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Criminal Liability of Companies and Legal Entities in Italy: Compliance Notes
On June 8, 2001, the Italian Government – in compliance with the principles set forth in EU legislation on the prevention of corporate crimes and the assessment of companies’ liability – enacted the Legislative Decree no. 231/01 (hereinafter the “Decree no. 231”) that introduced for the first time into the Italian legal system the direct liability of companies and other legal entities for crimes committed by directors, executives, their subordinates and other subjects acting on behalf of the legal entity (e.g. the agents), when the unlawful conduct has been carried out in the interest of or to the benefit of the company con-cerned.
Currently the crimes provided for by the Decree no. 231 are the following:
- crimes committed within the sphere of the relations with the Public Administration (i.e. fraud against the State or other Governmental Agency; theft of public funds; fraud aimed at obtaining public financings; bribery);
- crimes concerning the forgery of coinages, banknotes and duty stamps;
- corporate crimes (so called “whitecollars” crimes, as misrepresentation of company ac-counts; forgery of a prospectus; falseness in statements or communications of the audit company; obstructed control; fictitious capital formation; fraudulent restitution of con-tributions; etc.);
- crimes committed with purposes of terrorism and eversion of democratic order;
- crimes against the fundamental rights of freedom (in Italian “reati contro la personalità individuale”);
- crimes relevant to “Market Abuse”;
- crimes against person (manslaughter and negligently causing serious or very serious in-juries), committed in violation of safe working practices and the protection of hygiene and health at work;
- crimes concerning receiving, recycling and use of money (money laundering), goods of usefulness or unlawful origin;
- environmental crimes;
- crimes of organised crime;
- crimes against industry and trade and crimes against infringements of copyright;
- induction not to make statements or to make false statements to the court;
- employment of third-country nationals whose stay is irregular;
- racism and xenophobia;
- fraud in sports competitions, abusive gambling or betting.
Among the penalties provided for by the Decree no. 231, the most serious are: ban from business activity, suspension or withdrawal of licenses and permits, prohibition to contract with the State or Governmental agencies, exclusion or revocation of financing and subsi-dies, prohibition to advertise goods and services, confiscation of profits, as well as fines up to 1.5 ml of Euro.
Companies shall not be considered liable pursuant to Decree no. 231 if the following con-ditions exist:
- the individual(s) who committed the crime acted in their own exclusive interest or in the interest of third parties not related to the company;
- the managing body of the company has adopted and implemented a compliance program apt to prevent the misconducts sanctioned by the Decree no. 231 (hereinafter referred to as the “Compliance Program”);
- an ad hoc internal body has been appointed by the management, to oversee the imple-mentation and updating of the Compliance Program (hereinafter referred to as the “Com-pliance Officer”).
These are minimum requirements for the Compliance Program to contain:
- identification of the risk areas, i.e. areas of activity of the company where there is the possibility to commit the mentioned crimes (hereinafter referred to as “Risk Areas”);
- identification of procedures for regulating the decision-making process in Risk Areas, with respect to the crime prevention;
- management of the financial resources for preventing the commission of crimes provided for by the Decree no. 231;
- obligations for each division of the company to inform and report to the Compliance Of-ficer;
- disciplinary sanctions to be inflicted to trespassers of the measures and procedures pro-vided for by the Compliance Program.
Final Thesis in banking. Chartered Accountant and Tax Consultant enrolled in the Chamber “Ordine dei Dottori Commercialisti ed Esperti Contabili di Vicenza”, n. 350 A
Auditor with legal approval (D.M. 12.04.1995 published on G.U. n. 31 bis, IV of 21.04.1995), n. 9143