IV. Italian ongoing activities and future commitments

Administrative liability of companies

“Twenty years after the approval of Legislative Decree No. 231 of 2001, which governs the administrative liability of companies and entities, the Ministry of Justice has recently set up a working group with the CNPDS (National Centre for Prevention and Social Defence Foundation), Confindustria and Assonime. The aim is to measure the effectiveness and consistency of regulations on administrative liability for crimes of collective entities within the country. and to assess the appropriateness of any reforming measures. In particular, the working group intends to propose solutions to remedy the following critical aspects of the current legislation:

– insufficient focus on the size and organizational complexity of companies covered by Legislative Decree No. 231/2001, with particular reference to small and medium-sized companies, as well as public bodies;

– heterogeneous nature of the catalogue of offences;

– difficult adaptability of criteria such as interest and advantage to cases when the offence upon the company makes it directly responsible;

– lack of clarity regarding the composition and powers of the Supervisory Board;

– requirement of fraudulent avoidance in cases where the offence is committed by a senior officer/manager;

– low appreciation of national and international standards incorporated in organizational business models;

– impact on judicial (un)assessment over business models;

– lack of legislative recognition about procedural collaboration from companies (e.g. probation as for US DPA and NPA), against the introduction of non-accountability of physical persons (e.g. in tax crimes and crimes against the public administration);

– evaluation of the potential impact of precautionary measures, both of a real and prohibitory nature, also by virtue of the correlation between precautionary measures and definitive sanctions as governed by Legislative Decree No. 231/2001;

– complexity of the sanctioning system, having regard to limited pecuniary sanctions, complex nature of confiscation, possible impact of prohibitory sanctions, absence of sanctions expressly aimed at favouring a compliant re-organization of the entity.” (p. 17)

Gender dimension

“Equally relevant is the recent legislative reform on class actions with respect to entrepreneurial plaintiffs, which took place with Law No. 31 of 12 April 2019, entered into force on 19 May 2021. In its executive dimension, this measure provides for the possibility for the competent court to impose on the company concerned the obligation to disclose relevant documents in case claimants demonstrate that such documentation was necessary for the decision on the case.” (p. 34)

ANNEX 1 – Accountability Grid and Assessment Tools for the Implementation of the NAP

“2. Update the implementation assessment information of Legislative Decree No. 231/2001 in order to evaluate its extension in terms of objectives and application of the administrative liability of legal persons, and to pursue the following objectives in this area: – efficient asset management and economic qualification of assets by treating them as a source of wealth for the community; – the fight against the crisis and the rate of unemployment suffered by economic sectors most affected by measures to counter the epidemic emergency (catering and the gastronomic sector; tourism/hotel sector; small businesses/individuals in the craft and retail sectors of Made in Italy); – the prevention of the social fallout related to the confiscation of business and, in particular, the disaffection of the citizenry towards criminal justice operators; – the promotion of a culture of sustainability in its dimensions (economic-social-environmental), through the careful and accompanied reuse of the confiscated business assets; – the implementation of inclusion policies that enhance the value of the human being coming from the most socially fragile contexts, with particular reference to the contribution offered by female population, through its full involvement in management and in social recovery of the assets in question; – the assistance to companies towards a successful restructuring that makes them fully autonomous, capable of being self-sustaining and supportive for their own community, thanks to the sustenance provided by virtuous operators – public and private; – the assistance to young people towards self-entrepreneurship, with the aim of forming generations with a critical spirit capable of grasping the needs of their own context and of approaching problems posed by the current economic model in a constructive manner, encouraging a sustainable transition and, above all, making them learn and, by learning, do.” (p. 61)

“51. In the framework of the monitoring action foreseen in the present NAP, the following priorities are established: (i) undertake an up-to-date mapping of the national legal framework on corporate responsibility for human rights, any available remedies, and subsequently develop practical guidance; (ii) identify any gaps or barriers that prevent or render less than fully effective access to judicial remedies for victims of business-related abuse, especially with respect to extra-territorial violations, including on the basis of the relationship between primary and subsidiary companies; (iii) reconsider the introduction of legislative measures or the reform of those currently in force to strengthen access to an effective remedy in the fields of civil, criminal and administrative law.” (p. 68)

“52. As part of the overall reform of the judicial system, raise awareness of: (i) remedies against the excessive length of civil proceedings; (ii) measures to strengthen specialized courts for companies, including by extending their jurisdiction to actions for consumer protection, unfair competition, misleading advertising; (iii) introduction of criminal law provisions against economic crimes, including those committed abroad.” (p. 68)