Article 27 of the Italian Constitution enshrines the principle that criminal liability is personal. This principle is one of the pillars of the country’s legal system, providing that no one can be punished for an offence he or she did not commit personally, since criminal liability is closely linked to the individual action and will of the person.
Historically, the personal nature of criminal liability has created numerous problems in all those cases in which the competent authorities needed to prosecute offences committed in the context of activities carried out by organizations; meaning by organizations, all the structures that are endowed with legal personality and, therefore, are able to assume rights and duties. Companies, commercial organizations, public entities, and associations all fall within the concept of organization.
To address this issue and ensure greater liability of organizations for offences committed in their interest, Legislative Decree No. 231/2001 was introduced; the Decree is designed to fill the legal vacuum and effectively contrast phenomenon such as corruption, fraud, and other illegal activities. The legislation in question has placed an administrative/criminal liability on organizations in relation to certain offences committed by their directors, managers, or employees, when committed to the advantage of the organization itself.
Decree 231/2001, therefore, subverted the traditional principle whereby “societas delinquere non potest”, attributing to the criminal court the competence to punish the organization in whose interest or to whose advantage the offence is committed – in addition to the physical persons who materially committed the offence.
The sanctions that may be imposed on the organization are of a pecuniary or disqualifying nature; in both cases, the aim is to affect its assets, directly or indirectly.
To avoid possible sanctions, organizations are obliged to adopt the so-called “Modello Organizzativo e di Gestione” (also known as Modello 231). More specifically, this is a series of provisions that define the organizational and internal control system of a company and aim to prevent the commission of the offences sanctioned by the Legislative Decree in question by directors, managers, or employees.
In fact, Modello 231 defines and regulates the organization’s behavior, establishing compliance with external and internal laws and regulations, outlining the behavior to be adopted towards customers, suppliers, shareholders, representatives of the Public Administration, employees and all those who may have an interest in the organization itself. The Modello 231 is not standardized and must be drafted considering the particularities and criticalities of each case; therefore, different organizations will adopt different provisions.
However, the adoption of the Modello 231 is not in itself sufficient to avoid possible sanctions by the competent authorities; it is, in fact, necessary that what is set out in it is implemented and applied within the organization. Therefore, if the guidelines set out in Modello 231 are not respected or applied correctly in daily practice, the organization remains exposed to risks of non-compliance and regulatory violations.
Moreover, even if an organization has a well-structured Modello 231, it may lack an effective internal control system to detect and prevent illegal or non-compliant behavior in time.
Whenever the organization is called to answer in a judicial court for an offence committed in its interest or to its advantage, the actual suitability of the Modello 231 is subject to assessment by the competent judge.
In conclusion, the promulgation of Legislative Decree No. 231/2001 represented a significant turning point in the Italian regulatory landscape, raising the level of accountability and transparency within organizations, particularly commercial companies, promoting the spread of a corporate culture oriented towards legality and regulatory compliance – today known as corporate compliance.
To read the full text of the legislation in question, please click on the following link: https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2001-06-08;231.
