Tag Archives: 231 liability

A New 231? Italy’s Proposed Reform of Corporate Criminal Liability

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On August 4, 2026, the Italian Council of Ministers has approved a draft bill overhauling the rules on the liability of legal entities under Legislative Decree No. 231 of 2001. Below is a summary of the main changes.

  • Organizational fault as the sole basis for liability
    • Organizational fault (“colpa in organizzazione”) becomes the exclusive subjective criterion for imputing liability to the entity. Crucially, this eliminates the current reversal of the burden of proof: the prosecutor, not the entity, must demonstrate organizational failings.
  • Unified liability test — no more “apical vs subordinate” distinction
    • The current two-track system — which treats offences committed by senior management differently from those committed by subordinates — is abolished. A single criterion applies: the entity is liable only where a causal link is established between the failure to adopt (or effectively implement) an adequate compliance model and the commission of the offence.
  • Presumption of corporate interest or benefit for offences based on negligence
    • For offences based on negligence, a rebuttable presumption of corporate interest or benefit is introduced where the breach of applicable rules has resulted in appreciable cost savings or increased output.
  • Clearer compliance model requirements
    • The reform defines the essential content, adoption procedure, and revision process for compliance models. Models that follow guidelines issued by representative trade associations are presumed adequate; a court departing from that presumption must give specific reasons. In the field of occupational health and safety, models based on the UNI ISO standard carry full exonerating effect.
  • Simplified procedures for SMEs
    • The Minister of Justice is tasked with issuing a decree setting out simplified procedures for small and medium-sized enterprises to adopt and implement effective compliance models.
  • Expanded grounds for extinguishing liability
    • A new ground to extinguish liability is added for entities that take post-offence remedial action to cure the compliance gaps identified by the public prosecutor. Specific extinction rules apply to environmental and tax offences (remediation and full payment, respectively). In addition, liability is extinguished where the entity eliminates the organizational failures identified in the certified assessment.
  • Strengthened procedural safeguards
    • The public prosecutor must specify the organizational failings both in applications for injunctive measures and when formally charging the entity; failure to do so renders the proceedings null. Pre-trial seizure is excluded where the entity offers adequate security. Plea-bargaining is now available to the entity regardless of the parallel proceedings against the individual. A time-bar mechanism is introduced: liability is extinguished five years after an injunctive sanction of up to one year (or two years after a pecuniary sanction only), provided no offence of the same kind is committed in the interim.
  • Government delegation on sanctions and crimes giving rise to liability
    • The Government is delegated to adopt, within 8 months of the law’s entry into force, a legislative decree revising the sanctions framework and the catalogue of crimes giving rise to 231 liability, which should limit such crimes to those with greater connection to corporate activities.

This reform represents a fundamental shift in Italy’s corporate liability regime: it places organizational fault at the center of the system, removes the burden-of-proof asymmetry that has long been criticized by practitioners, and introduces meaningful incentives for entities to invest in robust compliance programs. Businesses operating in Italy — or with Italian subsidiaries — should assess the impact on their existing 231 models as the bill progresses through Parliament.

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.

The Impregilo Case Clarifies the Basis for Exemption from 231 Liability

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The Italian Supreme Court has recently published a judgment (no. 23401 of 2022, hereinafter the “Impregilo Case”) that sheds new light on certain elements of liability of Italian companies arising from legislative decree no. 231 of 2001.

Put it simply, legislative decree 231 has established quasi-criminal liability of companies when one of their employees commits a certain crime to its benefit or in its interest. The same law has established that the company is exempt from liability if (i) it has adopted an organizational and management model (“Model”) aimed at preventing such crimes, and (ii) it has appointed an independent compliance committee (“Committee”), which has diligently overseen the actual application of such Model. If a company has not adopted an adequate Model duly enforced by the Committee, then it is regarded as failing to diligently organize itself in order to prevent 231 crimes: having failed at its duty to prevent the crime, it is therefore at fault (so called “colpa in organizzazione”, or organizational fault) and liable. Additional information on 231 legislation can be found here.

In the Impregilo Case, which followed a tortuous path through courts of various instances, the Supreme Court has established very interesting principles:

  • The mere fact that a certain 231 crime has occurred is not sufficient to prove that the Model was inadequate: 231 liability of a company is not strict liability, rather is based on fault, i.e., depends on lack of diligence in preventing the crime.
  • Adequacy of the Model must be assessed with a focus on the specific crime occurred, and not with regard to the Model as a whole.
  • If the Model conforms to codes of conduct drafted by industry associations, a court has the duty to indicate which best practices would have effectively prevented the crime.

This judgement ultimately grants exemption from 231 liability and recognizes that, since the Model was based on best practices, it was adequately preventing the crime, even if the crime was in fact committed due to the choice of the company’s managers to circumvent the Model.

If this trend in case law continues, companies will have a stronger incentive to adopt, enforce and update Models diligently reflecting best practices in crime prevention.

New 231 Crimes Introduced

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New tax crimes that may trigger corporate liability have been introduced by the Italian budget law, namely by section 39 of law decree no. 124 of 2019 relating to fiscal measures (decreto fiscale).

The new section “25-quinquiesdecies” (sic!) applies to crimes of fraudulent tax statements through invoices or other inexistent transactions, invoicing inexistent transactions, fraudulent avoidance of tax payment and destruction of accounting documents.

As a result, companies that commit such fraudulent tax crimes are not only subject to tax liability, but also to “231” liability and punished with a monetary sanction up to 774,500 Euros. Such “231” liability may be in addition to the personal criminal liability of their directors. Additionally, in many cases the confiscation of money, goods or other benefits resulting from the tax crime also applies.

The new crimes will be in force starting from the publication on the Official Gazette of the law converting the above mentioned law decree, which must be converted by the Italian Parliament before Christmas Day.

Companies must therefore act in order to ensure that their 231 organizational models include sufficient provisions aimed at preventing such crimes, such as controls on the veracity of transactions, on the keeping of accounting documents and on the contractual counterparty indicated by the company’s tax documentation. Of course, we at Gitti and Partners can help!