Administrative liability of legal entities resulting from an offence is no longer a novelty in Italian law. With the introduction of legislative decree no. 231/2001, lawmakers have meant to target corporate crimes, i.e., crimes relating to corporate endeavours, and liability may be attributable not only to individuals but also to the legal entity to which the individual belongs.
Liability for an administrative offence resulting from a crime is based on the commission of one of the so-called “predicate offences” by a natural person belonging to the entity, in the interest or for the benefit of the entity itself. These objective requisites must necessarily come with a subjective prerequisite consisting of an organizational deficit as against a model of diligence that is required of the legal entity as a whole. Thus, the entity may be punishable only when blameworthy of organizational liability, i.e., it has failed to adopt or implement organizational models aimed at preventing the commission of the predicate offence.
The application of administrative penalties set out by legislative decree 231/2001 may be avoided by a company if, before committing a crime, a company has prepared an adequate organization and management framework, i.e. a set of procedures, protocols and control measures aimed at preventing the commission of offences, and if it has entrusted an independent supervisory board with the task of supervising the functioning of and compliance with the organizational model and of ensuring it is kept up to date. In order to avoid the imposition of stiff administrative penalties – both in terms of pecuniary and disciplinary measures – it becomes therefore essential for entities, especially larger ones, to put in place suitable organizational safeguards.
Over the years lawmakers have extended a legal entity’s liability to numerous “predicate offences“, which were originally meant to cover a limited number of cases. Recently, decree law no. 124 of 26 October 2019 (i.e., the “tax decree”), converted with amendments by law 19 December 2019 no. 157, as part of a broader overhaul of the penal tax regime, has introduced art. 25 quinquiesdecies, which imposes administrative penalties on the entity vis-à-vis a series of tax crimes. Lastly, in 2020, the enacting decree of the so-called PIF directive, which introduced new cases into legislative decree 231/2001, was approved as part of the fight against financial fraud in the European Union.
Currently, the catalogue of offences that may result in the administrative liability of the entity is very broad and includes most typical corporate offences.
Baccaredda Boy Law Firm closely follows the frequent legislative changes and its ensuing procedural implications. It provides legal assistance aimed at preparing, verifying and updating the organization and management models which are aimed at preventing “predicate offences”.
Our team of lawyers dealing with administrative liability of entities also offer legal assistance with regard to criminal proceedings involving entities and individuals in senior or subordinate positions. Over the years, our team has been given power of attorney to defend the interests of entities in countless trials, including the pharmaceutical sector and the oil sector.
Baccaredda Boy Law Firm offers an in-depth analysis of administrative liability for legal entities through conferences, study groups and publications. In this respect, please refer to the relevant section.