Decree 231 of 2001 does not include specific provisions regarding foreign companies. However, a general principle of Italian criminal law1 establishes that all offenses committed in Italy can be punished under Italian law, even if they are committed by a foreign natural person or a foreign company. Offenses are considered to have been committed in Italy when the act or omission representing the offense takes place in Italy, or when the offense produces a harmful effect in Italy.
Pursuant to this general principle, criminal courts have ruled that foreign companies may be held liable under Decree 231 when their directors, managers, employees or agents commit an offense contemplated by Decree 231 in the territory of Italy or, if the consequences of the crime were suffered in Italy, even if the entity’s registered office is abroad and has no Italian branch.
Further clarifications and case-law:
- The Corte di Cassazione (Italian Supreme Court) in Decision No. 11626 of 7 April 2020 confirmed that foreign companies – even without any Italian registered or secondary office – may incur corporate (administrative) liability under Decree 231 when the predicate offence is committed in Italy by persons acting in the company’s interest or to its advantage.
- The extraterritorial application of Decree 231 to companies whose head office is in Italy for offences committed abroad remains subject to the conditions set out in Article 4 of Decree 231 (i.e., offences by persons functionally linked to the entity, and in the absence of prosecution by the State where the offence was committed).
- While the Decree itself does not expressly regulate the case of foreign companies having no Italian seat, the case-law now firmly establishes that the geographical location of the company’s headquarters or absence of an Italian branch does not preclude liability under Decree 231.
1 See Article 6, Criminal Code.