Recent developments in corporate criminal liability

Legislative Decree No. 231/2001 (“231 Law”) on corporate criminal liability is undergoing significant changes. After taking stock of the last twenty years, the Italian minister of justice has announced the creation of a working group to revise the 231 Law.

Moreover, recently, Law Decree No. 152/2021, which contains urgent provisions to implement the Italian National Recovery and Resilience Plan and prevent mafia infiltration, broadened the scope of application of the compliance programs pursuant to the 231 Law (“231 Model”) to combat occasional attempts at mafia infiltration into private entities.

1. A new working group to amend the 231 Law

On October 20, 2021, at the conclusion of a panel on corporate criminal liability held at LUISS Guido Carli University, Italian Minister of Justice Marta Cartabia delivered remarks on the application and development of the 231 Law. During those remarks, she announced the intention to create a dedicated working group to revise the law in light of (i) the current criminal justice system, which has undergone many changes in recent years; (ii) new technologies, which offer a chance to update the approach to controls and compliance in innovative ways; and (iii) the need for integrated compliance programs that span all areas of risk, including human rights violations.

Based on Cartabia’s remarks, we have identified several areas that we expect the working group may discuss:

  • Reduction of the number of predicate offenses: the minister reported that the 231 Law is unevenly applied by the Italian courts[1] and corporate criminal liability cases mainly concern few predicate offenses (i.e., HSE crimes, bribery and corruption, and financial crimes).
  • Differentiated approach to corporate criminal liability/penalties based on company size: the minister did not speak about this at length, but there is certainly room for discussion here.
  • Minimum standards for the 231 Model: the minister mentioned this and spoke of the need for a bespoke compliance program tailored to the specific risk areas of each individual company.
  • Introduction of new mechanisms for encouraging compliance, including post factum (e.g., DPAs): the minister stressed the need for corporate criminal law based on prevention, remediation, and rehabilitation. Prevention is already an essential part of the 231 Law, and perhaps there is room for discussion about remedial mechanisms for companies, with similar experiences in other countries offering grounds for comparison.

 2. The 231 Law as a tool to combat occasional attempts at mafia infiltration

Law Decree No. 152/2021 amended, inter alia, the existing Italian Anti-Mafia Code (Legislative Decree No. 159/2011, “Anti-Mafia Code”) by introducing several provisions strengthening the current anti-mafia prevention system within private entities.

The newly introduced Section 94-bis of the Anti-Mafia Code provides that when a company occasionally facilitates attempts at mafia infiltration, the administrative authority (“Prefetto”) can order it, inter alia, to adopt—for a period of no less than six months and no more than twelve months—“self-cleaning” measures to remove and prevent the causes supporting facilitation of mafia infiltration, including the 231 Model pursuant to Sections 6, 7, and 24-ter of the 231 Law.[2]

These self-cleaning measures are likely not to be limited to the prevention of crimes strictly related to organized crime, but also to be suitable for detecting and preventing other offenses that are in some way connected to mafia infiltration with respect to company activities.

Adoption of the 231 Model and other prescriptions are taken into consideration by the administrative authority when it evaluates and certifies the elimination of the risk of occasional facilitation of mafia infiltration and any other attempts at infiltration.

[1] The Minister of Justice noted that the 231 Law is mainly applied by the district courts of Milan and Bologna, while it is rarely applied by other district courts, such as those of Naples and Palermo.

[2] Sections 6 and 7 of the 231 Law govern the implementation of the 231 Model for prevention of corporate criminal liability. Section 24-ter of the 231 Law establishes corporate criminal liability for organized crime–related offenses.

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