Legislative Decree no. 231/2001 – in compliance with the principles set forth in EU legislation on the prevention of corporate crimes and the assessment of companies’ liability – has determined the liability of companies and legal entities for those crimes committed by subjects representing or acting on behalf of the company or entity.
Companies shall therefore be considered liable for crimes committed by (i) individuals vested with powers of representation, control, direction or management of the company, or (ii) individuals subject to the authority or control of the above-mentioned subjects, when the unlawful conduct has been carried out in the interest of or to the benefit of the company concerned.
Companies shall not be considered liable pursuant to Leg. Decree no. 231/2001 if the following conditions exist:
a) The individual(s) who committed the crime acted in their own exclusive interest or in the interest of third parties not related to the company;
b) The company provides sufficient evidence that the company’s management has adopted and implemented an organizational model and an ethical code in order to prevent the commission of crimes by the company’s representatives, managers and employees submitted to control of the former. The company must also demonstrate that a body has been established within the company for the sole task of controlling the function of and compliance with the organizational model and ethical code (the body in charge of control).
The liability of the company (so called administrative liability of the company) for crimes committed by managers, employees, etc., provided by Leg. Decree no. 231/2001, has an autonomous nature with respect to that of the individual materially responsible for the criminal offense. Even if defined by Decree no. 231 as an "administrative liability," the most prominent doctrine considers said liability as having a criminal nature, partly because it is derived from the commission of criminal offenses, and partly because the evaluation of said liability rests with criminal courts in criminal proceedings.
The types of crimes for which the company is liable are described in articles 24-25 quarter of the Decree.
- Fraud crimes against the State or public bodies or entities;
- Corruption crimes;
- Falsification crimes involving money, credit cards and stamp duties;
- Corporate crimes provided by the Civil Code amended by Leg. Decree no. 62/2001 (article 25 ter*): said category includes crimes concerning false communications, false information in the company’s balance sheets or accounting documents, false registrations, etc.
- Acts of terrorism
The company’s administrative liability pursuant to Leg. Decree no. 231/2001 is regulated with different types of sanctions, including pecuniary sanctions in amounts proportional to the capital of the company, and various prohibitions/revocations (including prohibition of performance of the business, revocation/suspension of licenses, financings, etc.).
The company’s liability shall be ascertained and the applicable sanctions shall be determined by the criminal court competent for the relevant crimes committed. The court may also apply temporary cautionary measures pending criminal proceedings when there are sufficient elements confirming prima facie the company’s liability.
In order to not be considered liable pursuant to Leg. Decree no. 231/2001, the company shall provide evidence that (i) the crimes had been committed only in the interest of or to the benefit of the material author and not of the company itself, (ii) it has adopted and implemented an ethical code for all levels of employees and executives as well as an effective organizational model to prevent crimes and (iii) it has set up a body in charge of control of compliance with said model. The burden of proof is therefore extremely onerous for the concerned company.
The criminal court shall be qualified to evaluate whether said conditions have been fulfilled in practice.
In light of said legislation, it has become a crucial priority for all companies and entities affected by Decree no. 231/2001 to set up a valid and efficient system of control and adopt an ethical code and organizational model with a view to enhancing an effective compliance system to prevent the commission of crimes.
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