ITALY Trends and Developments Contributed by: Francesco Isolabella, Luigi Isolabella and Enrico Maria Canzi, Studio Isolabella
c) Sectors potentially most exposed to risk: selected examples The regulatory framework outlined above, as recently amended, is particularly relevant to the following sec -
As regards to the liability of legal persons, Article 25-octies.2 of Legislative Decree No. 231/2001 intro - duces corporate liability for offences relating to the violation of European Union restrictive measures, with financial penalties which – unlike those applicable to other predicate offences, traditionally based on the quota system – are instead calculated by reference to global turnover, together with enhanced disqualifica - tion sanctions. This clearly reflects the intention to achieve the dis - suasive purpose underpinning the European Directive, considering that the quota-based criterion for calcu - lating sanctions arising from liability under Legislative Decree No. 231/2001 could sometimes lack deter - rent effect, particularly for large organisations. In this respect, the percentage ranging from 1% to 5% of global turnover is especially significant for large cor - porations, such as banks, financial institutions, asset management companies and, more generally, large multinational groups. Specifically, confirming the above, for the offences referred to in Articles 275-bis, paragraphs 1, 2 and 5, and 275-quater, paragraph 1, of the Italian Crimi - nal Code, as well as Article 12, paragraph 1-bis, of Legislative Decree No. 286/1998, the entity is sub - ject to a financial penalty ranging from 1% to 5% of global turnover in the financial year preceding the offence or, if lower, in the financial year preceding the application of the sanction. For the offences referred to in Article 275-ter, paragraphs 1 and 2, of the Ital - ian Criminal Code, the financial penalty ranges from 0.5% to 1% of global turnover. If global turnover can - not be determined, the sanction is fixed in absolute terms: from EUR3,000,000 to EUR40,000,000 for the more serious offences referred to in letter a), and from EUR1,000,000 to EUR8,000,000 for the offences under Article 275-ter of the Italian Criminal Code. In the event of conviction, the disqualification sanctions under Article 9, paragraph 2, of Legislative Decree No. 231/2001 also apply: from two to six years where the offence is committed by a senior manager, and from one to three years where it is committed by a person subject to the direction or supervision of others. In the event of repeated conduct, the financial penalties are increased by one third.
tors and areas of activity: • customs (import/export); • financial services (payments); • defence and dual-use goods;
• energy and commodities; • logistics and transport; • technology; • consultancy and corporate services; • luxury goods and patrimonial assets; and • international activities (NGOs, humanitarian organi - sations, international cooperation) in sanctioned areas. In any event, it should be noted that greater exposure to risk does not necessarily depend on the sector of activity in the abstract, but is linked to a series of con - crete factors, such as destination countries, the nature of foreign counterparties, the structure of beneficial ownership, possible commercial triangulations, the international payment channels used, and the involve - ment of intermediaries in carrying out transactions. The nature and type of risks connected with the newly introduced offences are a coherent expression of the intention of both the European and national legislators to make economic operators increasingly aware of, and responsible for, the characteristics and operating methods of their counterparties, whether customers, suppliers or other service providers. As it occurs in other areas of the legal system, such as recent Italian investigations concerning tax offenc - es arising from inadequate management of supplier relationships, particularly in the logistics, fashion and large-scale retail sectors, which led to a significant and widespread reassessment of corporate compli - ance concerning supplier qualification throughout the supply chain, the commission of the offences under discussion may also be prevented through the adop - tion of organisational safeguards capable of ensuring the proper and effective identification of commercial counterparties and/or customers.
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