation, appearance, or silent approval (or non-expressed disapproval) can be examined.
Hence, tacit and dissimulated participation in illicit activity tackles situations when a natural or legal person takes a part in illicit activity but does not expressly declare its will to take part in such an activity or expresses will that is contrary to actual intent or behaviour. Or the person does not understand the content of the plans of the group or their real consequences due to linguistic misinterpretation, lack of experience or error in fact. The paper draws up possible legal consequences of these situation from several aspects. First, distinguishing from legal consequences of acts of private that are intended to be valid, while illicit act cannot be valid per se. Second, comparative view on different types of „group delicts”, such as cartels, machinations in public procurement, terrorist, and criminal groups, as administrative and/or criminal offences. Third, questions of accountability and attributability of such a tacit or dissimulated behaviour of a manager or an employee vis-à-vis administrative and criminal liability of legal persons. The analysis is based on legal environment of Slovakia considering national and the European Union law.
§1. Agreements restricting competition[1]
1.1. Notion of agreements restricting competition
One of the practices prohibited by European Union law, as well as Slovak law, consists of agreements and concerted practices between entrepreneurs and decisions of associations of entrepreneurs. In this paper, we will focus on agreement stricto sensu because of all illicit behaviour covered by competition rules they mostly resemble contract in private law.
The concept of an agreement, used in competition law, evokes that it should be an act similar to a contract concluded on the basis of civil or commercial law. It should be noted at the outset that the notion of an agreement for the purposes of competition law and for the purposes of private law will not be covered from the point of view of their legality, as an agreement restricting competition is illegal.
The provision of Art. 101(1) of the Treaty on the Functioning of the European Union (hereinafter „TFEU”) does not define the term agreement for the purposes of Union competition law. National private law rules can hardly be used to define the conditions for such an „agreement”. The first problem would be linked to the existence of different rules of private law in force in the various Member States, and thus the creation of an agreement could be affected by different conditions in different Member States. It is obvious that for the purposes of Art. 101 TFEU, the concept of an „agreement” is inevitably unified in order to be applied uniformly in all the Member States. The second problem stems from the very nature of a private law contract, which is a bilateral legal act which establishes mutual legal rights and legal obligations of the parties to the contract, which are also legally enforceable. Prohibited agreement under Art. 101 TFEU, however, does not have such characteristics, because according to Art. 101(2) TFEU is null and void and therefore not legally enforceable.
It follows that the term „agreement” must be defined independently of the concepts of private national law. According to settled case law[2], for the creation of an agreement within the meaning of Art. 101 (1) TFEU, it is sufficient for the undertakings concerned to express their common intention to behave in a certain way on the market. It follows from the above that for the establishment of an agreement under Art. 101 of the Treaty, the cumulative fulfilment of the following characteristics is required:
1. participation of at least two undertakings;
2. expression of common will;
3. the agreement concerns common behaviour on the market.
Therefore, for the term „agreement„ for the purposes of Art. 101 TFEU following is not relevant:
1. the binding nature of the contract;
2. form of a contract;
3. the legal consequences of a contract;
4. the validity of the contract under national law, or the provisions of the contract themselves.
It is clear from the above that the term „agreement” has an economic rather than a legal content, as the legal issues related to the creation of the agreement are not relevant and the factual circumstances of the instrument under examination are assessed in particular.
1.2. Expression of will and agreements restricting competition
Although the definition of the term „agreement” for the purposes of Art. 101 TFEU abstracts from the legal conditions attributed to the conclusion of contracts under national private law, it seems to be apparent that the will, as in the case of private law contracts, shall be free and serious and clearly expressed. A contrario, a cartel cannot arise from a joke or from a simulation that is a part of a teaching or course. Nor can the express of will of the undertaking cannot be considered expressed if there is physical or mental pressure on a member of its statutory body. Regarding the clarity and certainty of expressed will, it must be noted that in many cases the provisions of cartel agreements, or the evidence which constitutes indications of such an agreement, need not clearly contain an explicit measure which constitutes a prohibited practice, however the mutual relationship of the undertakings must be determinable enough to be attributed to certain behaviour on the market.
On the other hand, it is settled case-law that the examination of the actual will of an undertaking is limited (e.g. economic coercion is not considered relevant). In some situations, the actual will of an undertaking is not as relevant as in the case of an examination of private-law contracts.
For the purposes of establishing the existence of agreement under Art. 101 TFEU, expression of the will is relevant. Thus, even if an undertaking did not feel bound, whether in law or in fact or morally, by the agreement adopted, that fact is irrelevant and it is sufficient that the undertaking, together with another undertaking, has expressed a common intention to behave in a certain way on the market[3]. According to the Court of Justice of the European Union (hereinafter „C.J.E.U.”), the condition for the application of Art. 101(1) TFEU in order for undertakings to be considered to be bound by the collusion in which they participated[4]. However, an agreement would not be concluded if the parties did not even behave as if they expressed a willingness to be bound by the agreement.
