In carrying out its activities, a company, as an entity, may incur civil liability (contractual or non-contractual) for the activities carried out through its representatives or administrative liability for violations in the areas of taxation (e.g., with regard to VAT payments and other taxes), labor (e.g., with regard to insurance against occupational accidents and diseases), and the environment (e.g., with regard to noise pollution).
Under Italian Legislative Decree 231/2001, a company may also incur in the so-called administrative liability resulting from crime in case specific subjects functionally linked to it commit certain types of crimes.
In specific cases, foreign companies may be subject to the provisions of Legislative Decree 231/2001 too and are required to take action and respect a series of fulfilments in order to avoid liability and subsequent fines.
In this and the following issues is an overview of the provisions of Legislative Decree 231 and the way it can affect foreign companies operating in Italy.
A third type of liability and why you should worry about it
Under Legislative Decree 231/2001, companies may incur the so-called administrative liability resulting from a crime (sometimes, for brevity, “criminal liability of the company”) for certain types of crimes committed by subjects functionally linked to them. In such cases, criminal liability falls on the subjects who materially committed the offenses, while specific sanctions identified by the same Legislative Decree 231/2001 are established for companies.
While criminal liability is personal by constitutional principle (Art. 27 Const.) and requires the necessary presence of both a causal link between the criminal act and the conduct of the perpetrator and a psychological element (guilt or intent), administrative liability resulting from crime has an autonomous legal nature and cannot be equated with either criminal or civil liability (so-called tertium genus of liability) (Cass. pen. SU April 6, 2023 no. 14840, Cass. pen. SU April 24, 2014 No. 38343, Cass. Pen. May 28, 2019 No. 29538).
This discipline applies to a company headquartered in Italy both in the case of a crime committed in Italy and in the case of a crime committed abroad, unless, in the latter case, the State of the place where the crime was committed does not proceed directly to prosecution (in the cases and under the conditions provided for in Articles 7, 8, 9, 10 of the Criminal Code) (Art. 4 c. 1 Legislative Decree 231/2001).
Legislative Decree 231/2001 applies however also to a company headquartered abroad when it operates in Italy and crimes are committed In Italy regardless of its nationality, the presence in the national territory of a branch office or establishment, the place where it has established its registered office as well as the existence or non-existence, in the State of belonging, of rules regulating similar matters (Cass. Pen. Feb. 11, 2020 No. 11626).
A company (either Italian or foreign) can be exempted from liability only if it has adopted in advance and effectively implemented organizational and management models (MOG) in compliance with regulatory provisions.
In the following issues we will explain what types of crimes are punished under Legislative Decree 231/2001, who are the subjects functionally linked to the company that might be held responsible, what is an organizational and management model (MOG) and how to implement it.
STAY POSTED!
Giulia Aiudi
Viale della Vittoria 213
61121 Pesaro
(PU) Italy
Telephone : +39 0721 379234
Email : ga@csplegal.it
Website : http://www.csplegal.it