With a recent judgment (Cassation, Section VI, judgment of 11.02.2020, filed on 7.04.2020, n. 11626), the Supreme Court ruled on the question of the applicability of the discipline provided by the Decree LGS. 231/2001 to entities not established in the territory of the State.
The question is not insignificant if we consider the enormous possibility of relations between companies governed by law and Italian law and the so-called foreign bodies, that is, those entities governed by foreign law which are not based in Italy.
The novelty is in fact the principle of law expressed for the first time since the entry into force of Legislative Decree no. 231/2001 according to which: The legal person is liable for an administrative offence arising out of a criminal offence for which there is national jurisdiction, committed by its legal representatives or persons subject to the direction or supervision of others, irrespective of its nationality and the place where it has its registered office and whether or not there are rules governing similar matters in its State, also with regard to the preparation and effective implementation of organizational and management models to prevent the commission of crimes that are a source of administrative responsibility for the body itself.
The present case concerned acts of corruption in judicial proceedings against a legal assistant in the bankruptcy proceedings of a company for having received from other persons, acting on behalf of two companies governed by foreign law, a large sum of money in exchange for carrying out in their favor acts contrary to the duties of his office. Foreign entities were at the same time accused of the corresponding administrative offence pursuant to art. 25 of Decree 231.
The defensive argument of Foreign Entities
According to the defence argument, Decree 231 does not apply to those companies without a place of business in Italy which merely carry out occasional or purely formal activities on the national territory, since the administrative offence, Although it is the result of the commission of an alleged criminal offence, it is not confused with it and is at best carried out at the place where the institution’s organisation was found to be guilty, i.e. at the place where its decision-making centre is located.
Therefore, in the present case, since the unlawful conduct is attributable to a company having its own management centre abroad and no establishment in Italy, the unlawful conduct cannot be considered consumed on Italian territory, with the consequence that no jurisdiction can be recognized by the Italian Authority.
The decision of the Supreme Court
The Supreme Court rejected the arguments of the defensive party mainly on the basis of the following considerations:
- the literal datum: on the one hand, l’art. 1 of Decree 231, which defines the subjective scope of its application, makes no distinction between Italian and foreign entities. On the contrary, when the Legislator wanted to emphasize the seat of the entity, he did so explicitly, as in the cases of crimes committed abroad governed by art. 4; on the other hand, l’art. 36, by conferring on the competent criminal court for the offences on which they are dependent the jurisdiction to know the administrative offences of the entity, it does not give any importance to the seat of the institution or to the place where the organisational gap occurred and confirms the preference of the law for simultaneus processus;
- the rationale of the 231 system: The objective of the legislation is to ensure that all companies operating in the Italian territory take precautions and appropriate organizational measures to prevent the agents on their behalf conduct in breach of Italian criminal law. Thus, like the treatment of foreigners, foreign legal persons operating in the State will also be required to comply with the obligations imposed by Italian law, in accordance with the principles of mandatory and territoriality enshrined respectively by art. 3 and 6 c.p.; 3.
- distortion of competition: in fact, if Decree 231 was not applied to foreign entities without headquarters in Italy, they would be granted impunity for failure to comply with the obligations of organization provided therein, thus granting him preferential treatment to the detriment of foreign entities based in Italy and Italian entities, which are required to adopt those (onerous) precautions necessary to comply with the provisions of Decree 231.
Therefore, even the Foreign Agency without registered office in Italy can be judged by the Italian judge and held responsible ex Legislative Decree no. 231/2001, regardless of its nationality or the place where it has its registered office and regardless of whether or not there are rules governing the same subject matter in the country to which it belongs.
The judgment, therefore, confirms and reinforces the opportunity for foreign companies to adopt organizational models, at least related to the activities carried out in Italy, suitable to prevent the risk of commission of crimes presupposed by their leaders or subjects.
Responsibility of the foreign holding company for the crime committed within the Italian subsidiary
Finally, it should be borne in mind that even if the foreign company decided to organize itself through a subsidiary based in Italy, this would not prevent it from adopting the organizational measures necessary to prevent cd. This is the European Parliament’s responsibility.Although it is not expressly regulated by Decree 231, the case law now peacefully admits the configurability of a liability of the foreign holding company even if the alleged offence was committed within the framework of a subsidiary established in Italy, when the following conditions are met:
- • the alleged offence was committed by an entity belonging to the subsidiary in partnership with an entity of the parent (or the representative of the parent company is also recognised as de facto director of the subsidiary);
- the latter also acted in the interest of the parent company.
Therefore, the charging of the administrative fault to the Italian subsidiary does not protect against a possible rise in liability the parent company, which will be able to defend itself on a subjective level only by demonstrating that it has adopted a suitable and effective organizational model, regardless of the one implemented by its subsidiary.