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Criminal offences and sanctions provided for by Italian Legislative Decree 231/01

A guide on the main criminal offences and sanctions provided for by the Italian Legislative Decree 231/01.

Table of Contents

Italian Legislative Decree 231/01 has established the Organizational and Management Model 231. As we have seen, this model is a valid tool to provide protection for companies from a specific criminal offences and in the event of legal disputes.

This article will discuss the main criminal offences related to Model 231.

What are the offences provided in Legislative Decree 231/01?

First and foremost, it must be remembered that there is a limited number of offences for which Companies are held accountable. What does this mean?

In other words, Companies cannot be punished for any offence committed in the framework of the performance of their activities, but only for certain offences identified by the legislation and indicated by law.

Furthermore, the Decree is applicable only for predicate offences, i.e. a series of criminal offences which, if committed by individuals affiliated with the company, can lead to administrative sanctions for the company itself. This legal approach aims to make organizations responsible for the actions of their managers, employees or collaborators.

Further clarification should be made. In fact, the list of punishable offences that can give rise to corporate liability is constantly being updated and expanded. It potentially covers any area of business activity. The range varies from offences that are typical of and exclusive to business activities to offences that are not relevant to the operations of the company and almost result in criminal organisations.

What are the new types of offences introduced in Model 231?

Amendments have been recently introduced by Law No.22 of 9 March 2022. With the latter, Articles 25-septiesdecies and 25-duodevices were added. These introduced two new types of predicate offences: ‘Crimes against cultural heritage’ and ‘Laundering of cultural goods and devastation and looting of cultural and landscape heritage’).

A further update was made by Law No. 137 of 9 October 2023, which amended Articles 24 and 25-octies. In this case, no new offences were introduced. Instead, a broadening of the predicate offences already existing has been carried out (“Undue receipt of funds, fraud to the detriment of the State or a public body or to obtain public funds and computer fraud to the detriment of the State or a public body” and “Receiving stolen goods, money laundering and use of money, goods or benefits of unlawful origin, as well as self-laundering”).

These two amendments broadened the range of predicate offences for the administrative liability of entities.

Consequently, it should be recalled the need to update the Organisation and Management Models (OMM) by the Supervisory Bodies.

What types of offences are provided for by Legislative Decree 231/01?

For most companies, the main offences to which they may be exposed belong to the following categories:

  • Offences against the public administration: i.e against public officials for one’s own benefit (extortion, bribery in judicial proceedings, bribery of a person in charge or a public service, etc.);
  • Corporate offences: they concern the conduct of senior or subordinate persons who misrepresent the company to obtain advantages (e.g. false corporate communications, failure to disclose a conflict of interest)
  • Offences concerning safety in the workplace, such as manslaughter or fatal injury due to violation of health and safety at work regulations.

This typology of offences was introduced in 2007 with the new article 25 septies. This article provides for sanctions against companies for conduct constituting offences of manslaughter and grievous bodily harm, committed because of violations of accident prevention regulations or the protection of hygiene and health at work.

“Culpable injury” means a serious disease which endangers the life of the injured person by causing an inability to perform usual occupations for a period of more than 40 days. On the other hand, a very serious injury is defined as an incurable disease or the loss of a sense or a limb.

Further offences previded by Italian Legislative Decree 231/01

  • Environmental offences, introduced in 2011. Administrative liability has been extended also to offences which can cause damage or negative consequences to the environment. Both willful and negligent conduct can be sanctioned.
  • Cybercrime such as unauthorized access to computer system or hacking.
  • Offences of terrorism or subversion of democratic order.
  • Transnational offences (migrant smuggling, money laundering etc.)

We have understood the offences taken into account by the Organization and Management Model. Now another question arises: “What kind of sanctions are foreseen?”

What are the sanctions provided for by Legislative Decree 231/01?

Italian Legislative Decree 231/01 identifies several penalties for predicate offences committed by senior management or other subordinates for the benefit of the company or their personal interest. Penalties should be in line with the seriousness of infringement committed.

The penalties are:

Prohibitory sanctions

It means the interdiction from exercising the activity with:

  • Suspension or revocation of authorizations/licenses/concessions;
  • Non-admission to Public Administrations supply tenders;
  • Prohibition to advertise goods or services;
  • Revocation of financing, subsidies and other facilities.

The duration of the ban may vary from 3 months to 2 years.

This typology of penalties is applicable for all predicate offences, exceptions made to corporate crimes and market abuse. These specific provisions are applied if any of the conditions listed hereunder occur:

  1. The Organization made a profit from the offence;
  2. The offence is committed by top management or subordinates due to Organizational issues;
  3. The risk of iteration is concrete.

Concerning prohibitory sanctions, an alternative exists: the appointment of a judicial commissioner. In this event, the judge may decide not to interrupt the normal course of the company’s activities but to appoint a commissioner for a period equal to the duration of the disqualification penalty that would have been applied. This may occur especially in cases where the company performs a public service, the interruption of which could cause harm to the community. But also, in relation to the size and economic conditions of the territory to which it belongs, repercussions on employment.

Further conditions for prohibitory sanctions

Furthermore, prohibitory sanctions may be applied as a precautionary measure if the following conditions occur:

  • A limited and sufficient probability that an offence has occurred in a particular case;
  • The existence of well-founded, concrete indications that there is a real and current likelihood of a repetition of an offence of the same kind as the one being prosecuted.

These provisions may also be suspended whether the Organization decides to implement particular measures in order to remedy the damage, i.e. it decides to fully compensate the damage or eliminate any consequences, or it decides to proceed with the adoption of an Organisational Management Model.

Financial penalties

Penalties shall be defined according to a series of parameters:

  • The seriousness of the crime;
  • The degree of fault of the company;
  • Whether any actions were taken to mitigate the consequences of the act.

Considering these criteria, it is possible to establish the monetary value of the individual penalty, which ranges from a minimum of €25,800 to a maximum of €1,546,000.

These penalties may be reduced by half and may not exceed a specific amount if:

  1. The Company obtained minimal or no advantage from the offence committed. Thus, the perpetrator acted in his own personal interest or that of a third party, and if
  2. The pecuniary damage caused is minor.

A further reduction of the penalty may be obtained if, before the start of the first instance trial, the Company has compensated damages, has undertaken to eliminate the consequences of the offence and has adopted an Organizational Model to prevent like the one already committed.

Nevertheless, it is essential to underline how ineffective financial penalties could be, especially with regard to medium to large corporations. For the latter, in fact, these penalties are merely an ordinary business risk. Therefore, they can be mitigated through the drafting of insurance policies or creation of ad hoc funds.

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