The Legislative Decree 231/ 01 introduced into the Italian legal system a direct liability called “administrative” of legal entities, companies and associations (with the exception of the State, local authorities, other non-economic public entities as well as entities carrying out constitutional functions).
The Decree provides that companies may be considered liable for certain crimes (circa a hundred, including corruption, bribery, violation of safety regulations, anti-money laundering, computer crimes, all listed by law) if they are committed or attempted by persons linked to the company, in its interest or to its advantage and the latter cannot prove to have taken adequate measures to prevent such crimes.
This link could vary: they could be employees, executives, members of senior management and those working under the direction or supervision of members of senior management.
The administrative liability adds, but does not replace, that of the author of the offense. The sanctions provided by law may be pecuniary fines and also interdiction, confiscation and publication of the decision.
In some cases, the company or the entity may be exempt from liability provided for by Decree 231/ 01. Among these should be mentioned the case in which the governing body has adopted and effectively implemented a model of organization, management and control suitable to prevent crimes of the type committed. An autonomous body has to be entrusted to supervise the functioning and the effective compliance with the models as well as to take care of updating it. If who committed the crime acted fraudulently evading such models and supervision was adequate, the liability can be excluded.
We strong believe that it is advisable to study and adopt an appropriate organizational model.
The model can not only constitute the condition for the abovementioned exemption from liability, but can also constitute an important opportunity to analyze, improve and implement company’s internal procedures and to spread an “ethic culture” in its inside. Not to mention that the adoption of such model is increasingly requested in the context of contractual relationships with third parties as well as for regional accreditation (for example Lombardy).
How to write an organizational model?
In order that it can perform properly his function, the organizational model can not be draw up on the basis of a standard type of model but, on the contrary, should be the result of a process of analysis that takes into account each organizational complex, as well as the type, number and relevance of risks-offence premised and the operation of the internal control system adopted. In other words, it must be customized to each specific company.
The multidisciplinary team of professionals with whom Scarpellini Naj-Oleari & Associates cooperates (criminal lawyers and organizing consultants among wich Lawyer Alessandro Pistochini and Engineer Giovanni D’Adamo) developed a methodological and business oriented approach for the analysis and the adaptation of organizational models.
This approach complies with the guidelines developed by the major trade associations. The team has the skills to deal with all legal and organizational issues concerning the project, being able to help the company identify the existing gaps and fulfill the necessary consequent actions.
The team advises both in relation to new adoption projects and to adjustment of models already in place. In addition, because of our specific expertise in IP matters, we advise our clients in the study of organizational models that take into particular account some violation of industrial property rights (such as patents, trademark and design rights infringement, copyright violation, etc. ), now included in the list of crimes that presuppose the application of the Legislative Decree number 231/2001.
For more information, please contact us or write to info@studioscarpellini.it
