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| Organisational and Management Model in Accordance with Legislative Decree 231/2001 |
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Organisational and Management Model in Accordance with Legislative Decree 231/2001 |
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Introduction - Legislative Decree 231/2001 |
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Legislative decree 231/2001, entitled “Discipline of administrative responsibility in organisations, companies and associations ”, introduced a system of administrative responsibility on the part of bodies (companies, consortia and similar) regarding certain offences:
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Illicit receipt of contributions, loans or other funds by the state or other public bodies (article 316 (iii) of the criminal code); |
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Fraud to the damage of the state or other public bodies (article 640 of the criminal code); |
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Aggravated fraud for the receipt of public funds (article 640 (ii) of the criminal code); |
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Computer fraud to the damage of the state or other public bodies (article640 (iii) of the criminal code); |
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Corruption in deeds of office (article318 of the criminal code); |
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Corruption through an action contrary to official duty (article319 of the criminal code); |
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Corruption in legal deeds (article 319 (iii) of the criminal code); |
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Instigation to corruption (article 322 of the criminal code); |
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Extortion (article 317 of the criminal code); |
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Embezzlement to the damage of the state or other public bodies (article 316 (ii) of the criminal code) |
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as well as offences involving counterfeit money, public credit documents and stamp duties, and, more recently, the so-called company offences as described in legislative decree 61/2002, including false company announcements, false company announcements to the damage of shareholders or creditors, dishonesty in reports or communications to auditors, prevention of control, illicit return of funds, illegal sharing out of profits and reserves, illicit company and controlling company share operations, illicit operations against creditors, untruthful formation of capital, illicit division of company goods by receivers, illicit influence on shareholders' meetings, rigging the market, preventing public control bodies from performing their functions, offences that could be committed in the interest of or to the advantage of the bodies by
- individuals with representative, administrative or management roles in the bodies or organisational units with financial and operating autonomy, as well as by individuals responsible for the management and control of these,
- individuals involved in the management or monitoring of any of the above parties. These responsibilities are added to those of the individual who actually carried out the offence.
Article 6, sub-paragraph 1, of legislative decree 231/2001 lays down the possibility of exoneration from responsibility if the body is able to demonstrate that prior to the offence's being committed it had set up organisational and management models for the purpose of preventing offences of the kind committed, while sub-paragraph 2 specifies what requirements these models have to satisfy, with a view to:
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Being able to identify the activities within which the offences could be committed; |
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Laying down specific protocols geared towards programming training and the application of the body's decisions regarding the offences to be prevented; |
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Identifying the financial management methods that could prevent the offences from being committed; |
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Specifying the cases in which the control body monitoring the operation of and compliance with the model has to be informed; |
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Introducing a system of sanctions for failure to comply with the measures set out in the model. |
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