All posts by Giulia Titola

Corporate Liability Under Legislative Decree No. 231/2001: Latest Developments

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Recently, the regulatory framework of administrative liability of entities for criminal offences has been partially amended, by (i) recognizing its central role within the framework of public tenders’ regulations, and (ii) expanding the catalogue of predicate offences (reati presupposto or 231 crimes).

  • 231 Corporate Liability as Ground for Exclusion from Public Tenders

Legislative Decree no. 36/2023, i.e., the new Italian Public Tenders Code (“PTC”), distinguishes between causes of automatic exclusion (Section 94) and causes of non-automatic exclusion from public tenders (Section 95).

In case of:

  • a criminal conviction or disqualification measure for the criminal offences listed under Section 94, paragraphs 1 and 2, of the PTC issued against an economic operator under Legislative Decree No. 231/2001 (Section 94, paragraphs 3, lett. a) and 5), or
  • a disqualification sanction referred to in Section 9, paragraph 2, lett. c) of Legislative Decree no. 231/2001 (or of any other sanction entailing the prohibition to enter into agreements with public entities)

the sanctioned entity will be automatically excluded from the public tender.

Moreover, if a 231 crime is ascertained, or even only contested, then a “serious professional offence” is triggered, which may lead to a non-automatic cause of exclusion from the public tender (Section 98 of the PTC).

  • New 231 Crimes

Following the PTC, Law no. 137/2023 increases the number of 231 crimes by providing for the inclusion of the following criminal offences:

  • Obstruction of tender procedures (in Italian, “Turbata libertà degli incanti”, Section 353 of the Italian criminal code), i.e., hindering or disrupting a public tender or turning away bidders by violence, threats, gifts, promises, collusion or other fraudulent means;
  • Obstruction of the choice of contractor procedure (in Italian, “Turbata libertà del procedimento di scelta del contraente”, Section 353-bis of the Italian criminal code), i.e., disruption of the administrative procedure by way of violence or threats, or by gifts, promises, collusion or other fraudulent means, in order to influence the manner in which the public administration chooses a contractor; and
  • Fraudulent transfer of values (in Italian, “Trasferimento fraudolento di valori”, Section 512-bis of the Italian Criminal code), i.e., fictitious attribution of the ownership or availability of money, goods or other utilities for the purpose of avoid the application of the provisions of the regulation on asset prevention measures or smuggling, or of facilitating the commission of one of the offences referred to in Sections 648, 648-bis and 648-ter.

The novelties described above shows the Italian legislator’s increasing attention to the conduct of entities participating in public tenders, and will result in the need to review and update the 231 model already adopted by entities, in order to (i) provide for procedures to ensure correctness of the company’s conduct with specific regard to participation in public tenders, and (ii) take into account the three new 231 crimes.

Recent Amendments to Legislative Decree no. 231/2001 on Corporate Liability: Is Your Company Impacted?

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New Crimes under Legislative Decree no. 231/2001. The list of crimes triggering corporate liability under Legislative Decree no. 231/2001 was recently expanded by Legislative Decree no. 184/2021, implementing Directive (EU) 2019/713 “on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA”. As a result, Section 25-octies.1 on “Crimes related to non-cash payment instruments” was introduced. Such crime arises in case of:

  • Unlawful use and forgery of non-cash payment instruments;
  • Possession and dissemination of equipment, devices or computer programs aimed at committing offences concerning non-cash payment instruments; and
  • Computer fraud, provided for by Article 24 of Legislative Decree No. 231/2001, for which an aggravating circumstance has been introduced in case the conduct results in the transfer of money, monetary value or virtual currency.

Sanctions for committing such crimes are monetary fines up to 800 quotas and the application of blacklisting sanctions.

Amendments to the Italian Criminal Code. Legislative Decree No. 195/2021, implementing Directive (EU) 2018/1673 “on combating money laundering by criminal law”, introduced several amendments to Sections 648, 648-bis, 648-ter and 648-ter.1 of the Italian Criminal Code, providing for the offences of receiving stolen goods, use of goods of unlawful origin, money laundering and self-laundering, all already included in the catalogue of predicate offences under Section 25-octies of the Legislative Decree No. 231/2001. More specifically, the above-mentioned Legislative Decree amended the provisions:

  • By extending the scope of the crime of receiving stolen goods also to contraventions and by providing for an aggravating circumstance in case the offence is committed in the exercise of a professional activity;
  • By extending the scope of the crimes of money laundering and self-laundering also to culpable offences and contraventions;
  • By extending the scope of the crime of use of goods of unlawful origin crime also to contraventions.

Further Proposed Legislative Amendments. Draft law No. 2427 provides for the inclusion of agri-food crimes the list of predicate offences under Legislative Decree No. 231/2001, with the aim of safeguarding public health, with a focus on the traceability of raw materials and products, hygiene violations, and combating fraud in trade, from agro-piracy to Italian sounding. However, the bill has been submitted to Parliament but has not been approved yet.

Any Impacts for Your Company? If your company has not yet adopted an organizational model pursuant to Legislative Decree no. 231/2001, then it will obviously need to consider all the above crimes, in addition to those previously existing. If, instead, your company has already adopted a 231 model, it will be necessary to check if it is at risk of committing such new offences. It would be advisable to carry out a new risk assessment aimed at ensuring that the model is duly updated.