Tag Archives: #Italy

231 organizational models and code of conduct: do companies need both?

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Many Italian companies have equipped themselves with an organizational model under legislative decree 231 of 2001, as well as with a code of conduct. Are both needed and what is their relationship?

Light on such question has been shed by the Italian Supreme Court with a recent decision published on August 1, 2023, within a dispute where a third party claimed to have actionable rights on the basis of the provisions of the code of conduct.

The Court, while defining the code of conduct as an instrument of “preventive control of the correctness of the conduct of persons operating within and on behalf of the entity”, rejected the plaintiff’s claims on the sole basis of the interpretation of the provisions of the code of conduct. It added that “in companies, the Code of Conduct constitutes the necessary completion of the organization, management and control model of the entity, as a corporate document aimed at identifying, with reference to the ethics and values that inspire the business, the rights, duties and responsibilities of all those who participate in the business (employees and, where appropriate, external parties that have business relations with the companies)”.

In light of the above, it has been clearly confirmed as follows:

  • the code of conduct complements the 231 organizational model;
  • the provisions of the code of conduct must be interpreted considering the 231 organizational model; and
  • the provisions of the code of ethics apply to all subjects falling within the scope of application of the 231 organizational model.

Therefore, the 231 organizational model and the code of ethics have a strong connection, they both have to be adopted and interpreted in light of each other.

New ANAC Guidelines On Whistleblowing Legislation

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On July 12, 2023 the Italian Anti-Bribery Authority (“ANAC”) has issued the much awaited “Guidelines on the Protection of Persons Reporting Violations of Italian and European Law” (the “Guidelines”).

The Guidelines, inter alia, indicate who the recipients of whistleblowing reports may be. The reports may be handled, alternatively, by:

  1. an internal person within the administration/body; or
  2. an internal office within the administration/body with dedicated staff, even if not exclusively; or
  3. an external person.

With regard to private entities, ANAC requires that the person or office entrusted with the task to manage the reporting channel has autonomy, which, in the opinion of ANAC, is to be interpreted as impartiality and independence.

Furthermore, ANAC leaves certain room to identify such person or offices depending on circumstances. In fact, the Guidelines set forth that “for private entities, the choice of the entity to be entrusted with the role of the whistleblowing management is left to the organizational autonomy of each entity, in consideration of the requirements related to the size, the nature of the activity carried out and the actual organizational reality. [..] This role, purely by way of example, may be entrusted, inter alia, to the internal audit bodies, to the Supervisory Board provided for by the rules of Legislative Decree No. 231/2001, and to the ethics committees.”, thus confirming that the Supervisory Body can act as recipient of the reports.