Legislative Decree no. 231/2001 (the “Decree“) introduced for the first time in our legal system a specific form of administrative liability for companies. Companies are liable for certain offences (“predicate offences”) committed in their interest or to their advantage by top managers or those subordinate to them. This liability means that companies are subject to two types of sanctions: pecuniary or prohibitory. A specific form of exemption from this liability is the adoption and implementation of an organisation system suitable for preventing the offences under the Decree.
The preparation of an Organisation and Management System must include several precise preparatory stages. It is necessary to identify and assess the “231 risk areas”, i.e. map the sensitive activities within the organisation that could lead to the commission of offences provided for in the Decree, and the relevant control mechanisms implemented by the organisation. Subsequently, it is necessary to identify the opportunities for improvement through a Gap Analysis for each of the identified areas, and define a remediation (action) plan. Only at the end of this is it possible to prepare an Organisation and Management System and its components (general part, special part and annexes) and define a subsequent plan for monitoring, controlling and updating it.
Under art. 6 of Legislative Decree no. 231/2001, a Supervisory Body is, an independent Entity with initiative and control powers, which must be professional and act in continuity, reflecting the Entity’s intention to create an organisation that prevents the commission of offences. The tasks assigned to the SB include: (i) supervision of the Organisation and Management System’s effectiveness, expressed through consistency between practical conduct and the Organisation and Management System; (ii) monitoring that the soundness and functionality requirements in the System are maintained over time; (iii) constant management of the System updates through corrections and adjustments. Based on the organisation’s need, the SB may be structured as an individual member or collective body and composed of individuals from within or outside the organisation. Its members must have appropriate professional skills and a thorough knowledge of the entity’s organisational structure, the System and special parts it contains.
Articles 9 to 23 of the Decree specify the sanctions applicable to the Entity as a result of the commission or attempted commission of the predicate offences, in the interest or to the advantage of the Entity. The sanctions are divided into (i) pecuniary and (ii) prohibitory. Pecuniary sanctions are applied in instalments of no less than one hundred and no more than one thousand, and the instalment amount ranges from a minimum of €258 to a maximum of € 1,549. The combination of these two requirements results in a sanction ranging from a minimum of €25,800 to a maximum of €1,549,000. The judicial authority defines the number of quotas by considering the offence seriousness, Entity degree of liability and the activity carried out to eliminate or mitigate the consequences of the offence and prevent the commission of further offences. Prohibitory sanctions (such as a ban on the activity; suspension or revocation of authorisations, licences or concessions; a ban on contracting with the Public Administration; exclusion or revocation of loans and contributions or a ban on advertising goods or services) are applied when at least one of the following conditions is met:
Prohibitory sanctions last at least three months and up to two years.
In addition to the pecuniary and prohibitory sanctions, the confiscation of the assets obtained through a crime and publication of the conviction are imposed.