Decree 231 of 2001 has introduced into the Italian legal system the concept of “quasi-criminal” corporate liability for certain offenses committed by the top managers or employees or agents of a company in the interest of the company itself. This liability, although formally characterized as administrative by the legislature, is assessed by the criminal court in the context of criminal proceedings.
Pursuant to Article 1, the provisions of Decree 231 of 2001 apply both to companies deemed to be legal persons and to companies and associations that do not meet the definition of a legal person. The decree does not apply to the State, local public entities, non-economic public entities, or entities that perform constitutional functions.
Decree 231 of 2001 sets out a list of crimes which may trigger corporate liability. The list has been subject to legislative amendments that have considerably expanded the number of offenses for which a company may be held liable. Categories of offenses that may result in liability for a company include the following:
- Bribery offenses;
- Other offenses against the public administration (e.g. misappropriation of public funding, fraud against the State or a public body, fraud to obtain public funding, or IT fraud against the State or against a public body);
- Private-to-private corruption;
- So-called “corporate crimes” (e.g. false company statements, false creation of share capital, unlawful return of capital, transactions to the detriment of creditors, improper allocation of company assets by liquidators, stock price manipulation, hindering public supervisory authorities from performing their functions);
- Crimes committed for purposes of terrorism;
- Crimes against individuals’ freedom (e.g. reduction or maintenance in slavery or servitude, child prostitution and child pornography, human trafficking, purchase and sale of slaves);
- Market abuse;
- Money laundering, handling stolen goods, use of money, goods or assets of illicit origin and self-laundering;
- Manslaughter or serious bodily harm committed through breach of laws governing health and safety in the workplace;
- Organized crimes;
- Felonies against industry and commerce;
- Inducement not to make statements or to make false statements to the courts;
- Infringement of intellectual property rights;
- Employment of illegal foreign workers;
- Environmental crimes;
- Racism and xenophobia;
- Sport competition frauds, unlicensed gambling or gambling by forbidden means;
- Cross border crimes within the meaning of Law n. 146 of 2006;
- Tax crimes (such as, concealing or destroying accounting documents or fraudulent failure to pay taxes);
- Embezzlement; and
- Smuggling crimes.