The settled case-law also considers silence to be an acceptance of an accepted contract, even if that undertaking does not implement the agreement, and there can therefore be no question of the implied conclusion of the contract. Often, a cartel is concluded at meetings between the parties’ representatives, and it is not usual to make a record of those negotiations. According to the C.J.E.U., the undertaking cannot argue that, although it attended the meeting it did not sign price agreements[5], because if the anti-competitive nature of the meetings is established, the undertaking that attended it without publicly distancing itself from what happened at such a meeting caused impression of other participants of that meeting that it accepts the conclusions of the meeting and will act accordingly[6]. Therefore, if an undertaking participates in meetings aimed at restricting competition or trade between Member States, it becomes a party to the prohibited agreement resulting from those meetings[7]. That fact be affected by the fact that it behaved inactively at the meeting in question[8].
It follows from settled case law that an undertaking becomes a party to an agreement resulting from a meeting of undertakings, regardless of whether it was directly involved in the negotiations and whether it expressly declared its will to be bound by the conclusions of the meeting or implemented the conclusion of the meeting, unless it publicly distanced itself from the conclusions of the meeting[9], but need to be aware of the anti-competitive objectives of the meeting[10]. „In that regard, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement”[11]. Such an interpretation of the C.J.E.U. also has a preventive effect in the fight against cartels, since an undertaking cannot be uncaring to attending a meeting at which a cartel was agreed, although it does not intend to or did not participate in it, since it can be considered party to such an agreement by competition authorities. At the same time, it simplifies the evidentiary position, because in the case of proving the company’s participation in such a meeting, undertaking’s only possible defence is to show that the meeting was not anti-competitive, or that it publicly distanced itself from its conclusions, or it announced to the competitors that the purpose of its participation at the meeting was different to theirs[12].
L. Souto Soubrier analysed 16 combinations of the will of the parties to the agreement and its manifestations in connection with the creation of the agreement pursuant to Art. 101 TFEU[13] and identifies only 4 combinations out of 16 when the agreement can occur. However, due possibility of tacit conclusion of anti-competitive agreement, we can add additional column to Souto Soubrier’s table assessing existence of an agreement in the cases when no party distance itself publicly from the cartel:
| Will A | Declaration A | Will B | Declaration B | Scenario | Agreement | Agreement if non-distancing | |
| 1 | – | – | – | – | Initial scenario | – | – |
| 2 | – | – | – | + | B’s unilateral simulation (e.g. due to mental reservation or coercion) | – | + |
| 3 | – | – | + | – | B’s undeclared unilateral will | – | – |
| 4 | – | – | + | + | B’s declared unilateral will | – | + |
| 5 | – | + | – | – | A’s unilateral simulation (e.g. due to mental reservation or coercion) | – | + |
| 6 | – | + | – | + | Simulation by both parties | + | + |
| 7 | – | + | + | – | Simulation of A and undeclared will of B | – | + |
| 8 | – | + | + | + | Simulation of A and declared will of B | + | + |
| 9 | + | – | – | – | A’s undeclared unilateral will | – | – |
| 10 | + | – | – | + | Undeclared will of A and simulation of B | – | + |
| 11 | + | – | + | – | Undeclared will of A and B | – | – |
| 12 | + | – | + | + | Undeclared will of A and declared will of B | – | + |
| 13 | + | + | – | – | A’s declared unilateral will | – | + |
| 14 | + | + | – | + | Declared will of A and simulation of B | + | + |
| 15 | + | + | + | – | Declared will of A and undeclared will of B | – | + |
| 16 | + | + | + | + | Perfect convergence | + | + |
From this expanded table, it is apparent that the agreement cannot be identified merely in cases where there is no expression of will, neither declaration of actual will nor simulation. Therefore, if some expression of will of any party to conclude an anti-competitive agreement occurs, the only way to escape from involved in anti-competitive infringement is to publicly distance from the agreement.
These scenarios are easily understandable in cases when parties to the agreement communicate directly to each other in common language. Thus, other scenarios can emerge:
1. one of the parties does not understand properly that it is involved into agreement;
2. parties are not in contact and, at least some of them, do not know each other.
