Italiano
The system of Administrative Liability of Companies in case of alleged crimes was considered to be an historic turning-point for Italian Law fifteen years ago. Indeed, because the widespread idea for years had been that only natural persons (Art. no. 27 of Italian Constitution) but not body corporates could commit crimes (societas delinquere non potest), the legislator decided it had to be altered, thus facing the proliferation of the serious pathological event of Corporate crime.
Thanks to Legislative Decree no. 231 of 8th June 2001, Italian judicial system adapted to the several other mainly Common Law systems, considering companies subjected to sanctions when crimes are committed by natural persons in the interest of or for the benefit of the company.
In other words, Italian Law states that companies and corporations might commit crimes and be subjected to sanctions if administrators or employees have committed a certain type of crime – as we may read in the decree, article no. 24 and ff. – and whether the company or the corporation could benefit from the crime.
How can a company – according to decree no.231/2001 – avoid criminal liability when crimes are committed by its administrators (senior positions) or employees?
The answer makes professionals go weak in the knees: “just adopt an adequate Organization Model!”
The model has to classify every possible working activity carried out by seniors or employees and then identify ex ante a list of behavioural rules aimed at preventing crimes.
The existence and the effective fulfillment of an Organization Model can thus enable the company to prove to Superior Council of Judiciary that seniors (or their subordinates) acted in in their own interest or on behalf of a third party, and that they deceitfully eluded corporate rules. Therefore, legal action could be taken only against natural persons and the company would not be incriminated.
The company is responsible for a crime only if (a) the crime has been committed by the specific category of individuals as mentioned in articles no. 5 and 6 of the Decree and (b) the crime has been committed in the interest of or for the benefit of the company.
Therefore, a company is considered liable for the crime committed by a natural person only when it can tangibly benefit from the crime.
In accordance with the established case law, a crime is committed in the interest of a company not only when it falls within the company policy but also when it occurs because the company lacks of specific control tools which could prevent committing crimes.
A mere advantage occurs when the company obtains a pecuniary benefit from the crime as well.
To sum up, if the crime is committed by administrators or employees in the interest of or for the benefit of the company, the latter might be incriminated of administrative liability at the trial against the natural person who has actually committed the crime.
During the trial, the company could face heavy sanctions, both after the final verdict and in interlocutory proceedings.
According to Article no. 6 Paragraph 1 Decree no. 231/2001 a company is not liable for a crime if it furnishes the following evidence:
The system of Administrative Liability of Companies in case of alleged crimes was considered to be an historic turning-point for Italian Law fifteen years ago. Indeed, because the widespread idea for years had been that only natural persons (Art. no. 27 of Italian Constitution) but not body corporates could commit crimes (societas delinquere non potest), the legislator decided it had to be altered, thus facing the proliferation of the serious pathological event of Corporate crime.
Thanks to Legislative Decree no. 231 of 8th June 2001, Italian judicial system adapted to the several other mainly Common Law systems, considering companies subjected to sanctions when crimes are committed by natural persons in the interest of or for the benefit of the company.
In other words, Italian Law states that companies and corporations might commit crimes and be subjected to sanctions if administrators or employees have committed a certain type of crime – as we may read in the decree, article no. 24 and ff. – and whether the company or the corporation could benefit from the crime.
With 2009 and August 2011 reforms, the Italian legislator considered companies prosecutable for the so called ‘corporate negligence’ ex Lgs. Decree no. 231/2001 also for safety and environment-related crimes.
As we said before, nowadays, not only upper management but the company is also liable for crimes and will be subjected to the following administrative and disqualification sanctions (Article no. 9 Lgs. Decree no. 231/2001):
Providing the company with Organization Model 231 may clarify the criminal liability of the upper management (excluding criminal responsibility for persons who have not committed the crime), thus avoiding the concept of interest and advantage for the company which derives from the crime actually committed by administrators or employees (articles no. 5 and 6) and also preventing the company from facing the consequences of the abovementioned Article 9.
Bonsegna Law Firm gives companies the legal advice needed in order to endow a company with an Organization Model, a Code of conduct and all the Protocols needed to adapt to Decree 231/2001 and have significant advantages which guarantees to companies:
