LEGISLATIVE DECREE no. 231/01 Legislative Decree no. 231 introduced for the first time in the Italian legal system the principle of administrative liability of legal entities for offences committed. Formally administrative liability of legal entities is basically of a criminal nature in that it: (i) derives from an offence, (ii) is ascertained under the guarantees of criminal proceedings, and (iii) could result in the application of punitive sanctions (including final interdiction from conducting the business). It is autonomous: in addition to the liability of the individual who materially carried out the offence. Individuals + legal entities A form of liability is introduced for companies and other associations involving sanctions of a formally administrative nature but particularly punitive and thus of a substantially criminal nature. The Company is liable for crimes committed by individuals who hold top management functions (or individuals subject to their direction and supervision) in the interest or for the advantage of the corporate body itself.
Liability requirements The requirement for Company liability is the carrying out of: specific types of offence by individual who hold top management functions or individuals subject to their direction and supervision in the interest or for the advantage of the Company as well as: failure to apply suitable measures to prevent the crime from being committed.
Types of crime The crimes envisaged by Legislative Decree 231/2001 can be divided into four major groups: 1. Crimes committed in detriment of the Public Administration 2. Corporate and financial offences 3. Manslaughter and serious or very serious personal injury due to negligence committed in breach of occupational safety rules 4. Other crimes (e.g. IT offence, crimes for terrorist purposes) New crimes, such as infringement of trademark and patent laws, criminal association, and encouragement of illegal immigration, have recently been introduced. Other legislative proposals have been made to extend the range of crimes, including certain crimes relating to protection of the environment (pollution generated by industrial plant, waste management), privacy and tax crimes.
Sanctions MONETARY PENALTIES DISQUALIFICATION SEIZURE Monetary penalties are determined in accordance with the gravity of the crime committed and the degree of liability recognised in charge of the legal entity, taking into account the activities implemented by the legal entity to mitigate or prevent the occurrence of unlawful acts. MONETARY PENALTIES ARE APPLIED UP TO A MAXIMUM OF 1,550,000 The main disqualification sanctions concern; suspension or revocation of authorisations, licences and concessions which are functional to the commission of the offence; prohibition of contracting for work with the Public Administration; exclusion from or revocation of public aid, financing, contributions and subsidies; prohibition of advertising goods and services. of the price or profit resulting from the crime committed. PUBLICATION OF THE JUDGEMENT
Exemption conditions Legislative Decree no. 231/01 attributes juridical importance to the Models. Their implementation and proven effectiveness in preventing crimes is the tool used to mitigate or exclude liability by the company. The Entity may therefore be exempted from any liability if it proves that: it has adopted and effectively implemented suitable MODELS to prevent the commission of the crime; it has entrusted to its OWN INTERNAL SURVEILLANCE BODY, having autonomous powers of initiative and control, the task of overseeing implementation and compliance with the Models; the individuals who have committed the crime have fraudulently evaded the Models there has not been a lack or insufficient degree of surveillance Adoption of the Models and their suitability for preventing crimes, though not an obligation for the Entity, is a tool for limiting or ruling out the criminal involvement of the company.
Subjects and responsibilities Administrative body: The subject responsible for formal adoption and following effective implementation of the Model is the managing body, i.e. the body with powers of administration: the Board of Directors. Top Management: Though not expressly specified in the Decree, Top Management, i.e. the executive managers at various levels, is responsible for the actual implementation of the Model and compliance with the rules and regulations set forth therein. It also ensures that the employees subject to its direction and control behave in accordance with the rules and regulations specified in the Model.