Parental liability doctrine and environmental crimes: limits and perspectives

Abstract

In the context of European Environmental Law, Directive 2008/99/EC mandates Member States to institute corporate criminal liability for environmental offenses. However, there's uncertainty within the Directive regarding whether Member States should ensure that parent companies are held accountable for environmental crimes committed by their subsidiaries and, if so, under what conditions. This matter gains significance as numerous studies indicate that, in the absence of any form of effective parental liability, companies may externalize the risk of penalties by incorporating hazardous activities into separate legal entities. To curb such potentially exploitative practices, the paper scrutinizes the applicability of the "parental liability doctrine" in EU environmental criminal law. Despite this exploration, the author argues against the expansion of this doctrine, advocating instead for a fault-based form of parental liability, as the one outlined in the Proposal for a Directive on Corporate Sustainability Due Diligence. This form of liability is linked to compliance deficiencies and, consequently, aligns with the culpability principle. Furthermore, it would encourage parent companies to institute compliance programs, aiming primarily to prevent subsidiaries from engaging in criminal activities