As it was mentioned above, the undertaking must be at least aware of anti-competitive character of the meeting. The C.J.E.U. rejected in Novácke chemické závody case an argument of low level of language skills of the members of the management and, moreover, rejected it as a mitigating factor for fine „…the level of knowledge of foreign languages of the two members of the applicant’s management who represented it at the meetings of the cartel is of no relevance. Irrespective of such knowledge, what is important is that (…) it disclosed data relating to its sales, was aware of similar data from the other members of the cartel and entered into commitments concerning the sharing of relevant markets, quotas, customer allocation and price setting. The fact — even if it were established — that, owing to a lack of linguistic skills, social interaction between the applicant’s representatives and those of the other members of the cartel was restricted is, in that respect, immaterial.”[14] Awareness of anti-competitive character of an agreement, as a constituting factor of creation of anti-competitive agreement itself, is not linked of knowledge of it unlawfulness[15], i.e. error in legal assessment is not relevant. And it is also irrelevant if there was an error of assessment of the facts caused by lack of knowledge or experience that the behaviour in issue can be considered anticompetitive and contrary to competition law prohibition. Thus, the C.J.E.U. rejected the argument of Novácke chemické závody that „the members of its management were people who were educated and had pursued a career under the conditions of the strictly regulated economy of the pre-1989 Communist regime” and it noted that the infringement was committed 14 years after the fall of the Communist regime. Since it is possible to commit cartel infringement negligently, for establishing participation of an undertaking in an agreement restricting competition „it is sufficient that it could not have been unaware that its conduct had as its object the restriction of competition in the common market”.[16]
Second situation is commonly linked to so-called „hub-and-spoke” agreements[17], i.e. competitors are coordinated by or via their vertical agreements with one „hub”. Although „hub-and-spoke” conspiracies are usually described as concerted practices rather than agreements stricto sensu, conclusion of the C.J.E.U. in Eturas case can be also instructive for agreements restricting competition stricto sensu, since more and more of communication between undertakings is moved from personal contacts to online communications and coordination via computer applications[18]. For the participation in the cartel is not necessary to answer to electronic communication, but it is necessary to establish that the addressee was aware of such a communication as well as aware of its anti-competitive context[19].
Similar situation to „hub-and-spoke” cartels occurs when cartelist themselves invest powers of coordination of cartel to other undertaking that is not active at the market in issue[20], Indeed, existence of prior agreement in situations described in Treuhand case is apparent and the „third” party is mere facilitator of an agreement restricting competition. The Slovak competition authority (the Antimonopoly Office of the Slovak Republic) investigated specific situation when the „facilitator” of the bid rigging cartel not only facilitated the cartel but was also a focal point of the cartel. This case is particularly interesting because the facilitator was acting on behalf of the contracting authority and in fact coordinated the bids[21]. Although in these situations of „hub-and-spoke” cartels as well as cartels organized by a facilitator it is hardly to establish existence of an agreement stricto sensu, existence of prohibited concerted practice can be definitely established.
§2. Criminal law contexts of Tacit and Dissimulated Participation in Illicit Activities
Criminal considerations associated with the possibilities of tacit and dissimulated participation in illicit activities in the conditions of criminal law in the Slovak Republic can be conducted primarily in two basic lines. On the one hand, these are ideas related to forms of criminal involvement, primarily in connection with the commission of crime through an organized group, a criminal group or a terrorist group (with an emphasis on the participation and membership of an individual in such a group), on the other hand, these are considerations connected with the criminal liability of legal persons, or rather with the borderline criteria for attributing the conduct of an individual to such a legal construct.
Although these lines represent different sets, a certain link is the subjective aspect of the crime, which is a limit regarding respect for one of the basic principles of substantive criminal law – the principle of liability for fault. As subjective responsibility (ergo liability for fault) is strictly accepted in the conditions of Slovak criminal law, it is fault[22] that is an internal corrective through which it is possible to differentiate whether the behaviour of a particular individual fulfils the characteristics of a crime or not. In particular, in connection with the criminal liability of legal persons in the Slovak Republic, it is necessary to state that the concept of true criminal liability of legal persons does not interfere with the perception of the principle of liability for fault, however, it modifies it with regard to the concept of attribution of conduct in relation to a legal person (it is then not a collective guilt), since, in the end, a certain natural person always acts on behalf of a legal person (whose action can be attributed to a legal person if the established conditions are met).
2.1. Activities related to the existence of an organized, criminal and terrorist group and their impact on the criminal responsibility of the individual
If we look at the first of the sets, this offers us in the conditions of criminal law a relatively wide range of activities that can be differentiated through the theory of criminal law. First of all, it is necessary to realize that the joint activity of several persons in connection with the commission of a crime can be called by the collective name of criminal involvement. Although the above-mentioned term expresses the common procedure of several persons, it is the individual forms of criminal involvement that help us to recognize the signs materially. In the following text, we will therefore focus primarily on three forms of criminal involvement, the aspects of an organized group, a criminal group and a terrorist group. Our basic interest will be to define how the subjective aspect of individual persons falling within the framework of the above groups is determined and created, what are the possibilities of involving such persons in the framework of such groups and, in the end, whether it is possible to link the inference of criminal liability also to cases where there is de facto tacit or dissimulated participation in the existence and activities of such groups. Although there are other crimes defined in Slovak criminal law that are usually committed by two or more persons in cooperation, machination in public procurement included[23], individual behaviour of perpetrator is always assessed and therefore it is not necessary to analyse them separately from general consideration of joint „criminal enterprises”.
