Legislative Decree No. 231/2001 introduced for the first time in the Italian legal system the liability of entities for offences resulting from the commission of a crime, committed in the interest or to the advantage of the company itself by directors, managers, employees, and collaborators. The offences entailing such autonomous and direct liability of entities (‘predicate offences’) are all listed in Section III of Chapter I of Legislative Decree No. 231/2001, and include, among others, involuntary manslaughter, grievous and very grievous bodily harm committed in violation of occupational health and safety regulations, corruption, computer crimes, environmental and tax offences. The company declared liable pursuant to Legislative Decree No. 231/2001 is subject to: pecuniary and prohibitory sanctions (including disqualification from exercising the activity; suspension or revocation of authorisations, licences or concessions functional to carrying out the activity; prohibition from contracting with the Public Administration; exclusion from facilitations, financing or contributions and possible revocation of those granted; prohibition from advertising goods or services); publication of the conviction and confiscation of the profit deriving from the offence. The liability of companies may, therefore, entail serious financial and reputational consequences and may also affect the normal operation of the company. Disqualifying sanctions, in fact, could jeopardise the company’s ability to manage its business, with negative repercussions on both company performance and the economic interests of shareholders. Hence the importance of preparing an adequate Organisational Model 231, the adoption of which entails the exoneration of liability for the company that has duly prepared it, but above all implemented it. The adoption of the Model is not compulsory, but it is also strongly recommended for the benefits it offers in terms of preventing ‘predicate offences’ and protecting the company’s reputation. Failure to prepare a suitable Model could constitute a breach of the duties of the company’s directors. In the case of offences committed by persons with apical roles, the company is exempt from liability even if it proves that a Supervisory Board (SB) has been appointed, that the perpetrators of the offence fraudulently circumvented the Model, and that there was insufficient supervision by the SB. As to the contents of the Model, Articles 6 and 7 of Legislative Decree 231/2001 stipulate that it must: 1. identify the company activities within the scope of which offences may be committed through risk analysis, which must be updated every time there are company changes or new ‘predicate offences’ are introduced; 2. provide for specific protocols for the formation and implementation of decisions relating to the prevention of offences and identify ways of managing financial resources to prevent the commission of said offences; 3. provide for a Supervisory Board with autonomous powers of initiative and control to oversee the operation of and compliance with the Model and ensure it is updated; 4. establish information obligations vis-à-vis the Supervisory Board; 5. 5) introduce a disciplinary system to sanction non-compliance with the measures indicated in the Model; 6. provide, pursuant to the new Whistleblowing rules on reporting offences, internal reporting channels, the prohibition of retaliation and the disciplinary system. LEGISLATIVE DECREE NO. 231/2001 INTRODUCES THE LIABILITY OF COMPANIES FOR OFFENCES COMMITTED BY PERSONS WITHIN THEIR ORGANISATION, WHICH CAN BE MITIGATED BY ADOPTING A APPROPRIATE ORGANISATIONAL MODEL 231 AND WITH THE APPOINTMENT OF A SUPERVISORY BOARD Organisational Models 231, Supervisory Bodies and Whistleblowing 28 L’AVVOCATO RISPONDE Whistleblowing legislation updates protections for those reporting wrongdoings DI COSTANZA NUCCI ED EDOARDO TOSCANI*
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