GREECE Trends and Developments Contributed by: Ovvadias S. Namias, Vasileios Petropoulos, Ilias Spyropoulos and Emmanouil Apostolakis, Ovvadias S. Namias Law Firm
ticipate in the criminal proceedings as civil prosecu - tors. It goes without saying that, after this fundamental legal change, the companies concerned hire external consultants or investigators – in practice, mostly spe - cialised lawyers – to prepare a report to clarify possi - ble criminal conduct as well as to determine the circle of potential offenders. On the basis of the report, the decision is made on the part of the company whether to file a criminal complaint – and, if so, against whom this complaint will be filed. In order to prepare the report, an internal investigation is carried out in the company, based on the entirety of the available mate - rial, such as email correspondence, records, docu - ments, balance-sheet rolls, interviews, etc. The most crucial part of the report is the legal assessment and proposal regarding the criminal misconduct that was investigated. The practical relevance of internal inves - tigations after the reform of the Economic Criminal Law in Greece is thus evident. Internal investigations can also be crucial for the purpose of determining the amount of the damage caused by a criminal conduct against the interests of the company or by an agent of the company. This is particularly important in view of the introduction of alternative procedural forms for settling criminal trial in the Greek legal order, ie, criminal conciliation (Arti - cles 301, 302 of the Greek Code of Criminal Proce - dure), plea bargaining (Article 303 of the Greek Code of Criminal Procedure) and satisfaction of the harmed person (Article 381 (2) and 405 (2) (3)). That way, the conduct of an internal investigation, even after the commencement of criminal prosecution, can sim - plify and accelerate the proceedings, which is critical because of the serious delays in the administration of justice in Greece. Furthermore, Article 102 of the Greek Companies Act is equally fundamental in relation to the conduct of internal investigations. Article 102 (1) states that the members of the board of directors shall be liable to the company for any damage incurred as a result of their acts or omissions contrary to their duties. Pursu - ant to Article 102 (4), the liability of the members of the board of directors may be excluded if such acts or omissions are based on expert opinion or assess - ment of an external, independent third party who has relevant expertise.
Board members are often faced with a tough dilemma when there is a suspicion of certain illegal conduct within the legal entity but it is not sufficiently sub - stantiated. The filing of an unsubstantiated complaint, especially if it is directed against a specific person, carries the risk of incriminating board members for the offences of defamation (Article 363 of the Greek Criminal Code) and false accusation (Article 229 of the Greek Criminal Code). At the same time, failure to lodge a criminal and/or civil complaint runs the risk that claims may be brought against the members of the Board under Article 102 of the Greek Companies Act, or even that criminal liability for the offence of breach of trust (Article 390 of the Greek Criminal Code) may be incurred. In this case, an internal investigation by a law firm specialising in criminal law is a one-way street. Based on the findings and legal assessments of the final report, board members will act without the risk of incurring civil or criminal liability. It thus turns out that the investigator’ s final report is important in two respects: • for the prosecution of potential criminal offences within the company; and • to avoid possible legal consequences for the mem - ber of the BoD. Furthermore, Article 45 of the Money Laundering Act (Law No 4557/2018) is of importance. Under this arti - cle, the imposition of administrative fines and other administrative sanctions on legal persons can occur as a secondary effect of a criminal punishment for money laundering, if the money laundering or the predicate offence was committed for the benefit of the legal person. The same applies if the money launder - ing was only made possible due to a lack of or inade - quate supervision of the perpetrator on the part of the legal entity. Administrative sanctions can be very high (sanctions range from EUR50,000 to EUR10 million, with a temporary suspension of operations between one month and two years – possibly even permanent suspension of operations). Article 45 (4) of the Money Laundering Act provides, inter alia, that the cumulative or alternative imposition of the above sanctions, as well as the corresponding sanction assessment, depend on the actions of the
115 CHAMBERS.COM
Powered by FlippingBook