{"id":2665,"date":"2021-07-06T09:21:12","date_gmt":"2021-07-06T07:21:12","guid":{"rendered":"https:\/\/studiolegalestella.it\/decreto-legislativo-231-2001-compie-venti-anni\/"},"modified":"2023-11-07T16:09:49","modified_gmt":"2023-11-07T15:09:49","slug":"legislative-decree-231-2001-turns-twenty","status":"publish","type":"post","link":"https:\/\/studiolegalestella.it\/en\/legislative-decree-231-2001-turns-twenty\/","title":{"rendered":"The Legislative Decree n. 231\/2001 turns twenty: this is why it is so important"},"content":{"rendered":"
[vc_row][vc_column][vc_column_text]The Legislative Decree n. 231\/2001<\/strong><\/a>, which introduced the \u201cregulation of the administrative liability of legal persons, companies and associations, including those without legal personality, under article 11 of Law n.300, September 29, 2000\u201d, turns twenty<\/strong>.<\/span><\/p>\n

It\u2019s a crucial anniversary<\/strong> because this legislation has allowed the Italian legal system to overcome the principle of \u201csocietas delinquere non potest<\/strong>\u201d, that is, \u201ca company cannot commit a crime<\/strong>\u201d.<\/span><\/p>\n

Although the Legislative Decree n. 231\/2001<\/strong> was initially applied only to some willful crimes, over time, the legislator has expanded its range of action <\/strong>by including further \u201cpredicate offenses<\/strong>\u201d, i.e., the types of offenses that can cause the body\u2019s liability. To date, this particular category includes about five hundred heterogeneous offenses<\/strong>, such as crimes against the Public Administration (the first to be introduced), corporate and environmental crimes, crimes related to accidents at work, IT crimes and, more recently, tax crimes.<\/span><\/p>\n

The extension of the applicability of the Legislative Decree n. 231\/2001<\/strong> has sensitized companies \u2013 especially those of medium-large size<\/strong> \u2013 to implement efficient internal compliance systems<\/strong> resulting from adopting specific Organizational Models<\/strong>. The latter must be constantly updated while appointing the Supervisory Body<\/strong> guarantees the verification of the application by the model\u2019s recipients, as well as the model\u2019s adequacy and effectiveness. <\/span>[\/vc_column_text][vc_empty_space height=”20px”][vc_column_text]\n

Organizational Models: a valuable tool for avoiding the responsibilities of a crime under the Legislative Decree n. 231\/2001<\/span><\/h2>\n

Companies that adopt Organizational Models <\/strong>have an essential tool at their disposal to avoid liability<\/strong> for a crime according to the Legislative Decree n. 231\/2001<\/strong>. Several cases addressed by the jurisprudence and ending with the acquittal of the company precisely because its Organizational Model was valid<\/strong> confirm such a thesis. However, this is a topic that we will discuss more thoroughly in the future. <\/span><\/p>\n

It is also important to point out that Confindustria recently published<\/strong><\/a> its updated guidelines regarding the creation of Organizational Models<\/strong>, hoping to \u201cinspire companies<\/strong> in the construction of their model and, for the jurisprudence<\/strong>, to enhance the organizational efforts made by the companies to align themselves with the provisions of the Decree 231.\u201d<\/span><\/p>\n

The aforementioned Supervisory Body<\/strong> actively deals with the Legislative Decree n. 231\/2001<\/strong>, which is why more and more medium-large companies are equipping themselves with such entity<\/strong>, in view of the growing attention the case law shows in relation to the Body\u2019s centrality in internal control systems<\/strong>. <\/span><\/p>\n

More specifically, the Supervisory Body<\/strong> receives the so-called \u201cinformation flows<\/strong>\u201d from the various corporate functions. It then sends the reports to the top management<\/strong>, the Board of Directors and the Board of Statutory Advisors. Hence, the Supervisory Body provides these entities with a constantly updated representation of the state of health<\/strong> of the corporate control system<\/strong>. <\/span><\/p>\n

It is also worth reporting a recent sentence by the Court of Milan<\/strong> on the well-known Monte dei Paschi di Siena case<\/strong>, which saw the bank\u2019s Chairman and Chief Executive Officer being convicted of false corporate communications and stock manipulation<\/strong>. The fine was 800 thousand euros.<\/strong> <\/span><\/p>\n

The court was unequivocal<\/strong> regarding the liability of the entity<\/strong>, explaining that, in the analyzed timeframe, \u201cthe Supervisory Body, despite having penetrating powers of initiative and control<\/strong>, [\u2026] substantially omitted the necessary investigations<\/strong> (which were functional to the prevention of repeated and undisturbed crimes), despite the relevance of the issue as per the inspections of the Bank of Italy (of which the SB was aware) and has even risen to judicial challenge blaming BMPS[\u2026]\u201d<\/span><\/p>\n

And again<\/span><\/strong>: \u201cThe Supervisory Body witnessed the events passively<\/strong>, limiting itself to insignificant acknowledgments, in the spiraling of events<\/strong> (from the alarming press reports to the judicial debacle) that a more prudent exercise of control would have averted. Thus, unfortunately, it was not<\/strong> and all that remains is to detect the body’s omitted (or at least insufficient) supervision<\/strong>, which founds the organizational fault referred to in article 6, Legislative Decree n. 231\/2001<\/strong>.\u201d<\/span><\/p>\n

This sentence again confirms the centrality of the Supervisory Body<\/strong> in monitoring and verifying the adequacy and effectiveness of the corporate compliance system<\/strong>. <\/span>[\/vc_column_text][vc_empty_space height=”20px”][vc_column_text]\n

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