Administrative Liability Entities: application security work

The general principles of Legislative Decree no. 231/01 and the introduction of the possibility of accidents and occupational illnesses as sources of liability of the Entity: art. 30 of Legislative Decree no. 81/08.

1.Il Leg. 231/01: general principles

The Legislative Decree no. June 8, 2001. 231, which introduced into our law a new and autonomous form of administrative liability of entities, has inevitably led to the need for a careful reflection of the corporate organizational system because of the consequences that may incur the entity at the realization of certain types of crime by senior management or employees thereof.

Of course it is necessary that the unlawful conduct has resulted in a benefit to the entity, or otherwise be made in his best interest as they are excluded by express provision of law, all those activities that are attributable to the mere interest of the person who performs them and thus have no repercussions on society to which they belong.

This decree, however, provides a form of exemption from administrative liability if the institution demonstrates that it has adopted and effectively implemented a model of organization, management and control capable of preventing the offenses covered by the Act.

The recent legislative actions in the field show a clear desire to extend the scope of application of the decree to the types of offenses that represent the materialization of risks related to the exercise of entrepreneurial activity.

Decree 231 provides for the liability of the fact in relation to a wide range of intentional offenses including those against the public administration, corporate crimes or crimes against industry and commerce.

It 'should be noted that the law provides for the adoption of the organizational model in terms of optionality and not of obligation not being subject to any penalty miss him.

However, we must not overlook the fact that the decision not to prepare an adequate organizational structure automatically triggers the liability of the entity at the time the offense was committed with the costly consequences that the law imposes on society.

If an entity adopts the model required by law we may reasonably invoke the clause of exemption from liability provided for in Article. 6 long as they meet the requirements therein.

Once built the system of organization and control of the company will have to prove, in the context of proceedings brought before the criminal court, the adequacy and suitability of the model to prevent the crime committed by the author of the illegal material.

We can therefore understand how the models of organization and control systems of such importance in the economy of the decree.

 

As for the crimes committed by senior management of the institution, it is the same Legislator (Article 6, paragraph 2), which is concerned to delineate in a rather analytical and detailed what should be the characteristics of the models of organization and management .

The mentioned article states that the task of supervising the functioning and observance of the models and their updating should be entrusted to a body with independent powers of initiative and control.

The supervisory body, in the spirit of the law, appears to be vested with the task of supervising and checking the proper functioning of the model.

The information contained in the standard have been developed by various associations (Confindustria, Assobiomedica, Reeds, etc.) which, through the enactment of its Guidelines, have offered valuable work tools to the companies concerned by the adoption of organizational models.

 

In a nutshell, the operational steps that an organization must follow to create their own model can be represented as follows.

It must first be made by the Company in relation to its specific activity, a sort of "risk assessment" through which business sectors are identified under which the offenses may be committed.

Subsequently, after a careful survey of corporate control system, it is necessary that they are developed protocols behavioral program aimed at training and the implementation of decisions in relation to the prevention of offenses.

In addition, they should be identified how to manage financial resources in order to prevent the commission of offenses.

Finally, they should be provided information obligations in respect of the supervisory body should also be introduced and a member of the disciplinary system to punish non-compliance with the measures indicated by the model.

 

2. The introduction of the possibility of accidents and occupational illnesses as sources of liability of the Entity: art. 30 of Legislative Decree no. 81/08.

As indicated above, the prediction of malicious case had led to the construction of a control system designed to prevent conduct voluntary in nature but the latest legislative changes have changed the frame of reference.

In fact, with the introduction of art. 25-f in Legislative Decree no. 231/01 by the law of 3 August 2007. 123 (later amended by Legislative Decree 9 April 2008 n. 81) were included in the category of offenses provided for by Legislative Decree no. 231/01 the cases referred to in Articles 589 (manslaughter) and 590 (negligent personal injury) of the Penal Code, committed in breach of the legislation in the promotion of hygiene and safety in the workplace.