In the first place, in terms of interpretation, the broadest term in terms of the terminology of Act No. 300/2005 Coll. The Criminal Code, as amended (hereinafter referred to as the „Criminal Code” or the „CC”), is the term group of persons. This is defined only quantitatively, as a group of at least three people. In terms of the groups[24] we will work with in the following text, the most general term is organized group, which means „(…) an association of at least three persons grouped together with the objective of committing a criminal offence and using a certain division of tasks among individual members of the group; as a result, the activities of the group have a planned and coordinated character which increases the likelihood of a successful commission of the criminal offence”.[25] The second of the groups in question is the criminal group, which is understood „(…) a structured criminal association of at least three persons, existing for a certain period of time, acting in a co-ordinated manner with the objective of committing one or more felonies, the criminal offence of money laundering pursuant to Section 233, or any of the corruption criminal offences referred to under the Chapter Eight, Title Three of the Special Part of this Act, for the purposes of obtaining, directly or indirectly, a financial benefit or other advantage”.[26] The last of the analysed groups in terms of the Criminal Code is a terrorist group, while the name implies that it means „(…) a group of at least three persons who exists for a certain period of time for the purpose of committing one of the offenses of terrorism, the activities of which are characterized by coordination; it does not have to have formally defined roles for its members, a permanent membership base or a developed structure”[27]. Based on the above, it can be stated that the common feature of the analysed groups is not only the connection (activity) of at least three people, but the primary focus of such a group, as well as the division of tasks and management structure, whereas the most significant structure (respectively structuring) is identifiable in the case of a criminal group (a criminal group and a terrorist group are referred to in the Criminal Code by the common term of „dangerous grouping” within the meaning of Section 141). In the meaning of the above definitions of terms for the purposes of the Criminal Code, it is necessary to be aware of two things. On the one hand, if a given group is to be proven in a particular case, it is necessary to prove without reasonable doubt the individual defining features as they are called by the legislator (which may sound problematic in an individual case)[28], on the other hand, it can be stated that such a terminological definition does not clearly express the specific involvement of an individual as a member or non-member of any of the groups (this is de facto expressible only with an emphasis on the individualisation of the conduct).
Under the terms of the Criminal Code, the commission of a criminal offense in connection with one of the mentioned groups has two lines of impact. While in the text above we have described the basic theoretical background (a kind of interpretive apparatus), the mentioned lines of impact are linked to the features of the subject matter of the crime. On the one hand, it is linked to the basic subject matter of the crime (in the case of criminal offenses of Establishing, Masterminding and Supporting a Criminal Group and Establishing, Masterminding and Supporting a Terrorist Group within the meaning of Section 296 and 297 CC), on the other hand, it is a link to the basic subject matter of the crime through the qualification mark, thus within the qualified subject matter of the crime[29]. In view of the above, it can be stated that while the qualification mark „as a member of the relevant group” can only be attributed in relation to a person who is a member of one of the groups, in the case of the mentioned criminal offenses pursuant to Sections 296 and 297 of the Criminal Code, the criminal liability of persons who are not members of such groups is also possible. In the following text, we will focus on both defined lines, focusing primarily on the quality of the required subjective side.
First of all, interest will be placed on crimes of Establishing, Masterminding and Supporting a Criminal Group[30] and Establishing, Masterminding and Supporting a Terrorist Group[31] within the meaning of Sections 296 and 297 of Criminal Code. As the above-mentioned criminal offenses coincide within the features of the subject matter of the criminal offense, the interpretation will also be conducted jointly (the only difference between the offenses in question lies in the seriousness of which conduct, which is expressed by the penalty of imprisonment). From the point of view of further interpretation, the objective element and the subjective element are of fundamental importance.
Specifically, from the point of view of the objective element of crime, we mean terms such as establishment, conceiving, activity, support and membership in such a group (the defining features of which group we have defined in the text above). First of all, it is necessary to realize that for the completion of the above crimes it is sufficient (for the fulfilment of other obligatory features of the subject matter of the crime) the fulfilment of one of the described alternatives of objective element (e.g. membership in such a group), and therefore there is no need for another crime (or offenses) to be committed, for the purpose of which the group in question was created (thus, in order to speak of a criminal group, the act describing the establishing, masterminding and supporting of a criminal group does not have to be followed by specific acts establishing the criminal offenses precisely required by Criminal Code)[32]. In these cases, the law elevates behaviour in issue from the level of attempt of crime to finished criminal offence. In connection with the above-mentioned alternatives to the objective element of the crime, the legislator defines by law what can be understood as activity for a criminal group or terrorist group or support for a criminal group or terrorist group[33]. For the purposes of the present contribution, it is especially important that the legislator emphasizes the intention of the offender in the context of such conduct (in the case of activities for such a grouping through the phrase „intentional participation or other intentional conduct”, in the case of support for such a grouping through the phrase „intentional conduct”). It is therefore true that the objective element of the subject matter of the offense must be interpreted strictly in the light of the subjective element of those offenses.
