By order of 20 May 2022, the GIP (Judge for the Preliminary Investigations) of the Court of Milan reaffirmed the subjection to criminal liability under Legislative Decree 231/2001, for acts of crime committed by its own employee, of the company even if it is based abroad and in Italian territory has only its branch office.
Table of Contents
- Reaffirmed criminal liability under Legislative Decree 231/2001 of company with headquarters abroad and branch office in Italy
- The right to a translation of the formal notification into a foreign language
- Being subject to severe sanctions must be accompanied by the highest guarantees for the exercise of the right of defence
- The inescapable need for a technical defense operated by professionals
- Regulatory Framework
- What can Studio A&P do
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1. Reaffirmed criminal liability under Legislative Decree 231/2001 of company with headquarters abroad and branch office in Italy
This is a well-established principle in jurisprudence: the circumstance that a company is based abroad does not preclude it from being indicted under Legislative Decree 231/2001 for a crime (obviously falling within the list of predicate crimes under the same Legislative Decree 231/2001) committed on Italian territory by its own top management or employee.
The consequence is that, in order not to incur the serious sanctions of Legislative Decree 231/2001, even companies with their registered office abroad that operate in the Italian national territory will have to adopt a MOG 231 or an organisational model that assesses and prevents the occurrence of the crimes involving the application of Legislative Decree 231/2001.
2. The right to a translation of the formal notification into a foreign language
The fact that the foreign company is subject to criminal proceedings, which may lead to the application of the serious sanctions provided for in Legislative Decree 231/2001, on the other hand, also requires strict observance of the guarantees that are placed to protect the right of defence in criminal proceedings.
Therefore, observed the GIP of Milan in its order of 20 May 2002, the foreign company must be recognised
“the fundamental guarantees due to the defendant in criminal proceedings, subject to the compatibility clause, so that the proceedings against the entity are also brought within the scope of the constitutional principle of due process. It is a primary guarantee accorded to the defendant in the framework of criminal proceedings, in accordance with constitutional provisions and supranational regulations, that if he is a foreign national, he is made aware of the main documents of the proceedings in the language he knows”.
In detail, the Milanese judge observes
“it seems inevitable that reference should be made to the language known by the legal representative or, in any case, by the person in charge of the Italian representation (regardless of its formal identification in terms of a branch or branch office)”
Therefore, the formal notification of administrative offence under Legislative Decree 231/2001 must be translated either into the language of the country where the foreign company is headquartered or into a language known to its legal representative or the person in charge of the Italian representation.
Not even, the Milan GIP argues, can the fact that the foreign company had participated in a tender in Italy be considered as a circumstance that can be considered as a deterrent for the purpose of proving that the entity or rather its representative was able to understand the Italian language and therefore to be fully aware of the notification of the administrative offence.
The important principle of law affirmed by the Judge of the Preliminary Hearing in Milan is therefore that
“the company under foreign law, called upon to answer for the administrative offence for which it is allegedly responsible by means of the Italian representation, must be recognised as having the right to receive the fundamental acts of the proceedings (in particular, the notification pursuant to Article 59 of Legislative Decree 231/2001), in such a form as to allow the legal person the useful exercise of the faculties and rights to which it is entitled”.
3. Being subject to severe sanctions must be accompanied by the highest guarantees for the exercise of the right of defence
The ordinance of 20 May 2020 certainly deserves appropriate reporting and also applause. If, as we have seen, it is by now unquestionable that a company based abroad is subject to the very serious sanctions provided for entities under Legislative Decree 231/2001, it seems right that the same entity should be guaranteed all the guarantees and the full exercise of the right of defence that the Italian regulations, but also the supranational ones, guarantee to the subject undergoing criminal proceedings on Italian territory.
Maximum, therefore, are the guarantees that must be recognised to the foreign entity, in fact, the GIP observes
“Pursuant to Articles 34 and 35 of Legislative Decree 231/2001, the legal person, who is charged with the administrative offence resulting from a crime, must be recognised with the fundamental guarantees due to the defendant in criminal proceedings, subject to the compatibility clause, so that the proceedings against the entity are also brought within the scope of the constitutional principle of due process”.
4. The inescapable need for a technical defense operated by professionals
The axiom of serious liability, in the event that the liability of the entity is recognised, but always in the presence of the highest guarantees, emphasises the need for the foreign company operating on Italian territory to entrust its protection and defence to professionals who are able to master the often complex regulations of Legislative Decree 213/2001 and of the regulations governing criminal proceedings in order to ensure maximum respect for guarantees.
The serious liabilities under the profile of pecuniary sanctions and those prohibitive or limiting the performance of the activity, which may result from the charges under Legislative Decree 231/2001, impose the unavoidable need for the foreign company, operating in Italian territory, avails itself of the advice of experienced professionals who assess in advance the need for the adoption of a MOG 231 or a similar organisational model that limits the liability of the entity and likewise, in assumption of notification of the offence, are able to invoke the highest respect for the guarantees and the right of defence that the criminal trial recognises.