Organisational Models 231
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Governance tools
Legislative Decree No. 231 of 8 June 2001 introduces offences of corporate administrative liability committed by legal persons.
The range of offences that currently constitute corporate administrative liability offences is very broad: from offences of grievous bodily harm and manslaughter arising from failure to comply with workplace health and safety regulations, to tax offences, bribery and corruption, fraud against the State, embezzlement, computer fraud, environmental offences for breaches of the Environmental Code, to offences of unfair competition in the market, breach of trade secrets, bid-rigging, breach of privacy, etc., etc.
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Risks and penalties
The penalties provided for under Legislative Decree 231/01 are imposed in the form of instalments, the number of which is determined by the judge on the basis of the risk involved, the nature of the offence and the company’s assets. This applies where senior management violates one or more provisions of the Civil Code or the Criminal Code for the benefit or in the interests of the organisation, thereby committing the so-called predicate offence. The value of each unit is set at €250.00. The maximum statutory penalty applicable to the company in the event of a 231 ruling amounts to €1,549,000.00. The rulings are published in SOLE 24 ORE. Penalties include a ban on working with the public administration, a prohibition on advertising products and services provided by the organisation, and the confiscation of assets. In short, an organisation found guilty of a corporate administrative liability offence faces a completely compromised future. A 231 ruling does not preclude the prosecution of individuals guilty of the same offences under a separate legal procedure.
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The benefits of an effective organisational, management and control model in accordance with Legislative Decree 231/01
However, Decree 231 allows organisations to be exempted from liability for corporate administrative offences if, prior to the commission of the predicate offence (an offence that creates the conditions for another offence to be committed), they have effectively implemented an Organisation, Management and Control Model covering all sensitive activities, based on a preliminary 231 risk assessment.
GLOBAL CONSULTING S.A.S. is able to support companies in effectively designing and implementing a 231 OMC tailored to the specific organisation, as well as drafting implementation protocols and systematic controls designed to prevent such offences.
Furthermore, GLOBAL CONSULTING S.A.S. provides highly competent and experienced professionals for the establishment of a Supervisory Body (OdV) pursuant to Article 6, which monitors and supervises the organisation’s activities, updates and improves the Model through 231 risk planning, the application of management protocols, the carrying out of controls based on information flows, and the implementation of actions decided upon in an impartial and independent manner, to which the organisation must conform, in order to prevent offences and improve the effectiveness of the model. For those required to establish the MOGC and appoint a Supervisory Body after the predicate offence has been committed (post-factum), the law allows the judge to apply half of the financial penalties provided for.
