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The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
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3.3.2. The Italian case
In Italy, Legislative Decree no. 231 introduced the Corporate Responsibility System for the commission
of crimes in 2001. However, since 1995, Italy began signing and ratifying international conventions to
protect the economy, including the European Community Convention signed in Brussels on 26 July 2005,
on the protection of the financial interests of the same Communities and the Convention of the
Organization for Economic Co-operation and Development signed in Paris on 17 December 1997, on the
fight against corruption of public officials in international economic transactions.
Legislative Decree 231 provides for the liability for legal entities following two criteria for imputation: one
is objective and the other is subjective. As to the first criterion, article 5 lists the hypotheses that engage
the responsibility of the organisation when the offence was committed in the interest of or to the benefit
of the corporation itself, by subjects inmanagement position or by others subjected to their supervision23.
The interest must exist and must be assessed ex ante (as the offence must have been committed in the
pre-existing specific interest of the company), whereas the benefit, being a purely material aspect, must
be assessed ex-post (after the commission of the offence24).
As to the second criterion, it refers to the lack of organisational duties of the company and the liability
for a crime caused by of organisational fault. It is necessary to make a distinction between the persons
who commit the crime, if they hold an apical position or they are in subordinate positions (regulated
respectively by art. 6 and 7 of the decree). When the crime is committed by persons who hold
management power, there is a presumption of liability for the organisation that can be overcome by
opposing evidence that the company put in place a model to prevent illicit behaviours.
The other subjective criterion for the attribution of liability is governed by article 7, attributing
responsibility to the body when the offence was committed in its interest and to its advantage when
failing to comply with the direction and supervision obligations. In this case, the relative presumption of
liability acts in favour of the body, since the burden rests with the prosecutor to prove that the body has
not had the appropriate organizational models, i.e. proving their ineffectiveness, in order to attribute
responsibility to the head of the same body. Responsibility for the body does not arise when, before the
commission of the offence, the legal person developed suitable models aimed at the prevention of crimes
of the same kind as the one committed.
The presumptive offences are provided for in Legislative Decree 231 at articles 24 to 26 . In particular,
with reference to the protection of the financial interests of the EU, the organisation is responsible for a
number of crimes against the Italian state and against EU interests, including:
- Indebted perception of payments, fraud to the State and the European Union in obtaining public
grants and IT fraud to the detriment of the State or of a public body;
- IT crimes and illegal data processing
- Organised Crime
23 ROSSI A. 2017. “La responsabilità degli enti (D.lgs. 231/2001): I soggetti responsabili”, in Rivista231 , available
online at (last accessed 30/06/2017).
24 PULITANÒ D. 2002. “Responsabilità amministrativa per i reati delle persone giuridiche”, in Enc. Dir., Milano, vol.
IV agg., p. 958. For more details:
n
(last accessed 30/06/2017).