Organisational Model: necessary risk analysis (Newsletter Norme & Tributi n. 134 – Camera di Commercio Italo-Germanica – Vittorio De Luca, Elena Cannone)

The Criminal Division of the Court of Cassation, by judgment 18842/2019, referring to the case law of the Joint Divisions, has again ruled on the subject of administrative liability of entities. Specifically, the Court of Cassation has affirmed that it is the responsibility of the entity – once it has ascertained that certain offences have been committed by top management who have acted in their own interests or to gain advantage – to prove “with full discharge of its liabilities” that it has adopted and effectively implemented, before the offence was committed, a model of organisation, management and control suitable for preventing offences of the type which has occurred. This is because, again according to the Court, the “fault of the organisation” derives from not having fulfilled the obligation to “adopt organisational and managerial precautions necessary for preventing offences appropriate for establishing the liability of the collective subject. These precautions should be highlighted in a document which identifies the risks and appropriate measures to counter them”. In effect, organisation, management and control Models cannot be separated from the precise and exhaustive mapping of risks and identification of suitable monitoring measures to prevent and contain them. These measures must be adequately described in a suitable document, which then becomes obligatory for all those who operate within the organisation of the entity, including those with top management positions.