With judgement no. 33976/2022, the Court of Cassation reiterated the interpretation of the criteria of interest and advantage relating to predicate offences committed with negligence, by specifying that, given the lack of systematic violations and in view of a ‘minimal' advantage, limited cost savings can exclude the corporate's interest and/or advantage and, consequently, the corporate liability, provided that the violation occurs in a context of general corporate's compliance with all safety measures and does not fall within a significant area of risk.
On September 15th, 2022, the Court of Cassation published the grounds of decision of a very controversial judgment on the corporate criminal liability. The Court of Cassation's intention is to avoid an automatic application of art. 5 of Legislative Decree no. 231/2001 (which provides that the entity is responsible for crimes committed, in its interest or for its benefit, by persons holding senior positions or their subordinates or by those who exercise management and control even de facto) since this would lead to the corporate's immediate conviction for any lack of compliance with preventive measures even if they are isolated.
In the case at hand, the Court of Cassation was called on to rule about a judgement of the Court of Appeal of Venice which confirmed the first instance conviction of a company deemed liable for the offence resulting from a crime under art. 25 septies, paragraph 3 of Legislative Decree no. 231/2001, with reference to some serious injuries sustained by an employee during the performance of his duties.
In that specific case, the company had been convicted by the court of merits, of an infringement of work safety rules, committed by the chairman of the board of directors in relation to a crime referred to under art. 71 of Legislative Decree no. 81 of 2008, on the grounds of negligence, imprudence, and malpractice, for giving the worker equipment that lacked in safety requirements. In this case, such infringement resulted from an accident that occurred at work to a seasonal worker who slipped on the wet floor and accidentally put his left hand inside the grape harvesting basin, which lacked the required protective grid.
On the other hand, the corporate liability, with respect to the predicate offence, arose from the advantage of the cost saving obtained through its failure to install the above-mentioned safety device. Such circumstance had been deemed as sufficient to claim the objective criterion of the entity's chargeability, insofar as it was connected to its non-compliance with any precautionary measures. In particular, the court of merits ascertained a cost saving of € 1,860.00, which certainly was minimal if compared to the higher amount allocated for the adjustment of the accident prevention system, but nevertheless substantial.
Therefore, the company appealed the decision before the Court of Cassation claiming the existence of defects essentially related to the modalities through which the advantage under art. 5 of Legislative Decree no. 231/2001 occurred especially in cases where there is no systematic violation of workplace safety regulations.
The Court of Cassation, first referred to one of its principles contained in a recent judgment to highlight that “for the purposes of the corporate criminal liability, it is not necessary a systematic infringement of workplace safety rules”, since such liability may be inferred also in case of occasional violations if there is factual evidence of the connection between the infringement and the corporate's interest.
Subsequently, the Court referred to the principle that was also the subject-matter of a previous decision, so-called “Canzonetti” judgment, which established that “the minimal amount of savings may be relevant to exclude the interest and/or advantage and, therefore, the corporate liability, whenever the infringement occurs in a context of general compliance by the company with the workplace safety regulations”. However, the Court deemed it opportune to limit the application of this principle exclusively to the case where the infringement does not fall within a significant area of risk, because “otherwise it would be very difficult to argue the lack of fault in the organisation with respect to an infringement of a precautionary measure essential for the proper functioning of the safety system“.
The Court of Cassation, consequently, by applying the above-mentioned principles, rejected the appeal deeming the requirement of minimal saving as non-existent, and specifically highlighting that despite the lack of systematic violations and the minimal savings for the company, the infringement of the aforesaid precautionary measure was essential to the proper functioning of the safety system of an entire work area. Therefore, in this case it is not possible to claim the lack of fault in the organisation.
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