Liability under Italian Legislative Decree no. 231/2001: ​obtaining minimal advantage does not exempt the employer

With judgment no. 39129 of 26 September 2023, the Italian Court of Cassation, Third Criminal Division addressed the issue of corporate administrative liability under Italian Legislative Decree no. 231/2001, stating that “corporate administrative liability is not excluded in the light of the minimal advantage or the insignificance of the interest pursued.”

The facts of the case

A company was convicted at the first instance of breach, i.e. for the crime of serious personal injury committed in violation of accident prevention regulations to the detriment of one of its employees (under Article 25 septies of Italian Legislative Decree no. 231/01).

Specifically, it was noted that the Company – the works contractor and construction site owner – had failed to equip the sliding gate at the entrance to the workplace with a safety system to prevent the gate from falling out of its guides or in any event from falling over. This omission resulted in the worker being crushed to the ground by the gate.

The second instance judges confirmed the decision of the Territorial Court, in which the failure to provide safety measures to prevent the risk was attributed “to negligence consisting of inexperience, carelessness, imprudence and failure to comply with the rules on the prevention of accidents at work.”

The decision of the Court of Cassation

The Company appealed to the Italian Court of Cassation against the decision of the Court of Appeal, challenging the existence of the prerequisites of interest or advantage to the company, since the company had not, in fact, had any cost savings nor economic gains given that the expense of repairing the gate would have consisted of a “derisory” sum.

The Italian Court of Cassation – declaring the appeal inadmissible – clarified that the prerequisite criteria of interest and advantage necessary to establish corporate administrative liability (Article 5 of Italian Legislative Decree no. 231/2001):

• are alternative and concurrent. The interest is assessed ex ante, that is, at the time the act is committed and is assessed subjectively, while the advantage can be assessed ex post, based on the effects actually derived from the commission of the act and is assessed objectively;
• are to be assessed based on the conduct and not the event as a reference point.

In the present case, the accident had occurred due to the failure to post information signs and necessary maintenance had been omitted so as not to adversely affect production.

The minimal advantage or the insignificant interest sought makes no difference, since even the failure to take precautions that may result in limited cost savings can give rise to offences of negligence in breach of accident prevention regulations.

The Italian Court of Cassation therefore upheld the judgment of the Court of Appeal, declared the appeal inadmissible and ordered the Company to pay court costs.

Other related insights:

• Administrative liability of entities: interest and advantage in culpable offences – De Luca & Partners (delucapartners.it)
• DID YOU KNOW THAT… The catalogue of predicate offences for the administrative liability of entities has been extended? – De Luca & Partners (delucapartners.it)