d.lgs. 231/2001

Legislative Decree 231 of 8 June 2001 on the ” Discipline of administrative responsibility of legal entities ” introduced the responsibility for entities to the legal system, in relation to illegal activities arising from crimes committed by individuals who work for or on behalf of entities and, or in any case, in their own interest or for their own benefit.

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The decree
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The liability of entities, formally of an administrative nature, is essentially criminal in nature because it:

  • is derived from criminal offenses (those expressly mentioned in the Decree)
  • is ascertained in accordance with the safeguards provided by criminal proceedings
  • involves the application of particularly afflictive penalties (up to permanent disqualification from exercising corporate activities).

This liability is autonomous and, as such, is in addition to that of the individual who actually committed the offence. The Company’s assets are at stake, even if the material author of an offence is not identified or cannot be held responsible, or if the offense is extinguished for a reason other than an amnesty.

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The penalties for companies are particularly severe:

  • Fines
  • Disqualification sanctions, applied as a precautionary measure:
    • disqualification from carrying out corporate activities;
    • suspension or revocation of authorisations, licenses or concessions related to the offence;
    • ban on contracting with public authorities;
    • exclusion from grants, loans, contributions or subsidies and the possible revocation of those granted;
    • ban on advertising goods or services;
  • Confiscation of profit
  • Publication of the court’s decision.
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The Decree provides for an exemption for the Company if:

  • prior to the commission of the offence, the governing body has adopted and effectively implemented an organisational, management and control model (“Organisational Model”) capable of preventing offences under the Decree;
  • a Supervisory Board (“SB”) has been established with autonomous initiative and control powers, with the task of supervising the functioning and compliance with the model and updating it;
  • the persons committed the offence by fraudulently evading the Organisational Model;
  • the offence was committed without an omission or insufficient level of supervision by the Supervisory Body.
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Although the adoption and effective implementation of the model is not a legally mandatory, it is the only tool available to a company to prove its innocence in relation to a crime, and ultimately, to be exempt from the liability established by the Decree.

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Our approach

The aim of a 231 project is to implement an organisational, management and supervision model in the company to prevent the commission of offences under the Decree.
For the purposes of the application of the exemption provided for by the Decree, this organisational model must be formalised and operational, and the activities of the relevant company functions must be traceable. To this end, the objective of a project is also to check the existence of the formalities (documents, procedures, internal regulations) deemed necessary by the Decree, case-law and best practices.

fasi

RC Advisory is available for the development of all phases of a project

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Our assignments

RC Advisory’s partners participate as members of different types of supervisory bodies, or are the Chairmen of the same or monocratic supervisory bodies in different important national and international situations, in several industries. Below are the main assignments undertaken:

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Edison Group

  • Elite S.p.A.
  • Edison Trading S.p.A.
  • Edison Energia S.p.A.
  • Edison Energie Speciali S.p.A.
  • Edison Distribuzione Gas S.p.A.
  • Edison International S.p.A.
  • Edison Stoccaggio S.p.A.

Maire Tecnimont Group

  • Maire Tecnimont  S.p.A.
  • Tecnimont  KT S.p.A.
  • MGR S.p.A.
  • Birillo S.c.a r.l.
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AMSA S.p.A.
Consulta Srl
Gucci Group

  • Guccio Gucci  S.p.A.
  • Gucci Logistica S.p.A.
  • Tiger Flex S.r.l.

Galbusera S.p.A.
Millbo S.p.A.
Henry Schein Krugg S.p.A.
Philips Group

  • Saeco S.p.A.
  • Philips Medical Capital
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La Gardenia Beauty S.p.A.
ING Lease Italia S.p.A.

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