The fifth note in this series observed, in passing, that the directive does not require Member States to operate a negotiated resolution mechanism, and that whether corporate cases are resolved through ordinary prosecution or through a defined cooperation framework is a national choice.
The sixth note then set out the mitigating circumstances at Article 16, two of which - the effective compliance programme and rapid voluntary self-disclosure with remediation - reward the cooperation that comes forward. This note joins the two observations.
A mitigator that rewards self-disclosure operates most effectively where national law provides a procedure through which the disclosure and cooperation are received and credited; where that procedure is absent, the incentive created by Article 16 has a significantly reduced practical effect. The concern here is what the directive says about negotiated resolution, what it leaves to the Member State, and what the Romanian procedural framework currently offers the institution that decides to disclose.
The provision: recognition without obligation
The directive contains no article on negotiated resolution, and imposes no duty to create one. It addresses the subject directly in three places nonetheless. Recital 27 records that non-trial resolutions "are being applied in the context of corruption offences and often viewed as a pragmatic and efficient way to resolve cases that would otherwise require a significant amount of time and resources to investigate and prosecute before reaching a court", while noting that such resolutions "might also present some challenges" that Member States are encouraged to take into account. The directive's data-collection provision requires Member States to report the number of non-trial resolutions for the offences within its perimeter - but only "when such mechanisms exist in a Member State". And recital 31 places a condition on the discretion that any such mechanism implies: discretionary powers under national law not to prosecute "should be exercised in accordance with clear rules and criteria", directed at the need for effective, proportionate and dissuasive penalties and at the effectiveness of the judicial process.
Although the recitals do not themselves create operative obligations, they illuminate the objectives pursued by the directive and the context in which Article 16 should be interpreted.
Read together, these passages fix the directive's posture. The mechanism is optional; its existence is a matter the directive expects to be made transparent through published statistics; and where it exists, the discretion it confers is to be bounded by clear rules rather than exercised case by case.
The link to Article 16, and to internal investigations
Comparable negotiated settlement mechanisms have also been introduced in several European jurisdictions, albeit through different procedural models.
The relevance to the mitigators is direct. Article 16 rewards the institution that maintains effective controls and that, upon discovery, discloses and remediates. But a mitigating circumstance operates at sentencing: it reduces a penalty within a prosecution that proceeds to its conclusion. What it does not by itself supply is a route by which the disclosing institution and the authority can resolve the matter otherwise than by conviction. The two largest enforcement systems pair the mitigator with precisely such a route. In the United States, voluntary self-disclosure, full cooperation and timely remediation can yield a declination - the case is not charged - or, failing that, a resolution short of conviction; in the United Kingdom, the same conduct opens the deferred prosecution agreement, under which prosecution is suspended on conditions and no conviction is entered. In both, the inducement to disclose is the prospect of a resolution the mitigator alone cannot deliver.
A regime that enacts the Article 16 mitigators but offers no resolution mechanism gives the institution a discount on a conviction it will still carry, rather than an alternative to the conviction itself. That is a materially weaker inducement to come forward, and one an internal investigation oriented to self-disclosure must weigh from the outset.
The Romanian framework
Romanian criminal procedure does contain a form of negotiated justice. The plea agreement (Articles 478-488 CCP) allows the prosecutor and the defendant to agree the acknowledgment of guilt and the penalty, for offences punishable by a fine or by imprisonment of up to fifteen years, where the evidence gathered supports the existence of the act and the defendant's guilt. But its character is that of a guilty-plea agreement, not a deferred prosecution: it is confirmed by the court and results in a conviction and a negotiated sentence. It does not offer resolution without conviction, and it is neither conditioned on nor calibrated to the institution's remediation, its compliance-programme overhaul, or a monitoring obligation.
The prosecutor's power to decline prosecution on public-interest grounds (Article 318 CCP) is confined by statutory penalty thresholds and judicial confirmation and will rarely provide a realistic avenue for resolving substantial corporate corruption cases falling within the directive's scope.
What Romanian law currently lacks is a negotiated mechanism comparable to a deferred prosecution agreement through which a legal person that discovers, discloses and remediates a corruption offence may resolve the matter on agreed conditions without a criminal conviction.
From the perspective of EU law, the central question is not whether Article 16 obliges Member States to establish negotiated resolution mechanisms, but whether the practical effectiveness of the self-disclosure mitigators is materially reduced where no procedural framework exists through which cooperation can influence the prosecutorial outcome.
Closing observation
While leaving the institutional choice to Member States, the directive nevertheless signals a favorable view of negotiated resolutions. It records their pragmatic value, requires transparency where they exist, and emphasizes that any prosecutorial discretion should be exercised pursuant to clear and publicly accessible criteria.
This article is part of the EU Anti-Corruption Directive Romania Corporate Exposure Hub.