#corporate administrative liability: the Court of Appeal revisits the issue of “organisational liability” and the relevance of the absence of the MOGC 231 framework.
Attorney Luigi Tassinari reports on the recent judgement no. 18413, filed on 10 May 2022, with which the 4th Division of the Supreme Court annulled the judgement of conviction against a company for the offence referred to in art. 25-septies of legislative decree no. 231/2001. More specifically, according to the Territorial Court, the company had made it possible for the personal injury offence to occur, which was aggravated by the violation of preventive measures (Article 590, paragraph 3, of the Italian Criminal Code) – committed in its interest by subjects holding senior management positions – given the absence of an organizational framework concerning safety at work and the lack of a #supervisory body responsible for verifying the safety systems of company machinery.
To annul the disputed decision, the Court of Appeal first clarified that the legal person is liable for the offences – as provided in legislative decree no. 231/2001 – due to own negligence and not due to the negligence of others.
Furthermore, to avoid the emergence of purely objective liability, the Court of Appeal stressed that a company’s so-called organisational liability must be proven. This can occur if “a set of preventive measures aimed at avoiding the crimes of the type committed” has not been put in place.
According to the Court, therefore, a company’s organisational liability is given the same function as the guilt in predicate offences committed by an individual: it is, in fact, a “constitutive element of the typical offence, as evidenced by the ‘guilty’ (or reprehensible) violation of the precautionary rule “
It follows that the constitutive elements of the administrative offences as envisaged by decree-law 231 can be identified in the organic and teleological relationship between the perpetrator of the predicate offence and the entity, in the organizational liability, in the predicate offence and, lastly, in the causal link which must exist between these last two elements.
The Supreme Court therefore specified that the absence or ineffective implementation of the organizational framework – it not being a constitutive element of the offence of the entity – represent a circumstance capable of proving organizational liability, which however must be specifically proven by the prosecution, while the entity can demonstrate the absence of such guilt.
Finally, via the ruling in question, the Supreme Court of Appeal also reiterated that, in the light of the above principles, the aspects concerning the safety equipment and the checks relating to the specific machinery on which the accident at work occurred, concern cases of culpable responsibility that may be attributed to the board of directors in its capacity as employer and have, however, nothing to do with the element of organizational liability of the entity.
# 231 #injuries at work