Assistance to entities in proceedings concerning liability for offences under Legislative Decree 231/2001 231/2001
When a company is involved in proceedings under Legislative Decree 231/2001, the defence of the entity requires an assessment that is separate from the position of the individual charged with the predicate offence. The analysis focuses on whether the company had an interest in, or obtained an advantage from, the alleged conduct, the organisational structure in place, the effective implementation of the 231 Model and the link between the alleged offence and the company’s organisation.
Under Article 5 of Legislative Decree 231/2001, an entity may be held liable for offences committed in its interest or to its advantage by persons in senior positions or by persons subject to their direction or supervision. The organisational model becomes relevant to the defence when it is suitable to prevent offences of the same type as the one that occurred and has been effectively implemented.
The Firm assists companies in managing their position during investigations, 231 allegations, requests for precautionary measures, assessment of procedural strategy, production of documentary evidence and use of the organisational safeguards already adopted.
Activities covered
Why it matters
Distinguishing the entity from the individual
The company’s position must be assessed independently from that of the directors, managers or employees involved.
Protecting business continuity
The management of disqualifying measures and financial consequences requires careful attention to the company’s ability to continue operating.
Making use of the adopted Model
The defence may rely on the suitability of the 231 Model, its effective implementation and the controls that have been documented.
Coordinating defence and organisation
The proceedings may also require corrective measures affecting the 231 system, internal procedures and controls.
FAQ
Can a company be prosecuted even if the offence was committed by an individual?
Yes. Legislative Decree 231/2001 provides for an autonomous form of liability of the entity for certain offences committed in its interest or to its advantage by persons in senior positions or by persons subject to their direction or supervision.
Does the defence of the entity coincide with the defence of the director?
No. The company has an autonomous position. In some cases, the defence interests of the entity and of the individual may coincide; in others, they may diverge. For this reason, the entity’s position must be assessed separately.
Can a 231 Model adopted before the offence prevent liability?
It may be decisive if the model was suitable to prevent offences of the same type as the one that occurred and was effectively implemented. Article 6 of Legislative Decree 231/2001 sets out the conditions for exempting the entity from liability in the case of offences committed by persons in senior positions.
What happens if the entity did not have a 231 Model?
The absence of a model makes it more difficult to argue that the company had an adequate preventive organisation. However, the defence must still assess all the requirements for liability: the predicate offence, interest or advantage, the role of the person involved, the link with the organisation and the available evidence.
What sanctions can the entity face?
Sanctions may be financial, disqualifying, patrimonial and reputational. Article 9 of Legislative Decree 231/2001 provides for monetary sanctions, disqualifying sanctions, confiscation and publication of the judgment.
What are disqualifying measures?
They are measures that may directly affect the company’s business, such as disqualification from carrying out its activity, suspension or revocation of authorisations, prohibition on contracting with public authorities, exclusion from benefits or a ban on advertising goods or services. They may also be relevant at the precautionary stage.
Is it useful to update the 231 Model after an allegation?
Yes, but an update after the event does not replace the assessment of whether the model was suitable at the time of the alleged offence. It may, however, be relevant to correct weaknesses, strengthen safeguards and manage the risk of recurrence.
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