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Lun, 27 Mag 2019
LE RUBRICHE


GLI INTERVENTI
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LE NOTIZIE


CORPORATIONS AND CRIMINAL LIABILITY IN ITALY di Marina Zalin, Caterina Lops e Ginevra Tridente



1. Corporate criminal liability under the Italian Legislative Decree no 231/2001

With the adoption of Decree no. 231/2001 (hereinafter "the Decree") the Italian government introduced the corporate liability of legal entities, in case of crimes committed by subjects that act on behalf of the company, such as representatives, executives, directors, subordinates, and persons who – even de facto – carry out management or control activities.

Under the Decree, corporations may be held liable for a specific list of offences (articles 24 to 25 undecies), committed – or even attempted – in the interest or for the benefit of the entity.

In the event that one of the offences mentioned in the Decree is committed, both natural person who perpetrate the offence, and legal person in which interest/benefit the offence was committed, will be prosecuted. Therefore, the proceeding will entail the verification of the individual's criminal liability as well as the administrative liability of the company.

According to article 5, where the offence was carried out in the sole interest of the natural person, or in the interest of third parties, the company cannot be held liable.

Penalties specifically provided under the Decree include:

- pecuniary fine;
- ban from business activity (temporary or permanent, in case of particularly relevant or repeated violations);
- withdrawal or temporary suspension of licences, permits or authorizations linked to the violation;
- prohibition to contract with the Public Administration;
- disqualification from advertising goods and services;
- disqualification from financial aid, subsidies and contributions;
- mandatory confiscation of the price or profit deriving from the unlawful conduct;
- publication of the judgment.
The sanctions are applicable only when expressly provided for by the Decree.


2. Requirements for the exclusion of the corporate liability

Companies shall not be considered liable if the individual committed the crime in their own sole interest, or in the interest of third parties (not linked to the company).

Furthermore, the company's liability shall be excluded where proven that the government board had adopted and efficiently implemented – before the offence was committed – a Compliance Program ("Modello di Organizzazione e Gestione") aimed at preventing the perpetration of the offences provided for by the Decree.
The company must have appointed an internal supervisory body, the Compliance Officer ("Organismo di Vigilanza e Controllo"), with the function of monitoring the effective implementation of the Compliance Program, and its constant updating. For the administrative liability to be excluded, it must be proven that this appointed Compliance Officer did not omit to exercise its control duty.

In order to be considered efficiently implemented, the Compliance Program has to:
- specifically point out the area of risk;
- provide specific procedures concerning the Compliance Officer's decision-making process and the implementation of its decisions;
- provide an appropriate financial management, in order to prevent the perpetration of financial crimes;
- provide a specific duty to inform the Compliance Officer in case a violation of the Compliance Program occurs.
- provide disciplinary sanctions.
Liability shall also be excluded where the offence was committed by the natural person with the fraudulent intention of avoiding the implemented Compliance Program.

The Compliance Program shall contain the identification of the areas of activity where there is a chance of perpetration of the listed crimes (hereinafter "Risk Areas"), the identifications of appropriate procedures aimed at preventing the mentioned crimes, the duty of each division of the company to report violations and provide relevant information to the Compliance Officer. Disciplinary sanctions shall also be provided, in order to punish each violation of the procedures.


3. Crimes punished under the Decree

Based on the principle of legality, legal entities can be held administratively liable only where one of the crimes expressly mentioned by the Decree is committed.
Offences can be grouped into several categories listed below:

- Offences against the Public A.....

 

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