While the concepts of establishment and conceiving can be perceived in terms of the common meaning of these terms (thus an activity aimed at the creation of a dangerous grouping, respectively an activity aimed at initiating an agreement on the establishment of a dangerous grouping[34]), for the purposes of possible criminal liability, it is necessary to know the content of the term „membership in such a grouping”, because, as mentioned above, membership itself (without the need to commit another crime) may make criminal liability conditional. The basic precondition, in addition to the membership in the dangerous grouping itself, is the fact that such a dangerous grouping exists continuously for the relevant purpose (whereas the very purpose of existence is one of the basic features for assessing whether it is a dangerous grouping in a particular case).
But what do we mean by membership in a dangerous grouping? It is true that membership is based on inclusion in the organizational structure of a criminal or terrorist group, not on the formal admission of a member. It is then decisive that the person is a member of such a dangerous grouping at the time of the examination of the fact, even though he has not been a member since the establishment itself. It is also important to state that such a person does not have to be acquainted in detail with the structure of the dangerous grouping, it is sufficient if he performs partial tasks[35]. On the other hand, alternatives in the form of action and support to a criminal or terrorist group are tied to persons who are not members of such dangerous groupings but act in the manner defined in Section 129 paras. 6 and 7 of the Criminal Code (i.e. perform activities aimed at maintaining the existence of such a group, or provide resources or services for its existence, or for the establishment itself).
In any case, it should be noted that criminal offenses within the meaning of Sections 296 and 297 of the Criminal Code constitute intentional criminal offenses (with regard to the wording of Section 17 of the Criminal Code[36]), and thus the other features of the offenses must also be interpreted in the light of that. It then applies that the criminality of the offense will require proof of at least indirect intent, and that the person was understood in all circumstances (primarily in relation to knowledge of the existence of a criminal or terrorist group). If a person merely relies, without reasonable grounds, that the group in question is not a criminal or terrorist group (although on the basis of its features it would be such a grouping), even though it knew that it could violate or endanger the protected interest, it would not be a criminal offense within the meaning of Sections 296 or 297 of the Criminal Code, as it would be only negligent conduct, but it is not punished by these criminal offenses. It is therefore necessary to realize that even tacit or dissimulated participation in the illicit activities of a criminal or terrorist group may involve criminal liability, in a particular case, however, it will be necessary to demonstrate that the person has at least understood the activity and purpose of the existence of such a dangerous grouping. The above is perhaps only possible in the alternative of the objective element, when the person is a member of such a grouping, as other alternatives of the objective element are associated with a certain activity, from which the understanding of the perpetrator at least implicitly follows. However, we believe that such cases where a member of a dangerous grouping will not even understand the facts of a dangerous grouping will be rather marginal, especially if we start from the defining features of membership, as defined above (namely that the knowledge of the individual about the activities and structure of the whole dangerous group is not required, or that the fulfilment of partial tasks is sufficient). However, the negligence of a particular person probably cannot be absolutely ruled out.
The second basic line of punishing the offender’s conduct at the level of criminal law, if he acts as a member of a dangerous grouping, is the already mentioned attribution of the qualification mark that the person acted as a member of the relevant grouping. The qualification mark in question is a circumstance which conditions the application of a higher penalty rate and therefore increases the seriousness of the offender ‘s conduct. Based on the definition of fault (ergo subjective element), it also applies to qualifying subject matters (as the perpetrator cannot be held responsible for consequences that he did not cause)[37]. However, in the case of qualified subject matters, Section 18 of the Criminal Code is of decisive importance, as for another fact [whereas membership of a criminal or terrorist group is such a different fact] as an aggravating circumstance shall be taken into account „(…) even if the offender was not aware of it although, considering the circumstances and his personal situation, he should and could have known it, unless this Act explicitly requires that the offender be aware of such a circumstance”. This means that in relation to the qualification mark, fault for unintentional negligence will suffice, unless the Criminal Code provides otherwise (or, unless the Criminal Code requires otherwise). In the given case, we must help ourselves with the theory of substantive criminal law, and although the Criminal Code does not explicitly provide otherwise in the given case, it stipulates differently with regard to the nature of the matter. By its nature, it is inadmissible for a person to be a member of a dangerous grouping only out of negligence, it will therefore always be necessary to demonstrate at least an indirect intention in order to attribute that qualification mark. Here we then get to a similar level as in the case of the first of the lines, where it will be necessary to prove the perpetrator’s understanding of the fact that he is a member of a dangerous grouping. Without proving the above, it will not be possible to infer criminal liability against an individual through the relevant qualified subject matter of the crime.
A certain line of considerations in question may also be the issue of negative error in fact, that is, cases where a person would act in a certain way without being aware of certain significant facts, in these cases, only unconscious negligence comes into consideration (subject to the fulfilment of criminal liability conditions) if the person had and could have known (given the circumstances and personal circumstances) that he could violate or endanger the protected interest. It is also possible to mention the so-called excesses of accomplice when the accomplice deviates from the framework of the agreement of the given form of criminal involvement and will therefore be responsible for the consequences of the excess. We believe that such a situation could arise in connection with cases where one of the accomplices would act with the understanding that he is acting in the framework of the activities of a criminal grouping, however, the second of the accomplices would not have knowledge of the above (more precisely, it is also crucial in this case to understand the perpetrator of such a fact). This would then be relevant in relation to the issue of attributing the qualification mark „as a member of a criminal group” (within the meaning of the considerations defined in the text above).
