Het daderschap van de rechtspersoon: Een onderzoek naar het Drijfmestkader als richtinggevend kader voor het daderschap van de rechtspersoon

Abstract

Since 1976, Article 51 of the Dutch Criminal Code (DCC) has provided a basis for corporate criminal liability for – in principle – all offences. However, neither Article 51 DCC nor its legislative history provide an answer to the question regarding the circumstances under which a corporation can be held criminally liable. In the Netherlands, the task of answering this question has been left to the judiciary. Only in 2003, did the Dutch Supreme Court (Hoge Raad) deliver a landmark decision in the Drijfmest case in which it partly answered this question by providing for a guiding, yet open ‘framework’ (‘the Drijfmest framework’) for the establishment of the actus reus of a legal person.

Various uncertainties and ambiguities arise regarding the exact role and meaning of the different components of the Drijfmest framework. Due to these uncertainties and ambiguities, and the questions they consequently raise, together with the – at least, according to some – very open nature of the Drijfmest framework, it has been criticised in scholarship. Criticism has been voiced from the perspective of the principle of legality, a principle that is said to be the cornerstone of Dutch criminal law, and the underlying concept of legal certainty.

Against this background, this study addresses the following twofold research question: I. How is the Drijfmest framework applied in case law and how can its application be assessed, inter alia in light of the principle of legality? II. Considering the answers to the previous questions, should the Drijfmest framework be amended or adjusted and, if so, in what way?

In this study, the application of the Drijfmest framework in practice is examined on the basis of a detailed and structured case law analysis of 300 cases. This analysis results in new insights, concrete guidelines for the application of the components of the Drijfmest framework, two new ‘Drijfmest circumstances’, and a new foundation for the establishment of criminal perpetration of corporations. The study into corporate criminal liability in England and Wales results in a proposal to amend the Drijfmest framework.

This study demonstrates how the Drijfmest framework is applied in case law, that the framework needs to be adjusted and how this can be achieved. In doing so, existing uncertainties are resolved and it is shown how legal certainty can be better guaranteed.