ITALY Trends and Developments Contributed by: Francesco Isolabella and Luigi Isolabella, Studio Legale Associato Isolabella
Studio Legale Associato Isolabella Via Fontana 4 20122 Milan Italy Tel: +39 02 599 2101
Email: segreteria@studioisolabella.it Web: www.studioisolabella.com/en
Introduction Over the past twenty years, the Italian legislature and judicial system have transformed the approach to corporate liability. Starting from the need to pro - vide greater protection to citizens against risks arising from companies through the unlawful conduct of their directors and employees, they decided to move away from the principle that criminal liability – traditionally understood as “personal liability” – applied only to natural persons. Instead, they began following prac - tices typical of Anglo-Saxon legal systems, which for years had recognised criminal liability for legal entities as well. A formal turning point came in 2001 with Legislative Decree No 231/2001, which introduced corporate criminal/administrative liability into Italian law (here - after referred to simply as “criminal liability”). Since then, nearly twenty-five years ago, the Italian legislation and judicial system have undergone signifi - cant changes, building on the innovative codification of corporate criminal liability. This liability has enabled companies to develop a profound culture of compli - ance while allowing public prosecutors to structure investigations and litigation strategies differently. Prosecutors have increasingly distinguished between the positions of legal entities and those of natural persons, focusing more on corporate conduct. They understood that targeting legal entities could yield greater benefits, both in terms of compensating dam - ages caused by employees and directors and, through stricter compliance controls, in rebalancing the mar - kets in which the investigated companies operate.
In pursuing this path, the Italian legislature has, on one hand, sought to encourage and enhance compliance monitoring by companies (through the establishment of dedicated regulatory authorities such as Consob and the Bank of Italy for financial companies, ANAC for anti-corruption, and the Revenue Agency and Guardia di Finanza for tax and anti-money laundering offenses), and, on the other hand, adopted measures inspired – once again – by Anglo-Saxon systems, introducing tools of Restorative Justice and creating mechanisms to “replace” custodial penalties for natu - ral persons or interdictive measures for companies (such as the appointment of a judicial administrator or restrictions on contracting with the State, advertising, or selling goods or services) with sanctions of a dual nature: pecuniary, both punitive and compensatory, and “reconstructive,” consisting in activities meant to benefit the community. In this context, the Milan Prosecutor’s Office – which, through the first major cases on corporate criminal liability, initiated the path summarised above – has established two ongoing lines of investigation, pav - ing the way for an extensive and generalised, though not yet systematic, application of Restorative Justice (prior to its formal introduction into Italian law in 2022 through the Cartabia reform, currently only applicable to natural persons). The first investigation targeted dozens of foreign banks and financial institutions, while the second focused on numerous logistics and fashion companies. In the first, the alleged offences (virtually identical for all the institutions involved) include money laundering, unau - thorised financial activity, permanent establishment,
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