2.2. Criminal liability of legal persons and the concept of imputability of conduct to a legal person
The concept of true criminal liability of legal persons is also related to the mentioned issue in a certain framework, which applies in the Slovak Republic with effect from 1 July 2016, in connection with Act No. 91/2016 Coll. on Criminal Liability of Legal Persons and on Amendments to Certain Acts, as amended (hereinafter referred to as the „Act on CLLP”). The connotations are visible in at least two directions, the first being that since a legal person as a creation of law cannot act with fault (which is also expressed through Section 17 of the Criminal Code, as the criminality of an act committed by a natural person requires intentional fault, unless this law expressly provides that fault through negligence is sufficient; there is no mention of a legal person in any way, although it may be in accordance with Section 19 para. 2 of the Criminal Code the perpetrator of a criminal offense, under the conditions laid down by a special legal regulation – Act on CLLP), the concept of attributability applies. The second line is then at least that a legal person can be a perpetrator of a criminal offense within the meaning of Sections 296 and 297 of the Criminal Code (i.e. in connection with criminal offenses to which attention was paid in the previous subchapter). This means that, in addition to the problems raised, which are related to the mere demonstration of the subjective element in relation to members of a criminal or terrorist group, it is necessary to understand and resolve whether such conduct is attributable to a legal person.
As we stated in the text above, the concept of attributability modified in some way (not derogated from) the principle of liability for fault. In practice, this is a certain fiction, the mechanism of which is defined in Section 4 of the Act on CLLP. It is a crime „(…) is committed by a legal person if it is committed in its favour, on its behalf, in the course of its activities or through it, if [cumulatively] acted by a statutory body or a member of a statutory body, a person who carries out control or supervision within a legal person, or another person who is authorized to represent or decide on a legal person”. Pursuant to para. 2 of this provision, however, a criminal offense is committed by a legal person even if „(…) the person referred to in para. 1 [it means the statutory body or a member of the statutory body, the person who carries out control or supervision within the legal person, or another person who is authorized to represent or decide on the legal person] insufficient supervision or control which was his duty, even though he negligently made it possible to commit the offense by a person who acted within the powers conferred on him by a legal person”[38]. Based on the above, the mentioned concept of attributing such conduct to the relevant natural person to the legal person works (these provisions shall also apply provided that the natural person who acted on behalf of the legal person is not criminally liable, or if it is not possible to determine which specific person from the group of persons acted accordingly).
In the given context, it is then necessary to realize that a legal person may be in connection with criminal offenses of Establishing, Masterminding and Supporting a Criminal Group and Establishing, Masterminding and Supporting a Terrorist Group within the meaning of Sections 296 and 297 of Criminal Code criminally liable as a member of such a grouping, as well as a non-member, in connection with the activities or support of such a grouping (whether in the position of perpetrator, accomplice or participant – although participation in the form of assistance is not possible in the case of the above-mentioned criminal offenses).
One of the basic preconditions for attributing a criminal offense to a legal person is the existence of a criminal offense of a natural person, i.e. a criminal offense, including all obligatory features of the subject matter of the criminal offense, and thus also the subjective element. The attribution is then the second step of the scheme with regard to the person in the relevant position, or if the manner in which the attribution of the offense to the legal person is linked is fulfilled. If we imagine a statutory body of a legal person (as a natural person) acting in the name and within the activities of a legal entity, for example in connection with the support of the activities of a dangerous group, such action can be attributed to the legal entity. It is not even a breach of the ne bis in idem principle for a natural person as well as a legal person to be held criminally liable for that conduct, as these are different entities. We believe that the mentioned succession of steps is also important for the situations we have established, in cases of tacit and dissimulated participation in illicit activities. As we stated in the text above, such participation is also possible if the requirements of the subjective element are met, i.e. the person is aware of membership in a dangerous grouping (and membership itself may be a precondition for criminal liability). It is being considered whether such inactive membership (but with full knowledge of the possible criminal consequences) could be a precondition for attributing such conduct to a legal person. It can be stated that only under the precondition of cumulative fulfilment of the assumptions of attributability in the sense of Section 4 of the Act on CLLP.
A certain derivative of criminal liability of legal persons is the so-called conduct for another, in accordance with Section 128 para. 8 CC, which, although more related to the subject of the crime (in connection with a special and a specific subject), may also affect the cases we focus on. We see the importance primarily in the fact that if it is stipulated that the offender must be a holder of a special characteristic, competence, or position, it is sufficient if this characteristic, competence, or position is fulfilled by a legal entity in whose name the offender acts, either by law or other decision. This concept is also applicable in cases where the offender acts illegally on behalf of the legal entity (provided that the legal entity has such a characteristic or competence), as the law does not require that such conduct be justified at the same time, it is based on the factual nature of the conduct. Ultimately, therefore, the perpetrator will be an individual natural person, again, the knowledge of the subjective element will be of fundamental importance.
