Organization, Management and Control Model

Legislative Decree 231 of 8 June 2001 (hereinafter “Legislative Decree 231/2001” or the “Decree”), enacted under the enabling authority granted to the Government by Art. 11 of Law 300 of 29 September 2000, governs “corporate liability for administrative offenses resulting from criminal acts”.

These rules apply to public entities with legal personality and companies and associations with or without such legal personality.

The roots of Legislative Decree 231/2001 lie in a number of international and European Union conventions ratified by Italy that impose various forms of liability on collective entities for certain types of crimes.

Under the system introduced with Legislative Decree 231/2001, companies can, in fact, be held “liable” for certain criminal offenses (generally intentional wrongdoing, sometimes negligence) committed or attempted by senior management (“corporate officers”) and those subject to the direction and oversight of the former (“subordinates”) in the interests of or for the benefit of the companies themselves.

The purpose of this expansion of liability is essentially to place company assets and, ultimately, the financial interests of shareholders within the scope of the penalties for certain crimes.

A fundamental aspect of Legislative Decree 231/2001 is that it rewards companies for adopting compliance systems by offering exemptions from liability. In the case of an offense committed by a corporate officer, the company cannot be held liable if it can prove that - Art. 6(1) of  Legislative Decree 231/2001):

• prior to the commission of the act, the management body adopted and effectively implemented compliance systems capable of preventing the crimes of the type that occurred
• a body within the company possessing independent powers of initiative and control is charged with overseeing the function of and compliance with the systems and of updating them
• the persons committed the crime by fraudulently circumventing the compliance systems
• the Supervisory Body did not fail to perform or inadequately perform its oversight function.

However, in the case of an offense committed by person subject to the direction or oversight of a third party, the Company is liable if the commission of the crime was made possible due to the violation of its own direction or oversight obligations (Art. 7 of Legislative Decree 231/2001).