231 Organisation and Management Model Update (Newsletter Norme & Tributi n. 128 – Camera di Commercio Italo-Germanica – Vittorio De Luca, Luciano Vella)
Legislative Decree 231/2001 introduced for the first time into the Italian legal system the possibility for a corporation to be fined (monetarily and with disqualification penalties) when specific offences (predicate offences) are committed – to its own advantage or in its interest – by top managers or their subordinates. However, the Decree includes an exonerating exemption: the corporation is not liable if it can prove to have implemented and adopted effectively – before the offence was committed – an organisational, management and control model (the “Model”) suitable to prevent offences of the same type as the one that took place. In any case, the Model is a tool destined by its nature to change and in order to have exonerating power, it must be updated any time there are changes within the organisational structure of the Company (such as, for example, opening of a new office or extension of the corporate purpose) or if the lawmakers introduce new types of offences. By express legislative provision, the effective implementation of the Model, and consequently its subsequent amendments, are the responsibility of the Managing Body. Instead, the constant updating of the Model must be entrusted to the Supervisory Body. On this matter, Confidustria’s guidelines dated 2014, in fact, specifically specified that the Supervisory Body must be assigned the task to ensure updating of the Model every time its reviews so require.