Conclusions
Both, European and Slovak competition law do not require intentional behaviour for catching agreement of two or more wrongdoers by prohibition and sanctions stipulated by competition law and forms and criteria of fulfilling the basic features of the „agreement” are much more lenient comparing to civil law. The substantial difference is that simulation and even dissimulation is not relevant, and it is possible to become a party to such an agreement even tacitly if the undertaking does not distance from the agreement. Hence, the minimal criterion for establishing participation in illicit agreement restricting competition is at least certain knowledge of anti-competitive character of an agreement or meting where the agreement is „concluded”, or it should have such knowledge. In this context, passivity, lack of proficiency in language of meeting or lack of experience are completely irrelevant.
On the other hand, criminal law deals, mainly, with categories of intentional offences. However, criteria for establishing participation in dangerous grouping can be similar to participation of cartels. Is it not necessary for the offender to have knowledge of all details of the dangerous grouping, however it is being necessary to demonstrate that the person has at least understood the activity and purpose of the existence of such a dangerous grouping.
Footnotes
[1] This chapter is based on author’s previous work O. Blažo, Pojem dohoda v súťažnom práve, în Acta Facultatis Iuridicae Universitatis Comenianae, 2013, vol. 32, no. 1.
[2] E.g. C-41/69, Chemiefarma v Commission, Judgment of 15 July 1970, EU:C:1970:71, §112.
[3] T-347/94, Mayr-Melnhof Kartongesellschaft/Commission, Judgment of 14 May 1998, EU:T:1998:101, §65.
[4] T-310/94, Gruber + Weber/Commission, Judgment of 14 May 1998, EU:T:1998:92, §96.
[5] T-141/89, Trefileurope/Commission, Judgment of 6 April 1995, EU:T:1995:62, §83.
[6] T-141/89, Trefileurope/Commission, Judgment of 6 April 1995, EU:T:1995:62, §85; T-7/89, Hercules Chemicals/Commission, Judgment of 17 December 1991, EU:T:1991:75, §232.
[7] T-141/89, Trefileurope/Commission, Judgment of 6 April 1995, EU:T:1995:62, §83.
[8] T-15/99, Brugg Rohrsysteme/Commission, Judgment of 20 March 2002, EU:T:2002:71, ods. 38.
[9] C-204/00, Aalborg Portland and Others/Commission, Judgment of 7 January 2004, EU:C:2004:6, §85; C-189/02 P, Dansk Rørindustri and Others/Commission, Judgment of 28 June 2005, EU:C:2005:408, §144.
[10] C-238/99 P, Limburgse Vinyl Maatschappij and Others/Commission, Judgment of 15 October 2002, EU:C:2002:582, §509.
[11] C-204/00 P, Aalborg Portland and Others/Commission, Judgment of 7 January 2004, EU:C:2004:6, §84; C-189/02 P, Dansk Rørindustri and Others/Commission, EU:C:2005:408, §143.
[12] C-204/00 P, Aalborg Portland and Others/Commission, EU:C:2004:6, ods. 81; C-189/02 P, Dansk Rørindustri and Others/Commission, EU:C:2005:408, §142.
[13] L.F. Souto Soubrier, The Concept of an Agreement and Beyond: How to Block Parallel Imports of Pharmaceuticals to Protect the Heart of Competition, în G. Amato, C.-D. Ehlermann (eds.) EC Competition Law a Critical Assessment [online], Hart Publishing, 2007, pp. 95-96. Available at: https://ssrn.com/abstract=1062961.
[14] T-352/09, Novácke chemické závody/Commission, Judgment of 12 December 2012, EU:T:2012:673, §103.
[15] T-352/09, Novácke chemické závody/Commission, Judgment of 12 December 2012, EU:T:2012:673, §83-87.
[16] T-352/09, Novácke chemické závody/Commission, Judgment of 12 December 2012, EU:T:2012:673, §85.
[17] W. Page, Communication and Concerted Action, in Loyola University Chicago Law Journal. 2007, vol. 38, no. 3, p. 439.; O. Odudu, Indirect Information Exchange: The Constituent Elements of Hub and Spoke Collusion, in European Competition Journal [online], 2011, vol. 7, no. 2. DOI: 10.5235/174410511797248324; N. Sahuguet, A. Walckiers, A theory of hub-and-spoke collusion, in International Journal of Industrial Organization [online]. 2017, vol. 53. DOI: 10.1016/j.ijindorg.2016.04.008.
