ITALY Law and Practice Contributed by: Alessandro Pistochini, Davide Giorgiadi, Giulia Barattini and Carlotta Scozia, Pistochini Avvocati Studio Legale
7.6 Level of Sanctions Imposed Concerning the level of sanctions imposed so far for the foregoing offences, see 7.5 Recent Landmark Investigations or Decisions and 5.1 Penalties on Conviction .
the offence by fraudulently circumventing the organisational model. According to Legislative Decree No 231/2001, the model must be considered “effective”; this means that, according to Article 6, paragraph 2 of the Decree, the model must: • identify the activities through which the crimes listed in the Decree could be commit - ted; • provide specific protocols designed to assist the company in taking and implementing company decisions in relation to the crimes to be prevented; • identify suitable procedures for managing financial resources to prevent crimes from being committed; • provide disclosure obligations to the supervi - sory board; and • provide a suitable disciplinary system. The adoption of the model is not mandatory for the company but is a necessary condition to avail of the exonerating circumstance provided for by Legislative Decree No 231/2001. Indeed, as highlighted in 3.3 Corporate Liabil- ity , the company has a duty to prevent bribery as an offence (as well as all the other crimes listed in Legislative Decree No 231/2001); in the event of failure to fulfil that obligation, an autono - mous liability might arise for not having adopted organisational models capable of preventing the crimes listed in the Decree from being commit - ted. Other tools essential for the implementation of the model – as usually stated by the courts – are disclosure of the content of the model and staff training:
8. Compliance Expectations 8.1 Compliance Obligations
Legislative Decree No 231/01 provides for an autonomous administrative liability of legal enti - ties if one of the crimes listed in the Decree (including bribery and corruption offences) is perpetrated in the interest – or to the benefit – of a company by persons who have representa - tive, administrative or management functions, or by persons under the direction or supervision of one of these persons. All such provisions are enforced by the Criminal Court (following an initiative put in place by the prosecutor), which has the duty to assess – usu - ally in the same proceedings – both individual and corporate liabilities, and to issue judgments of acquittal or conviction to the pecuniary and disqualification sanctions provided for in Article 9 of Legislative Decree No 231/2001. According to Articles 6 and 7 of Legislative Decree No 231/2001, in the event that a crime has been committed in the interest or to the ben - efit of a company, in order to avoid liability, enti - ties should (i) adopt the so-called organisational model in order to prevent the crimes listed in the Decree from being committed, (ii) appoint a supervisory board to oversee the implementa - tion of the organisational model and its updat - ing, and (iii) prove that there was no omission of – or insufficient – supervision of the super - visory board, and that individuals committed
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