ITALY Law and Practice Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
5. Corporate Liability, Compliance and Defences 5.1 Corporate and Individual Liability Legal entities (companies and other organisations) may be held concurrently liable alongside the indi - vidual who committed the offence. Proceedings are typically conducted before the same criminal court, but liability is legally distinct: a conviction or acquit - tal of the individual does not automatically determine the same outcome for the entity. Corporate liability may arise even where the individual perpetrator is not identified or is not prosecutable. There is no general concept of group liability. A parent company may be held liable only where the require - ments of Decree 231 are independently satisfied – for instance, where the offence was committed in the par - ent’s interest or to its advantage by individuals func - tionally linked to it, including in cases of overlapping management, integrated organisational structures, or where the parent exercises de facto direction and control over the subsidiary and is concretely involved in the unlawful conduct. There is no direct equivalent to US-style successor liability. However, pursuant to Decree 231, in cases of mergers, demergers or corporate transformations, liability may transfer to the successor legal entity. 5.2 Compliance Programmes In Italy, companies are not formally required to adopt financial crime compliance programmes, but they are strongly incentivised to do so, as the existence of an effective compliance programme is required for mounting a defence against corporate liability (see 1.1 Scope of Financial Crime and General Criminal Law Principles ). 5.3 Defences and Exceptions In Italy, financial crime offences are subject to the general criminal law defences under the ICC. In prac - tice, the most relevant defence is the absence of the required mental element. Defendants may also rely on evidentiary defences, procedural defences or the expiry of the statute of limitations.
below a statutory threshold, generally assessed on household income), without a merits test. If granted, legal aid is generally fully funded by the state with no upfront legal costs for the defendant. However, the state retains the right to recover all sums paid where admission is revoked – in particular where the income conditions were found to have been origi - nally or subsequently absent, or where the applicant provided false declarations in their application – which The defendant has no right to elect the court of juris - diction (which is determined by law according to the nature and seriousness of the offence) nor venue (which is determined by law according to the place where the offence was committed, with subsidiary cri - teria applying where that place is unknown). However, the defendant does have significant choice over the mode of trial (see 6.1 Prosecution and Resolution Mechanisms ). Financial crime cases are not allocated to specialised courts. However, certain bigger courts – eg, the Milan or Rome courts – have specialised criminal sections concentrating economic and financial crime pros - ecutions, though this is an organisational rather than statutory designation. 4.5 Trial by Jury Italy does not have jury trials in the common law sense. Financial crime cases are tried exclusively by professional judges – either a single judge or a col - legiate panel of professional judges, depending on the seriousness of the offence. also constitutes a criminal offence. 4.4 Venue and Specialisation The only Italian institution involving lay participation is the Corte d ’ Assise , which sits with two professional judges and six lay judges. However, its jurisdiction is limited to very serious offences – principally those carrying life imprisonment or a maximum sentence exceeding 24 years – and financial crime cases do not fall within its authority.
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