[18] A. Ezrachi, M.E. Stucke, Artificial Intelligence & Collusion: When Computers Inhibit Competition, in University of Illinois Law Review, 2017, vol. 5; S.K. Mehra, Antitrust and the Robo-Seller: Competition in the Time of Algorithms, in Minnesota Law Review [online], 2016, vol. 100 [cit. 17.03.2019]. Available at: http://www.minnesotalawreview.org/wp-content/uploads/2016/04/Mehra_ONLINEPDF1.pdf; M.T. Patakyová, Artificial intelligence and bid rigging, in EU business law and digital revolution: selected studies from new fields of technology, Györ: Széchenyi István Egyetem, Deák Ferenc Állam- és Jogtudományi Kar Nemzetközi Köz- és Magánjogi Tanszék, 2019.
[19] C-74/14, Eturas and Others, Judgment of 21 January 2016, EU:C:2016:42, §43-45.
[20] C-194/14 P, AC-Treuhand/ Commission, Judgment of 22 October 2015, EU:C:2015:717.
[21] Decision of the AMO of 07.08.2014 No 2014/KH/1/1/023 and decision of the Council of the AMO 12.02.201 No 2015/KH/R/2/005.
[22] In the conditions of the theory of criminal law in the Slovak Republic, fault is constantly perceived as an internal psychological relationship of the offender to other requisites of the crime (i.e., to other features of the subject matter of the crime). E.g., E. Burda, J. Čentéš, J. Kolesár, J. Záhora et al., Trestný zákon. Všeobecná časť. Komentár, I. diel. 1. edition, Praha, C.H. Beck, 2010, p. 114.
[23] A. Beleš, Related criminal offenses to public procurement [Trestné činy súvisiace s verejným obstarávaním], in Casopis pro Pravni Vedu a Praxi [online], 2021, vol. 29, no. 1. Available at: https://www.scopus.com/inward/record.uri?eid=2-s2.0-85105465226&doi=10.5817%2FCPVP2021-1-7&partnerID=40&md5=b85ab8f48fa71fdbf10c78b966e06f7a.
[24] The Criminal Code also distinguishes the term extremist group (in the sense of section 129 para. 3), but its definition has no further meaning for the purposes of the submitted contribution.
[25] Section 129 para. 2 CC.
[26] Section 129 para. 4 CC.
[27] Section 129 para. 5 CC.
[28] See, for example, the Resolution of the Supreme Court of the Slovak Republic 2 Tost 8/2012 from 09.05.2012. In the present case, the group’s activities were assessed in the absence of strict rules inherent in criminal groups (with regard to planning and coordination in order to achieve the objective) and it was therefore only possible to consider that group as an organized group.
[29] In these cases, the legislator penalizes those situations where the offender has committed a crime as a member of an organized group (e.g., within the meaning of Section 377 para. 2 CC) or as a member of a dangerous grouping (e.g., within the meaning of Sections 147 para. 3, 155 para. 3 or 182 para. 4 CC). It is the second group of cases under the Criminal Code that is much more numerous, as it covers both cases of criminal offenses committed by both a member of a criminal group and a terrorist group.
[30] The wording of the said criminal offense in the sense of Section 296 of the Criminal Code is: „Any person who establishes or masterminds a criminal group, is its member, actively participates in it or supports it shall be liable to a term of imprisonment of five to ten years”.
[31] The wording of the said criminal offense in the sense of Section 297 of the Criminal Code is: „Any person who establishes or masterminds a terrorist group, is its member, actively participates in it or supports it shall be liable to a term of imprisonment of ten to fifteen years”.
[32] This is also confirmed by the established decision-making activity, see e.g., R 29/2018 (Collection of opinions of the Supreme Court and decisions of courts of the Slovak Republic 3/2018). [online]. Available at: https://www.nsud.sk/data/att/e13/129155.b0e506.pdf. Visited on: 29.08.2021. At the time of finalization of the contribution in question, the opinion of the Criminal Law College of the Supreme Court of the Slovak Republic on the unification of the interpretation of the features of a criminal offense pursuant to Section 296 of the Criminal Code was also in process of creation (preliminary designation Tpj 40/2021).
[33] Compare Section 129 paras. 6 and 7 CC.
[34] E. Burda, J. Čentéš, J. Kolesár, J. Záhora, et al., Trestný zákon. Osobitná časť. Komentár, II. diel. 1. edition, Praha, C.H. Beck, 2011, p. 960 et seq.
[35] P. Šámal et al., Trestní zákoník, 2. edition, Praha, C.H. Beck, 2012, pp. 1239-1240.
[36] That provision reads as follows: „An act committed by a natural person shall carry criminal liability only in case of intentional fault, unless it is explicitly stated in this Act that fault by negligence is sufficient”.
[37] Correction through the fault of the offender is possible in particular in cases where the correction through causation is not sufficient. Fault is also perceived as an internal corrective of causality in the sense of the doctrine of criminal law.
[38] Pursuant to Section 4 para. 3 of the Act on CLLP, a mechanism has been established, practically a material corrective, which stipulates the circumstances in which the actions of the relevant person are not attributed to a legal person.