Skip to content Assonime, the association of Italian joint-stock companies, acknowledges the liability of Italian companies for the crimes committed by their employees abroad.
However, before deciding which discipline applies, a distinction must be made. Indeed, it must be ascertained whether the offence was committed entirely abroad or a part of it in Italy.
Liability for offences committed entirely abroad
If the first scenario occurs, i.e. the offence was committed entirely abroad, the company can only be held liable if certain conditions involving Italian case law are met, according to Article 4 of Legislative Decree 231/01.
Examples include the possibility of applying Italian jurisdiction to the natural person and the fact that the company’s head office is in Italy (the head office means the management and organisational centre of the legal entity’s affairs, not simply the registered office). In addition, there must be a request from the Minister of Justice, if necessary, and the foreign State must not have already taken legal action against the company.
Liability for an offence committed partly in Italy
If, on the other hand, part of the offence was committed in Italy, the entire conduct will be subject to Italian law and jurisdiction, without the need to apply the constraints of Article 4. The judiciary has often extended this principle also in cases where the offence was conceived in Italy or ancillary acts were performed in the country, although the main conduct took place abroad.
Conclusions
Thus, a company based in Italy can be held liable for an offence committed abroad by a seconded employee if the conditions of Article 4 are met and if the company benefited from the offence.
However, case law has interpreted Decree 231 broadly, allowing even a small part of the offence to be considered committed in Italy, thus allowing the Italian jurisdiction to intervene.
According to Assonime, this described scenario is more likely when the employees posted abroad have managerial roles in the parent company. Indeed, this could increase the likelihood that part of the crime is conducted in Italy.
To prevent these risks, Assonime recommends adopting a globally applicable code of ethics, identifying specific risks for each process at local level and integrating specific procedures for posted workers into the organisational model, paying particular attention to information flows and training.