of the crime. These fines apply upon
the ascertainment of corporate liability.
Moreover, in some cases, the following
debarments are also applicable:
suspension of business activities,
suspension or revocation of the
authorizations, concessions, licences or
permits related to the crime, prohibition
from entering into contractual agreements
with the Italian public administration,
exclusion from all government
concessions, grants, loans or subsidies,
and possible revocation of those granted
previously, and, finally, prohibition from
advertising goods or services. These
sanctions are applied only upon certain
conditions, however. If a "restraining"
sanction is applied, the judgment may be
published.
Moreover, debarments may also be
imposed as a precautionary measure, on
the basis of the presumption of serious
evidence of the company's liability
and even while a trial is still pending.
Alternatively, an official receiver for the
company may be appointed by the court.
The Decree provides, on certain
conditions, for the exemption of
companies from the liability. In this
regard, it is necessary to distinguish
between a criminal offense committed
(A) by managers or (B) by employees
subject to their direction (this due to the
different presumptions forming the basis
of company liability).
In case A, in order to avoid any
liability, the company must provide
evidence of the following facts:
commission of any 231 offense, an
appropriate management, organization
and control model ("231 Model") in
order to prevent the commission of
such offenses;
of the 231 Model and of keeping it
up to date has been assigned to an
independent Supervisory Board with
appropriate auditing and surveillance
powers
fraud, the provisions of 231 Model
and the policies implemented by the
company in order to carry out the
231 Model.
the company must be able to prove that
it has duly controlled and supervised the
actions of its non-managerial employees.
Thus the liability of the company may
be excluded when, notwithstanding the
failure to comply on the part of the non-
managerial employees of the obligations
of direction or supervision imposed
on them, the company has adopted an
efficient preventive 231 Model.
The enforcement of these provisions
has caused a certain amount of both
economic and credibility damage to
a number of well-known companies
(including ThyssenKrupp, Morgan
Stanley, Bank of America, Credit Suisse
and Citibank). Moreover, the lack of a 231
Model and of an independent and efficient
Supervisory Board may be considered as a
hint of an overall lack of proper corporate
control systems, if not of the propensity
of the company to commit violations other
than 231 offenses.
This particular trend, together with the
range of offenses sanctioned by Italian law
(a range wider, as mentioned above, than
similar laws in other countries), must be
carefully evaluated by foreign companies
doing business in Italy, in order to draft
a 231 Model that provides appropriate
protection, which while it may be based
on similar organizational models already
used by the foreign corporation must
reflect the somewhat different realities in
Italy and, as such, requires attention to
certain specific areas.
approximately 130. Moreover, the number of such
criminal offenses has been increasing each year.
system (in the event of any violation). The supervisory
board must exercise its powers of control and initiative
even with respect to the levels of implementation and
efficiency of the Model in question.