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Italian Legislative Decree n. 231 of 8 June 2001 introduced the concept of company liability, it states that legal entities may be held criminally or financially liable in relation to certain predicate offences which are committed or attempted by senior managers or subordinates in the interest or for benefit of the company.

Ratio legis and scope of the legislation

The “ratio legis” is that the company or other legal entity is considered directly responsible for certain crimes, which are understood to occur due to a lack of organisation and supervision: it is an act of omission and negligence that allows the crimes to take place as a result of a non-existent or inefficient management control system.
The scope of application of the legislation is to be found in the “predicate offences”, which include business crimes (false or misleading company statements), workplace accidents, unlawful processing of personal data, environmental offences, money laundering (misuse of privileged information).

 

An organisational model from the perspective of risk assessment

A tool for combating illegality within a company is the effective – and not just formal – adoption of an organisational model, consisting of procedures and rules of conduct which are specific to the company and which can be implemented successfully. To do this, it is necessary to adopt a policy of risk assessment and gap analysis within the risk management model:

  • Process analysis: breaking down the business activity into individual processes, checking each process on the basis of its function and the achievement of the desired result, checking whether the process complies with applicable legislation;
  • Risk assessment: identification of the points within the process that are at greatest risk, risk assessment and specification of prevention and protection measures
  • Control: implementation of a control mechanism.
    This is done through the Supervisory Board, which is independent, has financial strength and is responsible for verifying full compliance with the procedures set out in the organisational model.

 

The optional nature of the model: a distinctive feature of Legislative Decree 231

While in other fields – such as workplace safety – the provisions regarding risk limitation are mandatory legal requirements, the management organisational model that counteracts the commission of predicate offences is optional. The relative legislation therefore leaves the application of an organisational model to the discretion of decision-makers within the company.

 

The “231” Organisational Model: manage the processes, protect the company

While the law states that the adoption of an organisational model is optional, what the company must watch out for is precisely the absence or ineffectiveness of a 231 organisational model, or the absence or inaction of the supervisory board.

This is because not putting an adequate organisational structure into place automatically renders the company liable for the crimes committed, unless the company proves (Article 6 of Legislative Decree 231/2001) that it had adopted effective organisational and control models before the offence took place. This principle is referred to in a key judgment of 2007 – the first following publication of Legislative Decree 231 – in which the Court of Milan acquitted a public limited company of the crime of market manipulation as a direct result of its organisational model.

Adopting an organisational model therefore becomes a cornerstone of how a company manages its processes while, at the same time, protecting itself from unlawful actions committed by its staff.

Activities

Consulting

PLS is able to offer you specific advice on the administrative liability of legal persons, as required by Legislative Decree 231/01, thanks to a team of professionals experienced in compliance and criminal matters, so as to ensure a multidisciplinary approach. In fact, profiles with different professional experiences coexist within it and are able to offer a service with high quality standards.

At PLS we study the procedure that best suits your needs, analyze the characteristics of your company and the responsibilities related to your business. Consequently, we identify the sensitive areas of commission of the predicate crimes and proceed with the drafting of the Organizational Model of which we guarantee a correct understanding also thanks to the training provided to the recipients of the same. The effectiveness of the Model is also guaranteed by the implementation of company procedures, operating instructions as well as the drafting of implementation protocols made available by the company.

Finally, PLS – in collaboration with PLS LEGAL – also intervenes in the event that critical situations emerge by providing advice and assistance within the 231/01 processes, preparing, if necessary, “reparative” Models.

Chairman of the Supervisory Board and external member of the Supervisory Board

Qualified person able to implement appropriate checks and controls on the implementation protocols drawn up in compliance with the organizational model as provided for by Legislative Decree 231/01, equipped with multidisciplinary skills to ensure significant coverage of the checks and controls useful to prevent the commission of the so-called predicate crimes.

Main tasks

  • Verifies the consistency of the organisational model with the implementation protocols derived from the Organisation, Management and Control Model (OMM)
  • Defines and executes an audit plan
  • Interacts with top management and the board in order to illustrate the verification and control activities carried out
  • It is the body to which any communication, even anonymous, relating to hypotheses, even potential, of violation of the model.

The MOG or Model 231

Model 231 – what it is: the 231/01 Organisational Model, also known as the Organisation, Management and Control Model (MOG), is the document that indicates the organisational procedures defined by the entity to prevent the commission of offences by a senior or subordinate person.

Minimum MOG content

  • Definition of ethical principles: formulation and sharing of a Code of Ethics
  • Process assessment: definition of activities, roles and business processes
  • Risk assessment and gap analysis: identification of the points of the company system at risk of crime
  • Risk management: development of behavioural protocols – to be shared with the trade unions
  • Auditing: activation of an auditing system through the Supervisory Body (SB), with definition of the SB’s operating mechanisms and the relations between it and top management
  • Enhancement: Model upgrade and enhancement actions
  • Who is responsible for its editing: the top management
  • Reference legislation: d.lgs. 231/01

The adoption of the MOG becomes the main vehicle for combating illegality in the company. From this it can be seen that the correct implementation of the MOG is the main action with which the company manages processes and protects itself from any unlawful work by personnel.