In Italy, D.Lgs. n. 231/2001 introduced the principle of the administrative responsibility of companies for the crimes committed by the leaders and persons subject to their supervision (employees, suppliers, etc.) in the interest or for the benefit of the same institution.
The offences are those specifically indicated by Legislative Decree 231/01 to art. 24 and following, including for example:
- organized crime offences;
- corporate offences
- corruption,
- violation of work safety regulations,
- environmental offences
- tax offences, etc.
However, the corporation may be exempt from liability if it proves to have fulfilled on time all obligations and procedures provided for by the aforementioned decree.
Specifically, reference is made to the preparation of a suitable and updated organisational and management model that dictates internal rules and procedures for crimes prevention. These include the establishment of an organization that supervises the implementation of and the compliance with the aforementioned model.
The model, correctly prepared and effectively implemented, could avoid significant pecuniary and interdictive sanctions.
Recently, the Court of Cassation -Criminal Section VI- with the sentence n. 11626/2020, affirmed that even foreign companies, if they operate in Italy, are subject to the provisions and responsibility provided for by Legislative Decree 231/2001. According to the Court, it makes no distinction between companies based in Italy and those based abroad. In addition, it is a responsibility, albeit autonomous, derived from the crime and therefore the jurisdiction should be evaluated according to the prerequisite crime. The fault in the organization, and therefore the preparation of unsuitable models, taking place abroad is not relevant.
Therefore, if the company operates in Italy, it is subjected to the obligation to comply with Italian law and, in particular, the penal one, regardless of its nationality or the place of its registered office and regardless of the existence of otherwise, in the Country to which they belong, of regulations that govern the same matter in a similar way, also with regard to the preparation and to the effective implementation of organizational and management models aimed at preventing the commission of crimes that are the source of administrative liability of the corporation itself.
The Court of Cassation then specified that, otherwise, the inapplicability to foreign companies of the rules and obligations provided for in Decree 231 and the consequent exemption from administrative liability would result in an undue alteration of free competition compared to national entities, allowing the first to operate in Italy without having to sustain the costs necessary for the preparation and implementation of suitable organizational models.
This important decision should therefore be taken into account by all companies operating or intending to operate in Italy.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
