An analysis of the offence of negligence resulting in breach of duty committed by the heads of business in the light of the new PIF Directive

Abstract

During the pre-accession period to the European Union, Romania, in order to ensure the protection of European funds, introduced a new title within Law no. 78/2000 through Law no.161/2003: Crimes against the financial interests of the European Union. The present section incriminates the offences against European financial interests as a consequence of the Convention’s and the related enclosed protocols’ transposition.

The subject of our analysis is the last article of this title which regulates the crimes against the financial interests of the EU: the negligence resulting in breach of duty, as a consequence of a crime affecting the European financial interests.

When presenting the European normative acts, which represent the sources of this regulation, the controversies regarding the transposition at the level of the other Member States are revealed and why the institution is abandoned at European level. This last fact raises the problem of the lack of necessity to keep in the Romanian legislation the criminalization. At the same time, the lack of domestic jurisprudence, in almost 18 years after the entry into force of the offence, also gives rise to doubts regarding the rigidity of maintaining an offence that no longer corresponds to any protection of a given social value.

In conclusion, the analysis aims at a comprehensive presentation of the constituent elements of this type of criminal behaviour by referring to the jurisprudential tendencies and the relevant doctrinal opinions along with highlighting the problems that this text implies and the need for a law to abolish this crime.