This change represents a real revolution is in legal terms, because for the first time entering into the Decree 231 crimes of culpable nature, both in terms of operating more as it is evident the need to combine the system of regulations for the foundation for administrative liability with the complex rules provided for in accident prevention and hygiene and health at work.

The new hypothesis having a negligent nature involving subjects and business realities that before were thought to be completely unrelated to the offenses under until the reform of 2007.

The matrix of the malicious types of crimes until then introduced in the decree (crimes against the public administration, corporate crimes, organized crimes, etc ....) seemed to favor many authors for an application of Legislative Decree no. 231/01 as a requirement more connected to the world of big business often characterized by complex matrices company with corporate governance issues, sometimes difficult.

The extension to the above-mentioned hypothesis negligent instead has placed a significant problem for the adoption of the organizational model substantially in all companies where you can verify an accident at work or an occupational disease.

The attention of the legislature in respect of offenses committed in violation of the accident prevention regulations has been confirmed with the prediction, as part of the Consolidated Security, art. 30, which today is an indispensable reference standard for any company wishing to adopt an organizational model designed to protect the company in case of an accident.

 

That provision is the first case in which the Legislature has intervened analytically to indicate the minimum contents of the organizational model designed to be effective exemption for the Company with reference to the commission of the offenses referred to in Articles. 589 and 590 Č.p. In this way, we wanted to provide businesses with minimal trace to be followed in the preparation of the model by establishing a series of elements that must necessarily accompany the same.

The ratio probably lies in the belief that only by entering a scale of priorities would have really enabled firms to build a complete model and comprehensive and at the same time to achieve an optimal level of security below which you can not go.

Those who work in the field of security will immediately see how the requirements of art. 30, in fact, ripercorra the contents of a safety management system that provides for the fulfillment of the main legal obligations covered by Legislative Decree 81/08.

First and foremost it is essential to carry out a proper drafting of the document risk assessment, prepared in accordance with Articles. 15 et seq. of Legislative Decree no. 81/08, which is undoubtedly the most important document for proper security management and subsequently regulate other aspects relevant in the standard (eg. Information and training, health checks, contracts, etc.).

 

The aim is to ensure a system of protocols (or procedures) that allows you to check in practice, by the supervisory body, the implementation of the same in order to outline an efficient and capable of upholding the society from the administrative liability that might arise in case of commission of the offenses in question.

The model will be a tool not static but dynamic, able to adapt to the specific needs. For example, in the case of an injury that unambiguously show that the procedures were not effective or that in some way can be improved will be necessary to revise the same or whenever there is a technological innovation will be necessary to adapt the standard safety in the company.

In this sense, must be interpreted the provision of paragraph 4 where it is the revision of the model in case "they are found significant violations of the rules relating to accident prevention and hygiene at work, or when there are changes in the organization and in ' activities in relation to scientific and technological progress. "

 

The system thus outlined is characterized more and more because the adoption of an organizational model pursuant to Legislative Decree. 231/01 is not only a choice of a legal nature, intended to avoid condemnation company, but first of all an organizational decision.

For the system described is efficient it is necessary that the Company carries out a careful assessment of the type of activities and the nature and size, as indicated in Art. 30, third paragraph, and from this evaluation give rise to a clear organizational choice by identifying precisely the different profiles of responsibility regarding safety at work and the main sources of risk.

This process of C.D. risk assessment can be clear about the risks to which you will have to cope with the drafting of procedures designed to prevent violations of safety regulations.

However, you should clear away the facile suggestions. The organizational model clearly responds to the need to defend the Company under the criminal trial.

Who is to judge the effectiveness of the exemption model will not be a certification of the quality or an auditor but only criminal court. He will move his investigation with the specific purpose of verifying whether the model contains the requirements indicated in art. 30 of Legislative Decree no. 81/08 and, later, when the instructions contained in the protocols has been effectively implemented.

The more the system will be adhering to the provisions of art. 30 easier it will be the defense of the model and, consequently, system security management in the judiciary if the company were to be involved pursuant to Legislative Decree 231/01.

 

14/05/2010

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Source:

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