ITALY Trends and Developments Contributed by: Francesco Isolabella and Luigi Isolabella, Studio Legale Associato Isolabella
and tax evasion. In the second, the allegations (again largely identical for all the involved parties) include tax evasion for logistics companies and both tax eva - sion and labour exploitation (“ caporalato ”) for fashion companies. In both cases, the Milan Prosecutor’s Office, instead of conducting case-by-case analytical assessments, relied on presumptive and statistical reasoning to per - suade the companies to resolve proceedings through settlements with the Revenue Agency and by revis - ing their organisational models, solutions that, though often costly and demanding, were preferable to fac - ing the uncertainties of a trial, with potentially greater reputational and economic damage. Thus, the choice between the uncertainty of trial and the relative certainty, albeit expensive, of negotiated settlements and organisational reform led nearly all the companies involved to opt for the latter. This evolution, originating with Legislative Decree 231/2001 and furthered by the development of com - pliance and the Milan Prosecutor’s strategies, has culminated – almost naturally, though not intention - ally – in the emergence of restorative justice as a des - tination point. This outcome necessitates reflection on the most effective defensive strategies in this context. The Turning Point: Legislative Decree 231/2001 Before 2001, the prevailing idea was that societas delinquere non potest (a company cannot commit a crime). If a manager or employee of a company com - mitted an offence, they were the only ones who could be held criminally liable and punished, even if the offence was strictly intertwined with the company’s mindset and strategy. Until the law on corporate crimi - nal liability came into force, companies could only be held civilly liable for damages (pursuant to Articles 2043 et seq. of the Civil Code) on the basis of “ culpa in eligendo, ” but nothing more. Decree 231 radically changed this perspective. By introducing criminal liability, it transformed compa - nies’ internal structures – from tools designed primar - ily to protect themselves against debtor insolvency – to mechanisms intended to protect citizens from the risks created by corporations themselves.
However, corporate liability arises only under specific conditions: • the underlying (“ predicate ”) offence, listed in the decree’s detailed and continuously updated catalogue, must have been committed by a senior manager or subordinate; • the offence must have been committed in the com - pany’s “interest or to its advantage”; • the entity must have failed to adopt or effectively implement an adequate organisational model capa - ble of preventing such offences; and • the entity must have failed to establish a superviso - ry body ( Organismo di Vigilanza , OdV) tasked with monitoring compliance, overseeing the model’s functioning and updating, and ensuring its effec - tive implementation, rather than letting it remain an inactive and thus counterproductive document. The model is not inherently exculpatory; adopting it alone is not enough. It must be implemented effec - tively through ongoing monitoring and staff training, with responsibilities assigned to the OdV. Consequently, the OdV, as well as the organisational, management, and control models ( Modelli di Organ- izzazione, Gestione e Controllo , MOG), have become key instruments for companies in managing liability and ensuring overall corporate compliance. Recent case law assesses the adequacy of such mod - els, emphasising risk management, notably in terms of functional separation, and the implementation of specific protocols subject to effective OdV oversight. Compliance and Restorative Justice: From Defensive Tools to Strategic Levers Compliance As noted, the enforcement of Decree 231 by public prosecutors, along with the de facto requirement that companies adopt and effectively implement suitable compliance models, has heightened corporate atten - tion to compliance in order to mitigate the risk of incurring any criminal liability. A “paper model” is not enough: the model needs to be implemented and become operational. Large cor -
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