1. THE CONTENT OF ITALIAN LEGISLATIVE DECREE NO. 231/01
Italian Legislative Decree No. 231 of 8 June 2001 established in Italy the administrative responsibility of organisations having legal liability, companies and associations, including those without legal status, for facts connected with the commission of offences.
This Decree, containing “Regulations governing the administrative liability of legal persons, companies and associations, including those without legal liability”, introduced the provision for the administrative liability of Organisations for the criminal offences expressly foreseen therein, from which they have derived interest and/or benefit from committing the offence.
2. THE OFFENCES ENVISAGED
Based on the regulatory content provided for in Italian Legislative Decree No. 231/01, an organisation’s administrative liability is determined with reference to certain types of offence:
- Undue receipt of funds, fraud against the State or a public organisation or to obtain public funds and computer fraud against the State or a public organisation (Article 24)
Computer crimes and unlawful data processing (Article 24-bis)
Organised Crime (Article 24-ter)
Bribery, undue inducement to give or promise advantages and corruption (Article 25)
Dealing in counterfeit coins, public credit cards, revenue stamps and identification instruments or signs (Article 25-bis)
Crimes against industry and trade (Article 25-bis1)
- Corporate offences (Article 25-ter)
- Crimes for the purpose of terrorism or subversion of the democratic order (Article 25-quater)
- Female genital mutilation practices ( Article 25-quater 1)
- Crimes against individual personality (Article 25-quinquies)
- Market abuses (Article 25-sexies)
- Manslaughter and serious or very serious injuries committed in breach of workplace health and safety regulations (Article 25-septies)
- Receipt of stolen goods, money laundering and use of money, goods or benefits of unlawful origin (Article 25-octies)
- Offences relating to copyright violations (Article 25-novies)
- Inducement not to make statements or to make false statements to judicial authorities (Article 25-decies )
- Employment of third-country nationals whose stay is illegal (Article 25-duodecies)
3. APPLICABLE SANCTIONS
The sanctions for these offences envisaged by Article 9 of Italian Legislative Decree No. 231/01 are:
d) publication of the sentence.2. The disqualification sanctions are:
a) disqualification from exercising the activity
b) suspension or revocation of authorisations, licences or concessions functional to the commission of the offence
c) prohibition to make contracts with the public administration, except to obtain the performance of a public service
d) exclusion from concessions, loans, contributions or subsidies and the possible revocation of those already granted
e) the ban on advertising goods or services.
Therefore, having established the liability of the organisation, Article 6 of Italian Legislative Decree No. 231/01 establishes that said organisation is not liable if it proves that it has adopted and implemented, before the occurrence of the fact,
“organisation, management and control models suitable for preventing crimes of the kind that occurred”.
The aforementioned Article in paragraph 1, point b) also establishes that: “the task of updating the models as well as supervising their functionality and observance is entrusted to a board of the organisation with autonomous powers of initiative and control”.
Italian Legislative Decree No. 231/01, pursuant to Articles 6 and 7, has provided for a specific form of exemption from the liability governed by Article 5, in cases where:
- it is demonstrated that it has adopted and effectively implemented models of organisation, management and control suitable for preventing the aforementioned offences;
- an internal board has been set up with autonomous powers of initiative and control to supervise the functionality and compliance with the models and to update them;
- persons have committed the offence by fraudulently evading the organisation and management model pursuant to Italian Legislative Decree No. 231/01;
- the board within the organisation has supervised, monitored and ensured that the said model has been updated.
This organisation, management and control model must meet certain requirements; namely, it shall:
- identify the activities/areas in which the offences provided for in the aforementioned Decree may have been committed
- provide for specific protocols aimed at planning the training and implementation of the company’s decisions in relation to the offences to be prevented;
- identify ways of managing financial resources suitable for preventing the commission of such offences;
- address information obligations towards the Supervisory Board responsible for overseeing performance and compliance with the models
- introduce a suitable disciplinary system to punish non-compliance with the measures indicated in the model.
Organisations are not obliged to adopt an Organisational Model, but in the event of criminal proceedings, it is possible to exempt the Organisation from liability only by demonstrating the adoption and effective implementation of said Model, as well as the establishment of a Supervisory Body.
Therefore, organisations adopting an organisation, management and control model equip themselves with a tool designed to inform all interested parties of the duties and conduct incumbent upon them in the performance of their duties and tasks, especially those related to processes exposed to risk.
In fact, the aim pursued by this Model is:
- to disseminate, to all who work in the name and on behalf of the Organisation, any sanctions which may apply to them and any administrative sanctions that may be imposed on the company in the event of violations of the provisions set out therein
- to emphasise that any such conduct, which does not comply with the law or with the “Code of Ethics” to which the organisation adheres in the performance of its business activities, is strongly condemned
- to encourage the company, by virtue of monitoring the areas of activity at risk, to intervene promptly so as to prevent or counteract the possibility of offences being committed.
