The Legislative Decree n. 231/2001 turns twenty: this is why it is so important

The Legislative Decree n. 231/2001, which introduced the “regulation of the administrative liability of legal persons, companies and associations, including those without legal personality, under article 11 of Law n.300, September 29, 2000”, turns twenty.

It’s a crucial anniversary because this legislation has allowed the Italian legal system to overcome the principle of “societas delinquere non potest”, that is, “a company cannot commit a crime”.

Although the Legislative Decree n. 231/2001 was initially applied only to some willful crimes, over time, the legislator has expanded its range of action by including further “predicate offenses”, i.e., the types of offenses that can cause the body’s liability. To date, this particular category includes about five hundred heterogeneous offenses, such as crimes against the Public Administration (the first to be introduced), corporate and environmental crimes, crimes related to accidents at work, IT crimes and, more recently, tax crimes.

The extension of the applicability of the Legislative Decree n. 231/2001 has sensitized companies – especially those of medium-large size – to implement efficient internal compliance systems resulting from adopting specific Organizational Models. The latter must be constantly updated while appointing the Supervisory Body guarantees the verification of the application by the model’s recipients, as well as the model’s adequacy and effectiveness.

Organizational Models: a valuable tool for avoiding the responsibilities of a crime under the Legislative Decree n. 231/2001

Companies that adopt Organizational Models have an essential tool at their disposal to avoid liability for a crime according to the Legislative Decree n. 231/2001. Several cases addressed by the jurisprudence and ending with the acquittal of the company precisely because its Organizational Model was valid confirm such a thesis. However, this is a topic that we will discuss more thoroughly in the future.

It is also important to point out that Confindustria recently published its updated guidelines regarding the creation of Organizational Models, hoping to “inspire companies in the construction of their model and, for the jurisprudence, to enhance the organizational efforts made by the companies to align themselves with the provisions of the Decree 231.”

The aforementioned Supervisory Body actively deals with the Legislative Decree n. 231/2001, which is why more and more medium-large companies are equipping themselves with such entity, in view of the growing attention the case law shows in relation to the Body’s centrality in internal control systems.

More specifically, the Supervisory Body receives the so-called “information flows” from the various corporate functions. It then sends the reports to the top management, the Board of Directors and the Board of Statutory Advisors. Hence, the Supervisory Body provides these entities with a constantly updated representation of the state of health of the corporate control system.

It is also worth reporting a recent sentence by the Court of Milan on the well-known Monte dei Paschi di Siena case, which saw the bank’s Chairman and Chief Executive Officer being convicted of false corporate communications and stock manipulation. The fine was 800 thousand euros.

The court was unequivocal regarding the liability of the entity, explaining that, in the analyzed timeframe, “the Supervisory Body, despite having penetrating powers of initiative and control, […] substantially omitted the necessary investigations (which were functional to the prevention of repeated and undisturbed crimes), despite the relevance of the issue as per the inspections of the Bank of Italy (of which the SB was aware) and has even risen to judicial challenge blaming BMPS[…]”

And again: “The Supervisory Body witnessed the events passively, limiting itself to insignificant acknowledgments, in the spiraling of events (from the alarming press reports to the judicial debacle) that a more prudent exercise of control would have averted. Thus, unfortunately, it was not and all that remains is to detect the body’s omitted (or at least insufficient) supervision, which founds the organizational fault referred to in article 6, Legislative Decree n. 231/2001.”

This sentence again confirms the centrality of the Supervisory Body in monitoring and verifying the adequacy and effectiveness of the corporate compliance system.