The Legislative Decree n. 231/2001, laying down the “Discipline of the administrative responsibility of juridical persons, companies and associations depending on a crime”, has been defined as a “Copernican revolution”, laying down, for the first time, the principle that entities may commit a crime and – consequently – be sanctioned in a proceeding by means of the structure and the guarantees that are specific tocriminal trial. Under this innovative potential, the Decree  has been, since its introduction, subject of interest and action by the legislator  – with a set of legislative changes designed to widen the range of liable crimes - and also by the jurisprudence, due to clarify its range and content.

In the light of the so introduced changes, on last July Confindustria updated the Guidelines – initially drafted on 2002 and revised on 2008 – in order to provide companies which the legislative decree is addressed to, important provisions about the construction of “Mog – Organisation, management and control models”. 

The central role of MOG in the “231 System”, suitable for preventing crimes and, so, for allowing exemption from corporate liability, enables to understand the importance of Guidelines, as point of reference for the companies involved by the related provisions. In this regard, the section about “small enterprises”, to which the Working Group of Confindustria provided facilitating procedures relating to their dimensional profile, deserves particular attention.

The choice to simplify MOG for small business realities, has been carried out by the Guide Lines since their  first draft; however, notwithstanding many recent interventions about PMI, they were unchanged on this regard. The reason for such simplification must be identified under the provisions of Legislative Decree n. 231/2001; in particular Article 6 (4) provides – for small enterprises – the faculty of entrusting the duties of supervising on the functioning and observance of the Model to the same managing body, avoid the establishment of an “ad hoc” body.

The first phase in the MOG’s construction consists in identifiyng risks: it is called “Risk assessment”, carried out through the analysis of core business’s activities and of managing body’s related powers. The subsequent phase of “risks test” consists in the identification of processes involving offence-risks, having regard to the list of predicate crimes under the “special section” of the Legislative Decree n. 231/2001. The content of the model will be processed as well, composed of a set of protocols containing measures to prevent the specific enterprise’s offence-risk. The model, in order to be effectively implemented and properly functioning, as required by the decree, must be constantly monitored and, where necessary, updated.

According to the simplification proposed by the Guidelines, all the above mentioned activities could be entrusted to a single responsible, the managing body, required to carry out the functions of adoption, implementing and monitoring the model. Thefocus is mainly on the predicate crime of “Manslaughter and Serious Personal Injury or Grievous Bodily Harm, committed in violation of health and safety at work regulations”, as introduced by the Legislative Decree n. 81/2008.

Relating to these crimes, the Guidelines propose a simplified distribution of tasks due to the reduced dimensional profile. Particularly, in case of industrial companies with up to 200 workers, the “SPP – Prevention and Protection Service” may be entrusted to an organizational apparatus outside the Company or the individual production unit. In the other case of industrial companies with up to 30 workers, the SPP may be exclusively entrusted to the managing body, identified as the same employer. 

In a comparable way, the supervisory activity may be entrusted to the employer: this one becomes the sole decision-making centre in matters related to the prevention and safety at work.

This approach is open to criticism not so much to its contents, but rather to the considerable limitation of the survey and, consequently,  to the usefulness of the small enterprises applying Guidelines. As known, the list of predicate crimes founding the corporate administrative responsibility is very extensive and so the companies – small and large alike – should adopt an appropriate model to prevent the related offence-risk. All this being said, it’s difficult understanding why the Working Group of Confindustria did take into account the sole health and safety workplace crimes: it seems to be the only offence-risk area in the small enterprises. For example, you can think of offences against Public Administration, environmental crimes, cyber crimes or corruption: all these crimes may be committed also by small enterprises.  For the small enterprises who align themselves uncritically with the prescriptions contained in the Guidelines, there is the risk that they adopt an incomplete – since it is limited to the prevention of the sole offences mentioned above – and incorrect Organisation Model. Considering the ratio of the legislation on administrative liability of entities, the Model shall be conform not so much (however, not only) to the requirements laid down by representative  associations, but rather and firstly to the regulations pursuant to the Decree. The Legislation distinguishes between competences assigned to the managing body – like the adoption and the effective implementation of the model – and to the regulatory body, responsible for monitoring and verification of the Model. Only for small enterprises, it is possible to entrust the management body the supervisory functions; this possibility is legitimate to consent the exemption of corporate liability, only if the specific core business is not a risk of crime.

According to the Italian Supreme Court of Cassation’s recent judgment “Impregilo” (judg. n. 4677/2014), entrusting the supervisory functions to the managing body – to avoid the establishment of a appropriate body – should be looked at with caution. The Court, in an emphatic and clear way, states: “The adoption of the Model is not enough to justify the exemption from corporate liability, because it is necessary also the establishment of a regulatory board, endowed with autonomous powers of initiative and oversight, with the duty of supervising the adequacy and functioning of the Model (…) if its initiative and control powers were to be effective, it should be presumed that there is no subordination of the parent to the subsidiary. In fact, the subsequent paragraph 2, under d), establishes obligations of disclosure towards the regulatory board in charge of supervising the functioning and compliance of the Models. This evidently allow the independent exercise of the supervisory power together with an appropriate system of measures to inflict penalties in case of non compliance with the principles (pursuant to paragraph 2, under e) ), in order to lend credibility to these supervisory functions”.

In the light of the stringent legislation and the rigours of its case-law, it follows that any standardisation or simplification  is to be permitted, not even for “PMI”- small enterprises: the offence-risk is not always in proportion to the size of enterprise.

Paola Perinu
Gianluca Bellino

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