5. RISK ANALYSIS
In the light of the activities conducted by the Company, a risk analysis will highlight areas or sectors that are more exposed to risks of criminal violation of the regulations specified in Italian Legislative Decree No. 231/01 or, in general, in the Organisation’s Code of Ethics.
a) administrative sector
b) financial management
c) human resources
6. SAFETY AT WORK
Adhering to current legislation, the Organisation:
- has assessed all the risks pursuant to Article 17, paragraph 1 point a) of Italian Legislative Decree No. 81/08;
- implements a health protocol that complies with current workplace health and safety legislation requirements and carries out health surveillance on its employees according to the tasks performed and the specific risks to which they are exposed, including those pertaining to your working environment;
- is not currently subject to suspension or disqualification measures pursuant to Article 14 of Italian Legislative Decree No. 81/08;
- uses work equipment that complies with health and safety criteria and the safety requirements of the prevailing regulations;
- has professionally trained the workers involved in the execution of the work/service/maintenance procedures and made sure that our personnel have received adequate training, information and training on safety matters, including, where applicable, training attested and/or certified by appropriate (public and/or private) bodies.
7. THE MODEL AND CODE OF ETHICS
Therefore, in the relation to risks, the Organisation has deemed it appropriate to compile a “Code of Ethics” document comprising the principles that inspire the management of its business in pursuit of the following goals, namely:
- to base relations with third parties and in particular with Public Administrations on the principles of correctness and transparency;
- to draw the attention of employees, collaborators and all operators to compliance with prevailing laws, with the rules laid down in the Code of Ethics, as well as with all corporate oversight practices;
- to establish a system of sanctions suitable for regulating the measures indicated in the Model.
In fact, the principles mentioned in the Model, although having a different scope, are perfectly integrated with those of the Code of Ethics adopted by the company for their pursued purposes.
As regards the approval and implementation of the reference principles of the Model and the Code of Ethics, pursuant to Article 6, paragraph 1 point a) of Italian Legislative Decree No. 231/01, the Board of Directors is responsible for approving and implementing it by means of a specific resolution.
Similarly, also the Code of Ethics was approved by a resolution of the Board as an integral part of the Organisational Model to which it is bound.
It seems appropriate to focus on the Supervisory Board, which is entrusted with the task of continuously monitoring the effective functionality and compliance with the Model, as well as ensuring its updating.
Article 6, paragraph 4 of Italian Legislative Decree states: “In small organisations, the tasks indicated in point b) of paragraph 1 may be performed directly by the management body“.
9. THE SUPERVISORY BODY
Article 6, paragraph 1 point b) of Italian Legislative Decree No. 231/01 prescribes the establishment of a Supervisory Board, in fact, this legislative provision states that: “The task of updating the models as well as supervising their functionality and observance has been entrusted to a board of the Organisation with autonomous powers of initiative and control”.
Therefore, the requirements are:
- autonomy and independence;
- professionalism in performance;
- continuity of action;
Hence, the functions assigned to the Supervisory Board are the following:
- to oversee the functionality and compliance with the Organisational Model;
- to keep it updated.
10. APPOINTMENT OF THE SUPERVISORY BODY
Furthermore, Article 6, paragraph 4 of the Italian Legislative Decree states that: “In small organisations, the tasks indicated in point b) of paragraph 1 may be performed directly by the management body”
Therefore, in small companies, the functions of the Supervisory Body may be performed by the management body.
11. INFORMATION TO AND FOR THE SUPERVISORY BODY
All employees, collaborators and third parties are required to inform the Supervisory Board whenever an event occurs in relation to any waiver, violation or suspected violation in relation to:
- behavioural rules prescribed by the Code of Ethics and the Organisational Model;
- principles of conduct and methods of execution governed by the protocols and company procedures relevant to the Decree.
In relation to the above-mentioned cases, the Supervisory Board will assess the reports received with discretion and will activate all the investigations deemed necessary.
Furthermore, all current and future employees, collaborators and third parties will be constantly and adequately informed in relation to the implementation of the Model and any updates thereto.
12. SANCTION SYSTEM
In addition, the Model provides for a system of sanctions; in fact, conduct in violation of the Organisational Model, including all attachments, shall be punished pursuant to Article 6.2, point e), and Article 7.4, point b) of Italian Legislative Decree No. 231/01.
The applicable sanctions are those prescribed in Article 7 of Law No. 300 of 20/05/1970 (Italian Labour Code) and the National Collective Labour Agreements applied in the company.
Failure by employees to comply with the obligations and rules contained in this Organisational Model, its annexes and the procedures relating to compliance with Italian Legislative Decree No. 231/01, Italian Legislative Decree No. 196/03 and Italian Legislative Decree No. 81/08 as amended shall entail the following measures, which shall be implemented by the Company in relation to the extent of the shortcomings and their circumstances:
- verbal admonition;
- written reprimand;
- fine not exceeding three hours’ hourly pay calculated on according to tabulated minimum amounts;
- suspension from work and pay up to a maximum of three days;
- dismissal without notice.
Violation by the Employee of the obligations foreseen in the codes, models, annexes referred to therein and/or subsequently issued by the Employer Company constitutes conduct that is relevant from a disciplinary point of view and may lead to the application of disciplinary measures in relation to the seriousness of the conduct and/or possible recidivism as well as the degree of fault, also in relation to the nature of the responsibilities entrusted to the Employee.