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CSIA | In Evidence

The administrative responsibility of organizations

Legislative Decree 8 June 2001, n. 231, which contains the “Rules governing the administrative liability of legal persons, companies and associations, including those without legal status”, which entered into force on 4 July 2001, introduced into the Italian legal system, in accordance with the provisions of the Community framework the administrative responsibility of the Entities, where “Entities” means commercial companies, capital companies and people, and associations, even without legal personality.

The administrative liability of the Entity derives from the perpetration of crimes, expressly indicated in Legislative Decree 231/2001 and subsequent amendments, committed, in the interest or to the benefit of the Entity, by natural persons who perform representation, administration or management functions Entity or one of its organizational units with financial and functional autonomy, or that exercise, even in fact, the management and control (so-called “top managers”), or that are subject to the management or supervision of one of the aforementioned subjects (so-called “subordinates”).

In addition to the existence of the requirements described so far, the Decree also requires the assessment of the guilt of the Entity, in order to be able to affirm its responsibility. This requirement is attributable to an “Organizational fault”, to be understood as failure by the Entity to adopt preventive measures suitable for preventing the commission of the crimes envisaged by the subjects expressly identified by the Decree.

Where the Entity is able to demonstrate that it has adopted and effectively implemented an Organization capable of avoiding the commission of such crimes, through the adoption of the Organization and Management Model envisaged by the Decree, the latter will not be liable for administrative responsibility.

OFFENSES PROVIDED BY THE DECREE

The predicate offenses provided for by the Decree and subsequently integrated over the last decade, are multiple and take into consideration all the sectors of activity carried out by a company. The following are some of the most widespread examples: A

  • Art. 24. – Undue receipt of funds, fraud to the detriment of the State or a public body or for the purpose of obtaining public funds and computer fraud to the detriment of the State or a public body.
  • Art. 24-bis. – Computer crimes and unlawful data processing
  • Art. 25 – Bribery, undue induction to give or promise utility and corruption
  • Art. 25-ter – Corporate crimes
  • Art. 25-septies – culpable homicide or serious or very serious injuries committed with violation of the rules on the protection of Health and Safety at work
  • Art. 25-octies – Receiving, laundering and using money, goods or utilities of illicit origin
  • Art. 25-undecies – Environmental crimes