Note by Niccolò Ballerini.

With judgment 33976/2022, the Fourth Criminal Section of the Supreme Court ruled again on the criteria for objective attribution of entity liability under D.lgs. 231/2001. In particular, the judgment addressed the question of possible exclusion of liability of the entity in consideration of the negligible nature of the advantage or the limited scope of the interest pursued, as well as the mere episodic nature of violations of occupational safety regulations.

The judgment originates from a case of workplace injury suffered by a seasonal employee of the entity, who, while slipping during grape harvesting and processing activities, inserted his hand into a grape collection tank lacking the necessary protective covers, thereby sustaining serious injuries. From these premises, the charge of serious negligent injury, committed in violation of occupational safety regulations, was brought against the chairman of the board of directors, as well as the administrative liability charge against the company under art. 25 septies, paragraph 3, D.lgs. 231/2001.

With regard to said underlying offense, committed by a person in an apex position, the territorial Court established the entity’s liability despite the adoption of an organizational model to which, however, no control systems adequate to prevent the injury corresponded.

The appeal to the Supreme Court was based on the premise that the entity’s liability had been erroneously established in relation to an isolated transgression due to an extemporaneous initiative, in the absence, according to the appellant, of proof of the systematic nature of occupational safety violations. Furthermore, the entity emphasized the negligible nature of the advantage obtained, namely the savings derived from the failure to introduce the protective cover for the grape collection tank, which would not have exceeded the sum of Euro 1,860.00 against the greater amount invested for the adjustment of the overall occupational safety system (approximately 100,000 – 150,000 Euro).

The Supreme Court, maintaining continuity with recent precedents on the matter, nevertheless emphasized that the entity’s interest may exist even in relation to an isolated transgression, without the need to prove the systematic nature of occupational safety violations, when other factual evidence demonstrates the purposive connection between the violation and the entity’s interest.

With regard to the particular negligibility of the entity’s savings, the Court of Legitimacy instead recalled its own precedent: “the entity’s liability cannot be excluded in consideration of the negligible nature of the advantage or the limited scope of the interest pursued, since even the failure to adopt precautions aimed at or resulting in limited cost savings may be a cause of serious personal injuries (Cass. pen. sez. IV, no. 24696 of 20/04/2016)“.

That said, the Supreme Court maintains that, in order to prevent an automatic application of the rule that would excessively expand its scope of operation to every case of failure to adopt any preventive measure, even an isolated one, the negligibility of the savings may be relevant to exclude the profile of interest and/or advantage and, consequently, the entity’s liability, in the event that the violation occurs in a context of general compliance by the enterprise with safety provisions. However, according to the Court, it is still necessary that “the violation does not concern an area of significant risk, because otherwise it becomes impractical to sustain the absence of organizational fault, with respect to a violation of an essential precautionary rule for the proper functioning of the safety system“.

In the case at hand, according to the Cassation’s judgment, the violation of occupational safety regulations pertained to an area of risk inherent to a sector of significance, thus resulting in the relevance of the charge of organizational fault and the demonstration of the objective connection between the perpetrator’s conduct and the advantage, albeit patrimonially negligible, of the entity.