Pursuant to Decree 231 of 2001, an Italian company may be held liable for an offense identified under the Decree if it is committed by individuals (a) who hold positions of representation, administration or management of the company or of one of its organizational units with financial and operating autonomy or who, also de facto, manage and control the company itself (the so-called “top management”), or (b) who are under the management or supervision of the top management (therefore the company’s employees or agents), in the company’s interest or, in any event, resulting in a benefit or advantage for the company. The interest is the expected benefit deriving from the crime as evaluated ex ante, before the commission of the crime. The advantage is the profit that concretely derived from the commission of the crime, evaluated ex post.
Case law has clarified that the company may be held liable if the interest pursued by means of the offense coincides at least in part with that of the company. As far as the concept of advantage is concerned, case law has clarified that this must be assessed by reference to the time after the criminal conduct has been committed.
A company can be held liable for an offense even if (i) the offender has not been identified or cannot be charged, and/or (ii) the crime is extinguished for a cause other than amnesty (e.g. for the expiry of the statute of limitations for the individual).