CORPORATE LIABILITY: REGULATORY ADDITIONS, DONE AND TO BE DONE.

After the publication of the Law n. 185 of December 15, 2014 in the Official Journal, the list of offences underlining the company’s liability, under the Legislative decree n. 231/2001, has now been completed by the introduction of the “self money laundering” offence.

The self money laundering has been introducted for the purpose of punishing “with the imprisonment ranging from two to eight years, whoever, committing or attempting to commit a crime without criminal intent, uses, exchanges, transfers money, goods or other benefits resulting from an offence in economic or financial activities, in order to prevent the identification of their criminal provenance”.

With regards to the effects on company’s liability, the Law n. 186/2014 statues:
“Article 25-octies of the Legislative Decree n. 231 of June 8, 2001 shall be amended as follows:
a) in the paragraph 1, the words <<and 648-ter>> are replaced by the following: <<648-ter and 648-ter.1>>;
b) <<and also self money laundering>> are added to the heading of the article”.

But the legislator is intended to go beyond: a reform on corporate crimes, under the Articles 2621 and 2622 c.c., referred to in Article 25-octies of L.D. n. 231/2001 is bound to arrive.

In this regard the Italian Government has presented to the Senate a bill concerning “measures to enhance the combat of transnational organized crime and of illicit patrimonies” in order to strengthen the penalties.

➢ “False corporate notices” and “False corporate notices damaging the company, shareholders and creditors”

Under the aspect of the sanctions, the penalty of the imprisonment up to two years is replaced by the one from two up to six years; under the structure of the specific case, the malicious intent and the non liability’s condition (concerning valuations that differ by no more than 10% from the correct one) shall be eliminated.

The different structure of the specific case, regarding the malicious intent, is to extend the punishability: with the elimination of the intention of “misleading shareholders or the public” more emphasis will be placed on the conduct of misleading committed with the sole intent of profiting (“in order to gain an unlawful profit for itself or for others ”).

Concerning the non liability’s condition, the bill eliminates the paragraph 4 in the Article 2621 c.c. and the paragraph 8 in the Article 2622 c.c., on the basis of wIn hich the fact may not be pthe eunished if it is a “consequence of estimated valuations which, taken singularly, do not differ by more than 10% from the correct one”.
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Both these modifications represent a step backwards on the position taken with the rthe fieforms of 2supe002 (under the Legislative Decree n. 61/2002) and of 2005 (under the Law n. 262/2005) designed to limit the applicisation of the crime of forgery: the tendency was to penalize even minimal variations in the financial statement and to condemn who acted accepting the risk that the financial statement could be false.

➢ Corporate Crimes

The Article 25-octies of the Legislative Decree n. 231/2001, in the ambit of the offences underlining the corporate’s liability, is drafted almost particularly: it specifies the active parties in the crime and also the imputation criterion of “interest”, and on this way it has a special connection with the article 5 (subjective and objective imputation criteria).

The criterion of the “interest of the company”, rather than the general one of “interest or advantage of the company” risks being interpreted as a derogation from the general objective imputation criterion.

The article currently individuates the active parties in the crime, in particular the senior management, in “general managers, statutory auditors and liquidators”, excluding everyone who “manage and control the Company, also de facto”. As for the previous case, the risk is to allow interpretations intended to condemn only the individuals mentioned above.

The purpose of the bill is to avoid similar interpretations, increasing the coherence of the provision with the others articles under the “special section” of the L.D. n. 231/2001. In 2002, the Senate Judiciary Committee already considered the provision as “superfluous, merely a repetition”.

Actually we cannot imagine the final verdict of the legislator, but despite of that we have to consider that the extension of the provisions under the Articles 2621 c.c. and 2622 c.c. (as well as the corporate’s liability, under the L.D. n. 231/2001) is probably finalized to facilitate the judiciary’s opinions on the repression, and not to really raise awareness.

Paola Perinu | pperinu@blblex.it