Administrative liability of entities: interest and advantage in culpable offences

The Court of Cassation, IV Criminal Section, in its ruling no. 22256 of 3 March 2021 (filed on 8 June), ruled on the existence of the requisites of interest and advantage of the entity in cases of culpable offences for violation of accident prevention regulations under Legislative Decree no. 231/01 on administrative liability of entities.

Facts of the case

The case concerned a workplace accident involving a driver in a waste sorting plant, who got out of his vehicle while removing the cover of a container to unload the material coming from the sorted waste collection. The employee was hit by another worker’s forklift truck and suffered serious injuries.

The Court of First Instance and the Court of Appeal found the defendant employer guilty of the offence of culpable injury aggravated by breach of the rules on accident prevention.  This was because they were held to be consequential to the infringement of the combined provisions of Articles 63 and 64 paragraph 1 of Italian Legislative Decree no. 81/2008 (respectively under the headings “Health and safety requirements” and “Employer’s obligations“) for the employer’s failure to organise a safe road system by using signs and road markings, regulating traffic in the external yard of the waste sorting plant, separating the traffic lanes, indicating the storage areas and the lanes intended for forklifts and pedestrians, and areas for manoeuvring vehicles.

The judges declared that the company was liable for an administrative offence (under Articles 5, paragraph 1, letter a) and 25-septies, paragraph 3) of Legislative Decree no. 231/2001), while recognising an extenuating circumstance, the company was ordered to pay an administrative fine (of €12,900).

According to the Court, the company was guilty of failing to assess the risk of injury resulting from possible interference between the drivers of the forklift trucks and the workers unloading the material. This liability stemmed from the reduction in the costs of the consultant’s work for the revision of the DUVRI (single document on the assessment of risk from interference) and the increase in the speed of production due to the failure to take the necessary measures.

An appeal was lodged against the Court of Appeal’s ruling.

The Supreme Court of Cassation’s ruling

The Court of Cassation clarified that (i) the concepts of interest and advantage must necessarily refer to the conduct and not the event and, (ii) they are alternatively applicable. The interest requirement must be assessed at the time of the fact, while the advantage requirement must be evaluated later, based on the effects practically derived from the offence committed.

The Court of Cassation specified that:

• the interest requirement is met if the offender knowingly violates the precautionary rule to obtain a benefit for the organisation, while
• the advantage requirement exists when the party systematically violates the prevention rules, allowing a reduction in costs and a containment of expenditure with a consequent profit advantage.

According to the Court of Cassation, the appealed ruling did not clarify the evidence from which it deduced the advantage obtained by the organisation in terms of cost savings and acceleration of the production process. In its opinion, the cost savings were small, and the company had generally complied with the accident prevention regulations.

For these reasons, the Court of Cassation upheld the Court of Appeal’s ruling insofar as it had recognised the employer’s liability as an individual. It annulled the ruling where it had identified the entity administrative liability and referred the case back to the relevant Court of Appeal in a different composition.

Other related insights:

• Failure to take the measures provided for under the GDPR is comparable to the “fault on the organisation’s side” under Legislative Decree No. 231/2001